                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-21-1999

USA v. Warren
Precedential or Non-Precedential:

Docket 98-6488




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Filed July 21, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-6488

UNITED STATES OF AMERICA

v.

JOSEPH B. WARREN,
       Appellant

Appeal from the United States District Court
for the District of New Jersey
(Criminal No. 98-cr-00416)
District Judge: Honorable Alfred J. Lechner, Jr.

Argued May 19, 1999

Before: BECKER, Chief Judge, RENDELL, and ROSENN
Circuit Judges,

(Filed July 21, 1999)

       John H. Yauch, Esq. (ARGUED)
       Assistant Federal Public Defender
       Office of the Federal Public Defender
       972 Broad Street
       Newark, NJ 07102
        Attorney for Appellant

       Shawna H. Yen, Esq. (ARGUED)
       George S. Leone, Esq.
       Assistant United States Attorneys
       970 Broad Street
       Newark, NJ 07102-2515
        Attorneys for Appellee
OPINION OF THE COURT

RENDELL, Circuit Judge.

In this sentencing appeal, we are presented with the
dilemma of sentencing a courier who brought a large
quantity of drugs into the country but who, from the very
inception of the transaction, was cooperating with the
authorities, to whom he revealed his plans. The District
Court rejected Warren's plea for special probation and,
instead, departed upward to the maximum statutory
penalty. Warren challenges the adequacy of notice of the
District Court's upward departure and the sufficiency of the
evidence supporting the grounds given for the upward
departure, as well as the imposition of restrictions on his
travel outside of the United States as a special condition of
probation.1 We will reverse and remand for resentencing.

I.

Factual Background

Prior to his involvement in this matter, Joseph B. Warren
had been regularly employed with real estate, investment,
and computer and internet companies, primarily in Israel,
since his graduation from Cornell University in 1992. On
June 30, 1998, Warren telephoned the Drug Enforcement
Administration ("DEA") in Belgium, identifying himself as
"Jack." Warren stated that he was in Israel, and that he
had been propositioned by a drug trafficker, known only as
"Sammy," to act as a courier to transport ecstasy, an illegal
"designer drug," from Belgium to New York City and/or
cocaine from Panama to Europe. Warren claimed he had
never been involved in this type of activity before but
"became interested" after he was offered $15,000 for the
_________________________________________________________________

1. Warren has raised two issues in a pro se submission: 1) he should be
allowed to withdraw his plea; 2) his conduct is not a violation of
criminal
law. We have examined these arguments and determined that they are
without merit.

                               2
task. In the course of his initial conversations with the
DEA, he expressed his desire to cooperate with law
enforcement officials, and a special agent informed him that
no plan could be devised until Warren was able to provide
additional names or until details were confirmed. Warren
said he would call again once he had more information.

On July 8, 1998, Warren arrived in Belgium and called
the special agent, and the two men met. Warren reported to
the DEA agent in the course of their meeting that he
needed the money he was to receive as a drug courier
"because he was several hundred thousand dollars in debt
as the result of bank frauds and dealings with Israelis
involved in vehicle thefts." Presentence Report ("PSR") P 9.
Warren also reported that a flight reservation had been
made for him on July 9, 1998. He had been told that the
suitcase he was meant to deliver would be brought to his
hotel in Brussels on the morning of July 9, 1998.

After debriefing Warren, the DEA agent called a federal
customs agent in the United States to arrange for a
controlled delivery. Customs agreed to assist, provided
Warren was to arrive in Newark on July 13, and not July
9. Warren declined to follow this course of action, believing
that it placed him in danger. The special agent then advised
Warren to walk away from the situation, warning that a
"lookout" would be placed on him at United States airports,
and he would be stopped and searched if he tried to enter
the United States. Warren stated that he would not
continue his interactions with the drug traffickers and
would return to the United States or Israel. On July 9,
1998, Warren arrived in Newark International Airport and
approached immigration officials. He stated that he had
drugs in his possession, and customs inspectors found a
large quantity of pills in his luggage. The drugs were seized,
and a lab report indicated that Warren turned over
21,269.2 tablets of ecstasy. Warren was arrested and
charged with importation of a controlled substance, but he
later pled guilty to simple possession of a controlled
substance.2
_________________________________________________________________

2. The rationale for prosecuting a courier who cooperates with the
authorities from the outset escapes us, but it is not for the federal
courts
to second-guess the U.S. Attorney's Office on its prosecutorial decisions.
See Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375,
380-83 (2d Cir. 1973).

