                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-8-2003

USA v. Budde
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2943




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Recommended Citation
"USA v. Budde" (2003). 2003 Decisions. Paper 216.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/216


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                                                                   NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      No. 02-2943


                            UNITED STATES OF AMERICA

                                            v.

                                   MICHAEL BUDDE,
                                                       Appellant
                                     ____________

               APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEW JERSEY
                             (D.C. Crim No. 02-cr-00027 )
                   District Judge: Honorable Katharine S. Hayden
                                    ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   October 3, 2003
                 Before: RENDELL, WEIS and GARTH, Circuit Judges.
                               (Filed: October 8, 2003)
                                    ____________

                                        OPINION


WEIS, Circuit Judge.

             Defendant pleaded guilty to importing more than three kilograms of a drug

commonly called “ecstasy” in violation of 21 U.S.C. §§ 952(a), 960(b)(3), and 18 U.S.C. §

2. He was sentenced to 57 months incarceration, at the bottom of the applicable Guideline

range of 57-71 months.

                                            1
              A co-defendant, Thomas Winkelmann, also received a sentence of 57

months. A third defendant, Brigitte Fassler-Perez, was sentenced to time served, a much

shorter period than those imposed on the other defendants.

              In calculating the range under the Sentencing Guidelines, the District Court

credited defendant with a two-level downward adjustment for a minor role. Defendant

contends that because he was merely a courier and had little else to do with the smuggling,

he should have been allowed an additional two-point reduction because he was only a

minimal participant. If that adjustment had been made, the defendant’s sentencing range

would have been reduced to 46-57 months.

              The District Court rejected the defendant’s argument, pointing out that

although as a courier he was a minor actor in the conspiracy, his role was not minimal. The

Court also recognized the disparity between the defendant’s sentence and that given to

Fassler-Perez, but pointed out that the difference was the result of the motion for

downward departure made by the United States Attorney’s Office. The district judge

acknowledged that the sentence was a harsh one that troubled her, but that she was required

to follow the Guidelines.

               Our role is also limited by those same Guidelines, and we can do nothing

here in this case other than affirm the sentence imposed by the district judge. See United



States v. Castano-Vasquez, 266 F.3d 228, 231 (3d Cir. 2001); United States v. Hunte, 196

F.3d 687, 691, 694 (7th Cir. 1999).

                                              2
Accordingly, the judgment of the District Court will be affirmed.




                               3
______________________________

TO THE CLERK:

          Please file the foregoing Opinion.



                                      /s/ Joseph F. Weis, Jr.
                                      United States Circuit Judge




                                         4
                                            October 7, 2003


TO:           Marcia Waldron, Clerk
              United States Court of Appeals

FROM:         Judge Weis

RE:           USA v. Michael Budde, No. 02-2943


Dear Ms. Waldron:

              Please file the enclosed Not Precedential Opinion, together with the
Judgment in the above case. The signed originals are being mailed to you this date. Thank
you.

                                            Sincerely,



                                            Joseph F. Weis, Jr.
                                            United States Circuit Judge



cc:           Judge Rendell (letter only)
              Judge Garth (letter only)
              Pacracts




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