The opinion of the court was delivered by: Walker, District Judge.
Jaime Aberlado Basalo was convicted by a jury on December 17,
1997, on three counts: (1) conspiracy to export cocaine in
violation of 21 U.S.C. § 963 and 953(a); (2) conspiracy to possess
with intent to distribute cocaine in violation of 21 U.S.C. § 846
and 841(a)(1) and (3) aiding and abetting possession with intent
to distribute cocaine in violation of 18 U.S.C. § 2 and
21 U.S.C. § 841(a)(1). This order imposes sentence for these offenses.
The relevant factual background is provided in the presentence
report and the parties' sentencing memoranda. Basalo is a native
of Uruguay who has resided in Australia for most of his life and
has become an Australian citizen. He has been in federal custody
since his arrest on February 27, 1996.
Acting on information received from Australian officials,
federal customs agents detained codefendants Mark Duggan and
Euripidis Mitrou as they were boarding a flight from San
Francisco to Sydney on February 26, 1996. Agents searched Duggan
and Mitrou and found a total of 7.9
kilograms of cocaine in packages strapped to their bodies.
Further investigation led agents to Basalo and codefendant
Michael Wayne Sanderson, who were staying in a San Francisco
hotel. When officers detained Basalo and Sanderson, they
discovered in their possession luggage containing $97,700 in
cash, latex gloves laced with cocaine residue, bandages, adhesive
tape and documentary evidence of a smuggling operation linking
Sanderson, Basalo, Duggan, Mitrou and another Australian, Gilbert
Four defendants (Basalo, Sanderson, Duggan and Mitrou) were
charged in a superseding indictment.*fn1 Duggan and Mitrou
pleaded guilty to all three counts and testified for the
government at the trial of Sanderson and Basalo. According to
their testimony, Duggan and Mitrou were recruited in Sydney to
fly to the United States with cash and to return with cocaine.
They testified that they carried about $22,500 and $80,000,
respectively, to the United States in February 1996. Upon their
arrival they met with Sanderson and Basalo, who accepted the cash
and, immediately prior to the return flight to Sydney, assisted
in strapping cocaine to the bodies of Duggan and Mitrou.
At trial, Duggan and Mitrou also testified about a similar trip
to the United States in December 1995, during which they and a
third courier, Mary Barnes, met Basalo in San Francisco.
According to their testimony, on December 12, 1995, the day of
their return flight to Sydney, Basalo assisted in strapping
approximately four kilograms of cocaine each to Duggan, Mitrou
and Barnes (for a total of 12 kilograms) which was successfully
smuggled into Australia.
The court sentenced Duggan and Mitrou on February 10, 1998, and
imposed, after granting the government's motion for a downward
departure for substantial assistance, a term of 24 months
imprisonment and five years supervised release. These sentences
amounted to time served. By order of June 29, 2000, the court
sentenced Sanderson to 51 months imprisonment on each of three
counts to run concurrently, see United States v. Sanderson,
110 F. Supp.2d 1221 (N.D.Cal. 2000); the term amounted to time served
and Sanderson has since been released and returned to Australia.
On August 1, 2000, the court heard argument on Basalo's
sentencing, gave the defendant his right of alocution and took
the matter under submission.
Pursuant to 18 U.S.C. § 3553(a)(4), the court must establish a
sentencing range by reference to the United States Sentencing
Under USSG § 3D1.2(d), in cases in which the base offense level
will be determined by the quantity of a substance involved, the
counts of conviction are grouped together for sentencing
purposes. For such grouped counts, the court must determine the
offense level under USSG § 2D1.1(a)(3) by reference to the
aggregated quantity of: (1) the controlled substance involved in
the charged offense and (2) any controlled substances relating to
relevant conduct within the meaning of USSG § 1B1.3(2).
The court finds that the government has established, by a
preponderance of the evidence, that the quantity of cocaine upon
which the base offense level must be determined is approximately
20 kilograms, comprising 7.9 kilograms from the February 1996
smuggling attempt and approximately 12 kilograms from the
December 1995 effort. Basalo has admitted in a post-trial
debriefing that these quantities are accurate. The base offense
pursuant to the drug quantity table of USSG § 2D1.1(c), is 34.
The parties agree that Basalo has no known prior convictions in
the United States or Australia and therefore falls within
criminal history category I. See USSG § 4A1.1.
The so-called "safety valve" provision of 18 U.S.C. § 3553(f) is
relevant to Basalo's sentence in three important respects. First,
if Basalo meets the safety valve criteria, the statutory minimum
sentence of ten years, see 21 U.S.C. § 841(b)(1)(A), does not apply.
18 U.S.C. § 3553(f). Second, according to the specific offense
characteristic adjustments of USSG § 2D1.1(b), Basalo would be
entitled to a two-point downward adjustment to the base offense
level. See USSG § 2D1.1(b)(4). Finally, one safety valve factor —
whether the defendant is an organizer, leader, manager or
supervisor in the offense — mirrors the inquiry for a sentence
adjustment under the guidelines for aggravating role. See USSG §
3B1.1. The government seeks a four-level upward adjustment to the
offense level pursuant to this provision.
There are five safety valve factors, and no dispute on four of
them: Basalo does not have more than one criminal history point;
he did not use violence or a firearm in connection with the
offenses; the offenses did not result in death or ...