                               3
The PSR noted that where the base offense level under
2D2.1 applies, a potential ground for an upward departure
may exist under Application Note 1, on the basis that the
drugs were not intended for use by that defendant. The PSR
also noted that the large amount of drugs Warren had
carried placed his case outside of the "heartland" of the
Guidelines, and that in such a case, an upward departure
would be appropriate pursuant to section 5K2.0. Warren
objected to the PSR in a written submission, but he did not
object or argue that objection in the course of the
sentencing hearing itself.

The PSR paints a picture of Warren as an intelligent
young man, the product of a supportive environment with
strong family and religious ties, who had not previously had
any dealings with the criminal justice system. While
regretting his conduct and accepting responsibility, Warren
nonetheless indicated to the probation officer that he had
not considered the possibility of spending any time in jail
since he was "not a criminal" and was trying to help the
police. At sentencing, Warren's attorney asked for special
probation on the grounds that Warren had no prior
criminal record, had the potential for a "bright future," had
accepted responsibility for his actions, and had already
spent two months in jail during the pendency of the case.
The District Court viewed the situation differently, and
departed upward, sentencing Warren to the statutory
maximum punishment of 5 years probation. The District
Court's stated basis for its ruling was twofold:first, that the
drugs were not for personal consumption, and second, that
Warren had a history of criminal conduct. The crucial
portion of the sentencing transcript reads as follows:

       Despite warnings to you, clear, unequivocal warnings,
       you chose to board a plane to this country and carry
       6,239 grams of Ecstasy with you, an extraordinary
       amount of drugs. Clearly not for personal
       consumption. As I've said, a one year term of probation
       and expungement of your record is insufficient given
       the circumstances of this case; the warnings that were
       given to you, the entire volitional conduct. The unusual
       circumstances were taken into consideration by the
       Government when affording you this plea. Again,

                               4
       although I recognize I have the right to do this, I reject
       it, utterly reject it.

       I'm going to place you on probation, but I'm going to do
       so pursuant to an upward departure that these drugs
       were not for personal consumption, and I make that
       finding in light of the amount, extraordinary amount of
       drugs you carried into this country. The fact that as
       you candidly indicate in the presentence report,
       paragraph nine . . . you needed money because you
       were several hundred thousand dollars in debt as a
       result of bank frauds and dealings with Israel, also
       involved in vehicle thefts. You have a history of
       criminal conduct by your own admission. You need
       supervision. Pursuant to the Sentencing Reform Act of
       1984, and Section 5K2.0, it is my judgment that you
       are placed on probation for a period of five years. . . .
       You are to refrain from applying for a passport and
       restrict your travel to the United States. A. at 76-77.

Warren had a criminal history category of I, so the
District Court's decision to depart upward added four
offense levels to Warren's offense calculation, taking it from
two to six, to impose the five years of probation. See
S 5B1.2(a)(1). The government argues that the District
Court was justified in its upward departure under section
2D2.1 based on the defendant's intent not to consume the
drugs personally. Warren argues that the District Court
improperly departed upward based on section 2D2.1, but
also based upon uncharged criminal conduct. We conclude
that both grounds were relied upon by the District Court in
its departure decision.

We have jurisdiction pursuant to 28 U.S.C. S 1291 and
18 U.S.C. S 3742. A District Court's decision to depart
under the Sentencing Guidelines is reviewed for abuse of
discretion, and deferential review is accorded to the extent
of the departure. See United States v. Baird, 109 F.3d 856,
862, 871 (3d Cir. 1997). If no objection was made, review
is for plain error. See United States v. Paslay, 971 F.2d 667,
674 n.13 (11th Cir. 1992). The imposition of a special
condition of probation or supervised release is reviewed for
an abuse of discretion, but absent an objection, review is
for plain error. See United States v. Crandon, 173 F.3d 122,

                               5
127 (3d Cir. 1999), petition for cert. filed , (U.S. June 19,
1999) (No. 98-9838); United States v. Fabiano , 169 F.3d
1299, 1307 (10th Cir. 1999), petition for cert.filed, (U.S.
June 3, 1999) (No. 98-9770); United States v. Voda, 994
F.2d 149, 153 (5th Cir. 1993).

