Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 95 CR 600-2 -- Ruben Castillo, Judge.
Before BAUER, RIPPLE, and EVANS, Circuit Judges.
ARGUED SEPTEMBER 19, 1997
Christopher Kator, who pled guilty to an indictment charging that he conspired to import heroin into the United States, says his sentence is too long. He can prevail on his claim, however, only if he can convince us that his plea agreement with the government isn't worth the paper it's written on. We think it is, so we reject his appeal and affirm the sentence he received last January in the district court.
Kator, Corinne Manns, Tony Sobowale, and Jumoke Dada were indicted as coconspirators for agreeing to import a little over 2 kilograms of heroin into the United States from the Czech Republic. Pursuant to a written plea agreement, Kator pled guilty to the charge. The sentencing judge, Ruben Castillo, determined that Kator's adjusted offense level was 31 [he distributed 2 kilos of heroin (); was a manager (); and he accepted responsibility (minus 3) -- to arrive at 31] which put his sentencing range at 108 to 135 months. The charge to which he pled guilty, however, carried a statutory minimum sentence of 10 years, and that term, of course, trumps the guidelines if they are lower.
Under the plea agreement, the government agreed to file a sec.5K1.1 motion for a downward departure. The departure would be such that the ultimate sentence would equal "one-half of the low-end of the applicable sentencing guidelines range or one-half of the statutory minimum sentence provided for under 21 U.S.C. sec.960(b)(1)(A), whichever is higher."
The statutory minimum being higher, the government moved for a downward departure to 5 years, and that was the sentence Judge Castillo imposed. Nevertheless, Kator now argues that the guidelines were inappropriately calculated. When this issue was argued in the district court Judge Castillo was incredulous. At one point he said: "Okay, so what is it that really is at issue here, given the plea agreement? Or are you saying that you want to specifically attack the government's 5K1.1 motion . . . ." The answer was no. On top of that, Kator has never asked to withdraw his guilty plea.
The facts to which Kator pled guilty are, in summary, as follows. In September 1995 Jumoke Dada approached Kator about importing heroin. She agreed to pay Kator and Sobowale $20,000 to secure a courier to transport the dope. They in turn recruited Corinne Manns to travel to Prague, Czech Republic, to pick up a package and bring it back. For this trick, she was to be paid $7,000 plus expenses. Kator arranged for Manns' round trip air fare to Prague and gave her $800 cash for spending money, along with a phone number to reach him while she was overseas. Though it is not noted in the plea agreement, he apparently also helped her obtain her passport. Kator drove her to Chicago's O'Hare field for the trip on September 28, 1995.
On October 1 Kator contacted Manns in Prague to say that the heroin would not be delivered as planned and that she would have to remain there for an extra day. Kator then received cash from Dada, which he sent via Western Union to Manns.
On October 4 a woman approached Manns in Prague to say that she had a package for her, but that she wanted $3,500 before she would hand it over. Manns notified the conspirators in the Windy City and Dada went about straightening things out. The next day, the woman knocked on the door of Manns' hotel room and gave her a bag with 2.061 kilograms of heroin hidden in a secret compartment.
Upon learning of the delivery, Kator arranged for Manns' flight home to Chicago, via London and St. Louis. However, mechanical problems forced a landing in Boston, where her bag tested positive for heroin and she was set upon by the police.
Manns quickly agreed to cooperate with the authorities. She was accompanied by undercover agents when she arrived in Chicago. Kator went to O'Hare to see Manns arrive and conduct general surveillance. He saw Manns deplane, made eye contact with her, but did not speak to her. She left the airport in a taxi, accompanied by the agents. The drug dealers' plan was for Sobowale to meet Manns at the Bismark ...