MEMORANDUM OF DECISION AND ORDER ON A 28 U.S.C. § 2255 PETITION TO VACATE, SET ASIDE OR CORRECT SENTENCE
Petitioner Deborah Charles was arrested on March 13, 2000, after deplaning at Logan International Airport from a flight originating in Zurich, Switzerland with 8.19 pounds of heroin concealed in a bag of seafood. Charles confessed to the crime and agreed to cooperate with federal authorities. On July 26, 2000, Charles pled guilty to a two count superseding indictment alleging conspiracy to import heroin (21 U.S.C. § 963), and the unlawful importation of heroin with the intent to distribute (21 U.S.C. § 952(a) and 960(a)). The offenses were punishable by a sentence of life imprisonment and were subject to a mandatory minimum sentence of ten years.
Charles entered into a plea agreement with the government. The agreement stipulated a base offense level of 34 (premised on the importation of more than three and less than ten kilograms of heroin). The government agreed that a two-level downward departure was appropriate based on Charles' minor role in the importation scheme, and that Charles deserved a three-level downward departure for acceptance of responsibility. The government acknowledged that Charles was a candidate for the so-called "Safety Valve Provision" (netting a further two-level downward adjustment and, by operation of 18 U.S.C. § 3553(e), relief from the mandatory minimum sentence). The government also agreed to recommend a sentence at the low end of the applicable guideline range. Finally, if in the judgment of the United States Attorney, Charles were to render "substantial assistance in the investigation or prosecution of another person who has committed a criminal offense," the government agreed to file motions pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), permitting the court to impose a sentence below that otherwise required by law. In the event the United States Attorney were to decline to file a "substantial assistance" motion, Charles reserved the right to seek a downward departure on grounds of aberrant behavior and extraordinary acceptance of responsibility. She also agreed that "there [was] no other basis for a departure."
Charles was sentenced on November 15, 2001. The court accepted the determination of the Probation Department that Charles had met the requirements of the Safety Valve Provision. It also adopted the downward adjustments contemplated by the plea agreement. The resulting Total Offense Level (TOL) of 27, and Criminal History Category of I, indicated a sentencing range of 70-87 months. The government reported that Charles' efforts to provide substantial assistance had not borne fruit and that the United States Attorney had consequently decided against filing a § 5K1.1 motion. Charles' counsel did not advocate for a downward departure, stating that he did not believe that a departure could be supported. The court sentenced Charles to an incarcerated sentence of 70 months.
Represented by new counsel, Charles seeks to set aside her sentence, arguing that her prior counsel rendered ineffective assistance by failing to advocate for a further reduction in the TOL on grounds that Charles was a minimal (as opposed to a minor) participant in the importation scheme, for failing to challenge the government's refusal to file a § 5K1.1 motion, and for failing to press for a departure on the ground of extraordinary acceptance of responsibility (one of the grounds reserved in the plea agreement1) or on the additional grounds of exceptional family circumstances, unusual medical impairment, extraordinary rehabilitative efforts, exceptional remorse, and the unlikelihood of recidivism.
An issue arises regarding the standard that a court is to apply when the reviewing judge is also the judge before whom the arguments for a further reduction in a defendant's sentence would have been made. At the hearing on Charles' motion, the court suggested, and the parties agreed, that a three-step analysis was appropriate. First, the court should presume that counsel's failure to advocate for a further downward adjustment in Charles' sentence amounted to ineffective assistance. Second, the court should decide whether any of the suggested grounds for departure might be applicable in Charles' case. And finally, at the third step the court should determine whether it would have exercised its discretion to depart had a potentially applicable ground for departure been advocated.
A. Substantial Assistance
The decision to file (or not file) a § 5K1.1 substantial assistance motion lies within the government's discretion, unless its refusal to do so is based on a discriminatory motive or is "not `rationally related' to any `legitimate' government end." Wade v. United States, 504 U.S. 181, 186 (1992). See also Carey v. United States, 50 F.3d 1097, 1101 (1st Cir. 1995). A defendant who claims to have rendered substantial assistance under the terms of a plea agreement may attack the government's "bad faith" in refusing to file a § 5K1.1 motion. If challenged, however, the government's burden is simply one of production. If the government satisfies this not onerous burden, the trial court is not obligated to entertain the challenge further unless the defendant is able to make a "substantial threshold showing that the government acted in bad faith." United States v. Alegria, 192 F.3d 179, 187 (1st Cir. 1999).