II. Discussion

A. Upward Departure

Warren challenges the upward departure on a variety of
grounds. First, he claims that the District Court did not
articulate reasons for its departure. We disagree. The
District Court did articulate reasons for its upward
departure. He also contends that the evidence before the
District Court did not provide a sufficient basis for either
ground of the upward departure. As we discuss more fully
below, we agree with Warren's contentions. He also argues
that he did not have adequate notice of the grounds for the
upward departure. We do not need to reach this argument,
given our agreement with his view that the upward
departure itself was not supported by the record.

1. Upward Departure Based on Quantity of Drugs under
       Section 2D2.1 or Section 5K2.0

In departing upward, the District Court relied in part
upon Application Note 1 to Section 2D2.1, which states:

       The typical case addressed by this guideline involves
       possession of a controlled substance for the
       defendant's own consumption. Where the
       circumstances establish intended consumption by a
       person other than the defendant, an upward departure
       may be warranted.

Therefore, a court may consider an upward departure if
a defendant is charged with possession of a controlled
substance and the "circumstances establish intended
consumption by a person other than the defendant." In
other words, the departure would be appropriate if it is
shown, or can be inferred, that the defendant intends to do
something more than merely possess the drugs. Warren

                               6
argues that he was only trying to help the police and did
not intend that the drugs would be distributed on the
street. Therefore, he contends, Application Note 1 to Section
2D2.1 does not apply to him, because that Guideline
provision is meant to apply to persons who intend to
distribute or share the drugs they bring into the country.
Although Warren did not object to the imposition of the
upward departure at the sentencing hearing, we find that
he adequately preserved his objections to the upward
departure under section 2D2.1 via his response to the PSR.
See United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir.
1994). As a result, we will review this departure
determination for abuse of discretion. See Baird , 109 F.3d
at 862, 871.

The government argues that: 1) the Application Note to
Section 2D2.1 is an encouraged factor under the
Guidelines, and hence serves an acceptable basis for
departure under a reading of the circumstances of the case;
or 2) that the sheer quantity of drugs alone is a sufficient
ground for an upward departure under Koon, as the
quantity of drugs possessed takes Warren's case outside of
the "heartland" of drug possession cases. 3 In so arguing,
the government relies on prior statements by this court
indicating that quantity alone can serve as an appropriate
ground for an upward departure when a defendant has
been charged with possession of a controlled substance.
See United States v. Collado, 975 F.2d 985, 990 n.4* (3d
Cir. 1992); United States v. Ryan, 866 F.2d 604, 608-10 (3d
Cir. 1989). Other courts have also indicated that an upward
departure based upon drug quantity alone is appropriate in
drug possession cases. See United States v. Vasquez, 909
_________________________________________________________________

3. If a particular factor is not mentioned in the guidelines, that does
not
mean that departure on the basis of that factor is precluded. Rather,
Koon "authorizes district courts to depart in cases that feature
aggravating or mitigating circumstances of a kind or degree not
adequately taken into consideration by the commission" in formulating
guidelines to apply to a "heartland" of cases. Koon v. United States, 518
U.S. 81, 94 (1996). A sentencing court is free to consider, in an unusual
case, whether or not the factors that make it unusual are present in
sufficient kind or degree to warrant a departure. See, e.g., United States
v. Nolan-Cooper, 155 F.3d 221, 224 (3d Cir. 1998).

                               7
F.2d 235, 242 (7th Cir. 1990) ("an upward departure from
the guideline for simple possession of narcotics, which does
not refer to drug quantity, may be based on drug quantity
where the amount possessed is atypical"); United States v.
Crawford, 883 F.2d 963, 964 (11th Cir. 1989); cf. United
States v. Correa-Vargas, 860 F.2d 35, 38 (2d Cir. 1988). As
such, the government argues that Warren's ultimate
intention to turn the drugs over to law enforcement does
not matter, for he also intended to do so on his own terms.

