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UNITED STATES v. DONATIU

August 3, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT DONATIU, Defendant


Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

I. INTRODUCTION

 Defendant Scott Donatiu ("Donatiu") is before the Court for sentencing after pleading guilty without a plea agreement to a one-count information charging him with possession and intent to distribute 338 grams of a mixture containing cocaine in violation of 21 U.S.C. § 841(a)(1). In a Sentencing Memorandum filed in anticipation of his sentencing, Donatiu seeks a departure from the otherwise applicable sentencing guideline range of between 21 and 27 months. In connection with his request for departure, Donatiu raises several challenges to the constitutionality of the Sentencing Guidelines ("guidelines"). Specifically, Donatiu asks the Court to make the following alternative findings: (1) that § 5K1.1, the policy statement in the guidelines which governs departures for a defendant's "substantial assistance," on its face, violates due process; or (2) that § 5K1.1 violates due process in this case by requiring a government motion before a court may depart; or (3) that § 5K1.1 does not require a government motion before a court may consider a departure under the section. For the reasons discussed below, Donatiu's request for a departure is denied.

 II. FACTS

 There is little dispute among the parties with respect to the facts. Upon arriving from Florida at Midway Airport on May 20, 1988, Donatiu was stopped and questioned by DEA Task Force agents during a routine airport courier stop. Donatiu consented to a search of his carry-on luggage and the agents discovered a package wrapped in Christmas wrapping paper. Donatiu consented to the opening of the package and inside the package the agents discovered a tube stuffed with a plastic bag containing 338 grams of 97% pure cocaine. Once the cocaine was discovered, Donatiu admitted his knowledge of the cocaine and immediately agreed to cooperate with the DEA agents. He told the agents the name of his source, that his instructions were to deliver the package to someone at the Museum of Science and Industry in Chicago, and that he was to be paid $ 2,000 for this delivery. He agreed to cooperate with the government by making a telephone call to his source and completing the delivery as scheduled.

 At the agent's suggestion, Donatiu telephoned his source and attempted to find out who he was supposed to meet and where the meeting was to take place. Through no fault of Donatiu's the government was not able to make the controlled delivery of the cocaine. Before Donatiu could reach his source by phone, the source had already learned that Donatiu had been arrested. When friends of Donatiu's in Chicago had called his girlfriend to tell her of his arrest, the source was at Donatiu's apartment, answered the phone, and learned of Donatiu's arrest.

 III. DISCUSSION

 Donatiu urges the Court to depart from his applicable guidelines sentence based on two factors: (1) his "unparalleled" expression of candor and remorse and acceptance of responsibility; and (2) his efforts to "substantially assist" the government in the investigation and prosecution of others associated with his offense. After a brief discussion of the general role of departures under the guidelines, the Court will address each of Donatiu's arguments in turn.

 A. Departures Generally Under the Guidelines

 The procedure for imposing a sentence under the guidelines is set forth in 18 U.S.C. § 3553. Section 3553(a) provides a laundry list of factors which a court must consider in determining the particular sentence to be imposed. These factors include, among others, the kinds of sentence and the applicable sentencing range established by the Commission as set forth in the guidelines [(a)(4)] as well as "any pertinent policy statement" issued by the Commission [(a)(5)]. Although certain factors in § 3553(a) would seem to grant broad discretionary powers to the sentencing judge, especially (a)(1), the nature and circumstances of the offense and the history and the individual characteristics of the defendant, and (a)(2)(A-D), the need for the sentence imposed to serve the traditional goals of punishment, deterrence, protection of the public and rehabilitation, § 3553(b) circumscribes the sentencing judge's discretion in deviating from the applicable guidelines range. Section 3553(b) explicitly states:

 
The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [the applicable guidelines range] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2).

 Section 3553(b) thus makes clear Congress' intent that departures under the guidelines were intended to be "quite rare," contemplated only in "those situations not addressed by the Commission in its guidelines, policy statements, and official commentary." United States v. Justice, 877 F.2d 664, 1989 U.S. App. LEXIS 8273 (8th Cir. 1989) (LEXIS) (Genfed Library, Courts file). Where the applicable guidelines, specific offense characteristics, and adjustments do address a ground for departure, a departure may be warranted in the atypical situation where a defendant's conduct differs from the norm to an extent or to a degree which could not have been adequately considered by the Commission when formulating the guidelines. See Sentencing Guidelines, ch. 1, Part A, § 4(b) at 1.6. The Commission itself expressed its belief that "despite the court's legal freedom to depart from the guidelines, they will not do so very often." Id. at 1.7. See also United States v. Nuno-Para, 877 F.2d 1409 (9th Cir. 1989) (WESTLAW) (CTA Database); United States v. Uca, 867 F.2d 783, 786 (3d Cir. 1989) ("the Guidelines, commentaries and policy statements clearly indicate that departures should be rare").

 1. Departures for Acceptance of Responsibility and Remorse

 Donatiu urges the Court to depart from the applicable guidelines based on his "unparalleled" acceptance of responsibility and remorse. Donatiu points to the probation officer's comments in his presentence report attesting to his "refreshing" candor and honesty as support for his claim that his acceptance of responsibility is "unique." Moreover, Donatiu asks the Court to consider his profound sense of shame and embarassment over his conduct, exemplified by his inability to bring himself to tell his mother that he carried drugs, in making its decision to depart. Donatiu contends that the two-level reduction for acceptance of responsibility as set forth in § 3E1.1 of the guidelines "does not adequately reward a person who has demonstrated a far greater acceptance of responsibility and remorse than the average offender" and that he is entitled to a downward departure. Sentencing Mem. at 13. The Court does not agree.

 Section 3E1.1 of the guidelines, entitled "Acceptance of Responsibility", clearly addresses Donatiu's situation and rewards him for his prompt, voluntary admission of guilt and his candor in speaking with the authorities. At least three factors mentioned in paragraph (1) of the Application Notes to § 3E1.1 specifically apply to Donatiu:

 
(c) voluntary and truthful admission to authorities of involvement in the offense ...

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