Charles does not argue that the government's refusal to file a § 5K1.1 motion was motivated by a discriminatory animus or by any other constitutionally forbidden motive. She rather recites her efforts to render substantial assistance, efforts that in her mind were "very important," potentially risky, and unfairly devalued by the government. She also cites the assurance given by an unnamed Customs Agent that a particular piece of information that she was able to provide was deserving of credit "right away." While it appears that authorities considered using Charles in a trial in the Northern District of Illinois, the Chicago prosecutors ultimately decided against calling Charles as a witness. Nor, according to the government, did Charles provide any information of tangible value, only generalizations about the supposed practices of Nigerian drug smugglers. Because Charles has failed to meet her burden of showing irrational conduct or bad faith on the part of the government, the formidable door precluding district court review of the government's refusal to file a § 5 K1.1 motion remains firmly shut.
Charles' alternative argument that even absent the authority to depart under § 5K1.1, the court could nonetheless have departed under § 5K2.0 is foreclosed by Alegria.
The appellant's final departure-related argument is that, if the absence of a government motion places section 5K1.1 beyond his reach, the district court, given his cooperation, nonetheless should have departed downward under the general departure guideline, USSG § 5K2.0. See generally Koon v. United States, 518 U.S. 81, 94-95, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (discussing the circumstances in which departures under § 5K2.0 are proper); United States v. Dethlefs, 123 F.3d 39, 44 (1st Cir. 1997) (same). We need not linger over this importuning. The three courts of appeals that have addressed the question since Koon agree that section 5K1.1 occupies the field and that departures for substantial assistance, however labeled, are available only under section 5K1.1. See In re Sealed Case, 181 F.3d 128, 140-42 (D.C. Cir. 1999); United States v. Solis, 169 F.3d 224, 227 (5th Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 112, 145 L.Ed.2d 95 (1999); United States v. Abuhouran, 161 F.3d 206, 213 (3d Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1479, 143 L.Ed.2d 562 (1999).
We had left the question open in a pre-Koon case. See United States v. Romolo, 937 F.2d 20, 25 (1st Cir. 1991). We now answer it, adopt the reasoning of our sister circuits, and hold that a defendant's assistance to the prosecutor cannot serve as the basis for a section 5K2.0 departure. By necessary implication, then, the district court did not err in refusing to depart downward based on Alegria's cooperation.
Alegria, 192 F.3d at 189.
B. Role in the Offense
U.S.S.G. § 3B1.2 permits the court to award a downward adjustment in the TOL to a defendant who is able to show that she was less culpable than most of the participants in the instant offense and was also less culpable than the "average" person who commits a similar crime. United States v. DeMasi, 40 F.3d 1306, 1323 (1st Cir. 1994). The adjustment is typically two points for a "minor" participant and four for a "minimal" participant (or three points in the middling case). As Application Note 3(C) observes, the decision whether to apply the reduction is intensely fact driven.
Because Charles' cooperation did not lead to the apprehension of her purported confederates, it is difficult to position her precisely in the organizational chart of the conspiracy. Her role was presumably less culpable than that of the mastermind of the scheme, if one believes her account of the woman in Lagos whom she says supplied the drugs and arranged her travel (although one might be permitted some skepticism given her inability to provide any reliable details about how and to whom the drugs were to be delivered). On the other hand, her role was more culpable than the street dealers at the bottom end of the distribution chain.