Although the above cases reflect several courts'
willingness to look to the quantity of drugs involved when
departing upward in drug possession cases, these cases
have neither relied on nor interpreted Application Note 1 of
Section 2D2.1. In turning to the case at hand, wefirst
observe the notable absence of case law interpreting
Application Note 1 of section 2D2.1 since the guidelines
were amended to include it in 1997. We surmise that this
lack of discussion is because the language and import of
this particular note are clear, dictating that in the case of
a simple possession offense, a district court should also
look to the circumstances presented by the record before it
to determine whether an upward departure is warranted.
This record contains no evidence of "circumstances" that
establish intended consumption by another within the
meaning of Application Note 1. Rather, the record evidence
of intent consists of proof that Warren had no intent to do
anything with the drugs other than turn them over to law
enforcement authorities. That he was not compliant with
the government's preferred modus operandi in terms of
when and where he was to turn the drugs over does not
alter the fact that the record is devoid of any evidence that
would be probative of intent by Warren to distribute or
share the ecstasy carried in the suitcase. In the face of this
lack of evidence, and in the face of actual proof of intent to
turn in the drugs to the government, the quantity of drugs
lacks significance for purposes of sentencing.

In so stating, we are not contravening the statements we
have made in Collado and Ryan regarding drug quantity
and the propriety of upward departures based on quantity
of drugs under section 5K2.0. Large quantities of drugs can
clearly take a routine possession case out of the heartland,

                               8
and thereby justify a departure under section 5K2.0.
However, the rationale for distinguishing such an offense
from the "heartland" of possession cases is not dependent
on quantity per se, but, rather, on what quantity connotes.
See Ryan, 866 F.2d at 605 (departure based upon quantity,
packaging, and purity of drugs). Large quantities of drugs
are relevant to sentencing determinations in possession
cases only to the extent that they indicate the high
probability that the drugs were intended not for mere
possession, but for distribution to others. However, where
the sole evidence of intent negates the normal inferences to
be drawn from the sheer quantity of drugs possessed, the
inferences that may normally be permissibly drawn from
quantity are improper. In this case, the record evidence is
unequivocal that not only did Warren not intend that
anyone consume the drugs he carried, but also that he
intended to turn those drugs over to government agents
and did so. In such a situation, we conclude that the
District Court abused its discretion in utilizing Application
Note 1 of Section 2D2.1 or 5K2.0 as a basis for an upward
departure based on quantity of drugs.

2. Evidentiary Basis of Criminal Conduct as a Basis for
       the Upward Departure

Warren also attacks the District Court's reliance on a
paragraph in the PSR as the evidentiary basis for the other
ground for upward departure, namely uncharged criminal
conduct. As he did not object to the upward departure
based on uncharged criminal conduct, he must
demonstrate plain error. See United States v. Dozier, 119
F.3d 239, 244 (3d Cir. 1997). The government argues that
a court may consider any information concerning the
background, character, and conduct of the defendant in
sentencing a defendant, and that the information regarding
his other criminal activity was properly considered by the
District Court. U.S.S.G. S 1B1.4; U.S.S.G. Ch. 1, Pt. A, 4(b).
While we do permit reference to such information in
sentencing a defendant, a district court should consider
only reliable information about the defendant and his
background and character. Although the Federal Rules of
Evidence do not apply in sentencing proceedings,

                               9
information "used as a basis for sentencing under the
Guidelines must have `sufficient indicia of reliability to
support its probable accuracy.' " United States v. Miele, 989
F.2d 659, 664 (3d Cir. 1993). We have stated that this
standard should be applied rigorously. See United States v.
Brothers, 75 F.3d 845, 848 (3d Cir. 1996). In analyzing an
upward departure, we must therefore assure ourselves that
such a departure rests on a reliable evidentiary basis. See
Gambino v. Morris, 134 F.3d 156, 162 (3d Cir. 1998), citing
United States v. Cammisano, 917 F.2d 1057, 1061 (8th Cir.
1990); United States v. Cantu-Dominguez, 898 F.2d 968,
970-71 (5th Cir. 1990).

In sentencing Warren on the basis of uncharged criminal
conduct, the District Court appears to have relied entirely
on paragraph nine of the PSR, which stated: "During the
meeting [with a DEA agent] Warren claimed he was to
receive $15,000 for acting as a drug courier, and that he
needed the money because he was several hundred
thousand dollars in debt as the result of bank frauds and
dealings with Israelis involved in vehicle thefts." By its own
terms, the statement is equivocal; it is unclear therefrom
whether Warren was the perpetrator or the victim of the
frauds recited. The statement is not attributed or sworn
and appears to be second-hand hearsay. A district court
"can give a high level of credence to hearsay statements"
and can even credit hearsay over sworn testimony
"especially where there is other evidence to corroborate the
inconsistent hearsay statement." See Brothers , 75 F.3d at
848. This statement, however, whatever its import, is too
ambiguous and attenuated a basis for this particular
ground for an upward departure. Neither this statement,
nor the purported conduct, was the subject of any
discussion or argument at the sentencing hearing itself; it
was not detailed or corroborated in any manner. Further,
the PSR paragraph does not contain sufficient detail or
other indicia of reliability that would provide an adequate
basis for the District Court to rely upon it in departing
upward. This is not to say that a district court can never
rely on facts set forth in a PSR as the basis for an upward
departure, but a district court cannot, as here, merely
extrapolate from such ambiguous statements contained in
a paragraph in the PSR, without more, as a basis for an

                               10
upward departure. There should be some offer of proof or
evidence to accompany that statement before it may form
the basis for an upward departure.

Because the bases for the upward departure did not have
sufficient evidentiary support, we will vacate the District
Court's order and remand for resentencing. In so doing, we
note another aspect of this case that is apparent from the
District Court's sentencing colloquy and from the tenor of
the government's argument on appeal. Both cast the
defendant in a negative light, and unusually so,
presumably based on his conduct or attitude in this case.
While we do not condone Warren's actions, we do not view
them as implicating his credibility in a way that would
undermine the record regarding his intent. The District
Court did not voice any criticism directed at his veracity,
but attacked instead his decision to act on his own,
contrary to the government's wishes. While Warren's
position -- that he did not want to walk away from the drug
dealers, or change his travel date for fear of his own safety
-- seems plausible, perhaps Warren was playing fast and
loose with the government, and we do not preclude the
District Court from permitting further development of the
record in its discretion, should the argument or questions
on remand dictate. See United States v. Dickler , 64 F.3d
818, 831-32 (3d Cir. 1995); see also United States v.
Walker, 149 F.3d 238, 243 (3d Cir. 1998).

B. Travel Restriction as a Special Condition of Probation

Warren also challenges the District Court's imposition of
a bar to his travel outside of the United States as a special
condition of his term of his probation. A court may impose
a special condition of probation to the extent that any such
condition is reasonably related to factors set forth in
Section 3553(a)(1) and (2),4 and to the extent that such
_________________________________________________________________

4. Section 3553(a)(1): the nature and circumstances of the offense, and
the history and characteristics of the defendant;

Section 3553(a)(2): the need for the sentence imposed (A) to reflect the
seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; B) to afford adequate deterrence to
criminal conduct; C) to protect the public from further crimes of the
defendant; and D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the
most effective manner.

                               11
conditions involve only such deprivations of liberty and
property as are reasonably necessary to fulfill the purposes
of probation. 18 U.S.C. S 3563(b). Standard conditions of
probation include restrictions on a defendant's right to
travel. See 18 U.S.C. S 3563(b)(13) & (14) (limiting where a
defendant may reside, and requiring a defendant to remain
within the jurisdiction of the court unless granted
permission to leave by the court or a probation officer).
Courts have also allowed for particularized travel
restrictions as special conditions of probation. See, e.g.,
United States v. Friedberg, 78 F.3d 94, 97 (2d Cir. 1996);
United States v. Pugliese, 960 F.2d 913, 915-16 (10th Cir.
1992). In determining what constitutes a sufficient record
to uphold a probation condition, courts have looked to
whether a court has made any explicit factual findings, or
to whether the record before the court suggests reasons for
the restriction that would serve the aims of probation. See
United States v. Porotsky, 105 F.3d 69, 71-72 (2d Cir.
1997); Friedberg, 78 F.3d at 96-97; Voda , 994 F.2d at 153.5