Casting herself as nothing more than a "replaceable part" in the importation, and claiming that she believed (somewhat improbably given the weights involved) that she was smuggling ounces, and not pounds, of heroin, Charles argues that she should have been awarded an additional two-level reduction as a minimal participant. Even if I were to credit Charles' version of events, I have difficulty with this argument. A minimal participant in a crime is one whose participation was incidental to its commission and without whom the crime would have been committed regardless. Examples might be a defendant whose role in a drug conspiracy is limited to the purchase of cellular telephones to facilitate communications among the more meaningful conspirators, or the street-level distributor who supplies small quantities of drugs to consumers. The courier, on the other hand, is the sine qua non of a smuggling offense. While it is true that a courier is a "replaceable part" in an importation scheme, in the sense that all but the organizers are presumably replaceable, Charles' part is not as fungible as she claims. The courier operates at a higher level of risk and sophistication, and plays a far more significant role than the street vendors to whom Charles attempts to analogize herself. See United States v. Lopez-Gil, 965 F.2d 1124, 1131 (1st Cir. 1992) ("[A] drug courier is not entitled as of right to a reduction of the offense level as a minimal or minor participant."); United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990) (same) ("Couriers are indispensable to the smuggling and delivery of drugs and their proceeds."); United States v. Cepeda, 907 F.2d 11, 12 (1st Cir. 1990) ("The district court was not legally required to consider appellant [a self-proclaimed one time courier] to have been a minimal or minor participant in [the instant] offense, for he did deliver the heroin and he did collect the money for it."). Under the circumstances, the Probation Department's recommendation that Charles be treated as a minor and not a minimal participant was perhaps more generous than Charles deserved.
C. Medical Condition
Departures based on health issues are "discouraged" and only justified "where medical problems are `present in unusual kind or degree.'" United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir. 1994). At a minimum, a defendant is expected to show that she suffers from an impairment that is beyond the capacity of the Bureau of Prisons to treat, or that incarceration would directly aggravate her condition. United States v. Lujan, 324 F.3d 27, 31 (1st Cir. 2003). Charles maintains that after her arrest, she was diagnosed with a pituitary tumor and suffered side-effects such as dizziness, headaches, blurred vision, and weight loss. The condition was treated with medication during Charles' pretrial incarceration at MCI-Framingham, apparently with success, as Charles reported during her presentence interview that she is no longer taking medication. There is no credible suggestion that the Bureau of Prisons is any less able to treat this unfortunate, but not exceptional condition, than was MCI-Framingham.
D. Extraordinary Family Circumstances
Family circumstances are another discouraged ground for departure and are to be taken into account only where the facts are "extraordinary," or where a defendant is truly "irreplaceable" as a caretaker. United States v. Pereira, 272 F.2d 76, 82-83 (1st Cir. 2001). See also United States v. Bogdan, 284 F.3d 324, 330 (1st Cir. 2002). Charles is the single mother of two small boys, for whom she claims to be the sole source of financial support. (Since Charles' arrest the boys have been in the care of her sixty-five year old mother in Lagos, Nigeria). According to Charles, other family members are either unwilling or unable to contribute to the support of the boys. One difficulty, of course, lies in the fact that this information is impossible to verify. During the compilation of the presentence report, Charles reported having three brothers, one a businessman living in Sacramento, California, another employed by a vegetable oil company in Lagos, and a third involved in a Lagos-based South African business, as well as a sister living near Lagos who is employed by the Nigerian Navy. Charles also acknowledged that the common-law husband of one of her children lives in Lagos, although Charles contends that he has never provided support for his child. Given Charles' extended family, most of whom live in Lagos, I am skeptical of Charles' claim that her children are utterly destitute and deprived of care.2 The hardship that Charles has inflicted on her children is no more compelling than the circumstances presented in cases like United States v. Archuleta, 128 F.3d 1446, 1450 (10th Cir. 1997); United States v. Dyce, 91 F.3d 1462, 1466-1467 (D.C. Cir. 1996), cert. denied, 519 U.S. 1018 (1996); United States v. Brown, 29 F.3d 953, 961 (5th Cir. 1994); United States v. Harrison, 970 F.2d 444, 447-448 (8th Cir. 1992); United States v. Chestna, 962 F.2d 103, 107 (1st Cir. 1992); United States v. Mogel, 956 F.2d 1555, 1565 (11th Cir. 1992); and United States v. Headley, 923 F.2d 1079, 1082-1083 (3d Cir. 1991); all of which involved single parents with children who were as impacted as are Charles' sons, and in all of which departures were found to be unwarranted.