As noted above, the courts of appeals have consistently
required district courts to set forth factual findings to
justify special probation conditions. In Friedberg, a case
decided under the Federal Probation Act, the defendant Igor
Porotsky, a Russian emigre, pled guilty to conspiracy and
attempted tax evasion from a gasoline bootlegging scheme.
The defendant had been granted permission to travel to
Russia prior to his guilty plea, but his requests to travel to
Russia during the term of his probation had been denied
without explanation by the district court. See id. at 95-96.
The district court then denied a travel request on the basis
that the defendant posed an enhanced risk of flight. See id.
at 96. On appeal, the court found that the district court
had not considered whether the denial of the travel request
_________________________________________________________________

5. Warren argues in passing that he did not receive adequate notice of
the probation condition. Courts have been reluctant to include
conditions of supervised release or probation within the disclosure
requirements of Burns, apart from requiring notice in instances of
community notification provisions for sex offenders, and we do not see
a reason to extend the rationale of Burns to cover travel restrictions.
See,
e.g., United States v. Coenen, 135 F.3d 938, 940-45 (5th Cir. 1998);
United States v. Mills, 959 F.2d 516, 518-19 (5th Cir. 1992).

                               12
served the aims of probation, and remanded with
instructions to make appropriate factual findings as to
whether the denial of the travel request served those aims.
See id. at 96-97; see also Porotsky, 105 F.3d at 72 (finding
that mere recitation of twin aims of probation by the
district court was not a sufficient finding for denial of a
travel request, and remanding with directions for the
district court to grant the request). Compare United States
v. Beech-Nut Nutrition Corp., 925 F.2d 604, 607-08 (2d Cir.
1991) (denying defendant permission to travel to Europe to
pursue job opportunities appropriately satisfied objectives
of probation).

At the very least, the record below must contain evidence
that would support the imposition of a special condition of
probation, even if the district court fails to set forth its
findings and justifications. In Voda, the defendant had been
charged with one count of negligent discharge of a pollutant
and he challenged the court's condition that he not possess
a firearm during his probation term. The district court had
given no reason on the record for imposing the condition,
nor was there any reason suggested by the PSR or apparent
in the record before the court. See 994 F.2d at 153. The
court noted that although prohibition of firearm possession
was a permissible discretionary condition of probation, this
case did not present circumstances that would support the
imposition of such a prohibition. See id. The court found
that because the defendant was charged with a nonviolent
offense, and the PSR did not indicate that he had violent or
dangerous tendencies, or any past history of aggressive
behavior, a firearm prohibition was not required to meet the
purposes of probation. See id. at 153-54.

These cases indicate that in order to impose a special
condition of probation, a district court should engage in an
inquiry which results in findings on the record to justify
that condition, and to indicate how that condition meets
the statutory purposes of probation. We will affirm only if
the district court has made such findings, or we can
determine from the record a sufficient evidentiary basis for
the special probation condition. In imposing the special
condition of probation in this case, the District Court did
not make findings in support of the travel restriction, nor

                               13
did it indicate how the restriction fit within the statutory
aims of probation. Further, we cannot, on the record before
us, ascertain any viable basis for the travel restriction in
the record before the District Court in order for us to
proceed to determine, on our own, whether the restriction
satisfies the aims of probation. Even if we were to assume
that the probation condition stemmed from Warren's
alleged prior criminal conduct in Israel, we have found a
mere reference to this supposed conduct to be an
insufficient and unreliable basis on which to rest an
upward departure. The travel restriction in this case suffers
from a similar insufficiency, as it springs from reasons that
are not supported in the record below.

While we share the District Court's impression that it
would probably be in Warren's best interest that he not
revisit his old "stomping grounds" in Israel, where his
troubles began, in view of the inadequacy of the record, we
cannot let the travel restriction stand. Should the District
Court decide on resentencing that the travel restriction is
appropriate to meet the aims of probation, it should set
forth findings that support that conclusion.

For the foregoing reasons, we will vacate the sentence
and remand for proceedings consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               14