E. Extraordinary Acceptance of Responsibility and Efforts at Rehabilitation
Charles' arguments for her "extraordinary acceptance of responsibility" are essentially a reprise of her failed efforts to provide substantial assistance to the government and provide no independent basis for a downward departure outside of the § 5K1.1 context. Charles' confession and attempts to cooperate are commendable, but not an unusual response on the part of a defendant who is caught red-handed and who realizes that cooperation is the only means of salvaging her situation.
Charles' miscellaneous arguments regarding her rehabilitation, remorse, and reformation fare no better. Post-offense efforts at rehabilitation provide a "hen's-teeth rare basis" for a departure. United States v. Craven, 239 F.3d 91, 99 (1st Cir. 2001). Moreover, as the government points out, most of the rehabilitative efforts that Charles has undertaken post-date her sentence and could hardly have influenced the sentencing court. Charles' extreme remorse, even if credited, is simply not a basis warranting a departure. Bogdan, 284 F.3d at 330. And finally, Charles' claim that the likelihood of recidivism on her part is nonexistent is contradicted by her own pleadings in which she claims that after her first smuggling experience, she foreswore any future involvement with drugs, only to succumb again to financial pressure by involving herself in the instant offense.
CONCLUSIONS OF LAW
Under the familiar standard of Strickland v. Washington, 466 U.S. 668, 688-689 (1984), a defendant must demonstrate both that trial counsel's performance fell below an objective standard of reasonable effectiveness, and that counsel's deficient performance was so prejudicial as to undermine confidence in the outcome of the proceeding.3 While ineffective representation of counsel will be presumed in this case, "[a]ddressing the prejudice prong prior to evaluating counsel's conduct is a permissible approach and even endorsed where more efficient." Gonzalez-Soberal v. United States, 244 F.3d 273, 277-278 (1st Cir. 2001). The "prejudice" element of an ineffective assistance claim presents a high hurdle. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, at 691. The requisite showing of prejudice requires more than postulating that counsel's "errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, a defendant must affirmatively demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Here, even presuming that Charles received ineffective representation, there was no prejudice. Had any of the additional grounds of departure or further adjustments in the TOL now contemplated been advocated at the sentencing hearing, they simply would not have affected the decision of the court, either because they are not applicable or because they are insufficiently supported by the facts that were or might have been made available to the court. Consequently, the motion to vacate, set aside, or correct petitioner's sentence is DENIED.
1. The additional reserved ground of aberrant behavior is not pressed for the obvious reason that in seeking to qualify for the Safety Valve Provision, Charles admitted that she had been involved in a similar and successful importation scheme with the same coconspirators a year earlier. See United States v. Catucci, 55 F.3d 15, 19 n. 3 (1st Cir. 1995) ("[S]ix circuits have determined that `aberrant behavior' is not established unless the defendant is a first-time offender. . . ."). See also United States v. Grandmaison, 77 F.3d 555, 563 (1st Cir. 1996).
2. It is not clear to me how Charles, if she were released, proposes to provide financial support for her children. She reports that the ruin of her clothing business and consequent inability to provide for her children was the motivation for her becoming involved in drug smuggling.
3. Charles argues that under United States v. Cronic, 466 U.S. 648, 658-659 (1984) and Bell v. Cone, 122 S.Ct. 1843, 1851 (2002), she is not required to show prejudice. This, I think, misstates the case. The Cronic standard applies only when an accused is denied counsel at a critical stage of the proceedings, or "if counsel `entirely fails to subject the prosecution's case to meaningful adversarial testing,'" or when counsel "is called upon to render assistance under circumstances where competent counsel very likely could not." Bell, 122 S.Ct. at 1851. Of the three Cronic possibilities, only the second arguably applies to Charles' case. However, "[w]hen we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete." Id. Here there was no complete failure of representation, but a claim that counsel did not do everything that could have been done to achieve a reduction in Charles' sentence over and above the substantial reduction (when the mandatory minimum sentence is considered) that she did in fact receive.