(§ 1B1.2(a)). The simple possession guideline (§ 2D2.1) does not utilize the amount of drugs to determine the appropriate offense level. Of course, the amount of drugs may be considered by the court for the purposes of determining the appropriate sentence within the guideline range or for possible departure."
By parity of reasoning, the Government urges it is appropriate to take quantity into account in the § 856 context. The magnitude of 30 kilos is suggested by the submission, which the court accepts for purposes of today's disposition because the record offers no reason to doubt it, that 30 kilos of cocaine has a street value in the range of 10 million dollars. I find persuasive the view that so enormous a quantity may be taken into account as a basis for a very substantial upward departure from the guideline.
It is urged upon me that a comparable ground for departure upward is authorized by § 5K2.9, "Criminal Purpose." "If the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guideline range to reflect the actual seriousness of the defendant's conduct." I have no difficulty with accepting the principle that the Sentencing Commission had in mind in making that policy statement. However, I am not satisfied, for the reasons suggested in my description of the difficulties that the Government might face in making its proof, that the cases before me are ones in which I can comfortably conclude that the offense of conviction was an offense committed "in order to facilitate or conceal the commission of another offense." That this is a plausible view of the facts, I have no doubt. But I do not find the record so strongly supportive of that view as to warrant recognizing it as the basis for upward departure from the guidelines.
I do, however, find that there is further ground for upward revision authorized by § 5K2.14, under the caption "Public Welfare," where the Commission recites, "If national security, public health, or safety was significantly endangered, the court may increase the sentence above the guideline range to reflect the nature and circumstances of the offense." I regard that policy statement as one which is both appropriate and to be very carefully utilized. The terms national security, public health and safety are terms of enormous breadth, and in easy rhetoric vast ranges of antisocial conduct could be brought within each of those terms. Given, however, that we are dealing with principles of criminal law in which precision and the absence of vagueness are to be cultivated, I think we should be at great pains to make sure that so broad a category of potential upward revision of sentences is narrowly tailored to circumstances that indubitably fall within such criteria. It may well be that the Commission contemplated that the words "national security, public health, or safety" were to be read with the adjective "national" attached to all three nouns -- " national security, national public health, or national safety ". Otherwise, there is the danger that such terms as public health and safety might roam very wide beyond the intendment of the Commission, and, indeed, of Congress, whose authority stands behind the Commission.
I am prepared to conclude, taking public health as meaning national public health, and safety as meaning national safety, that activities involving the storage of drugs, which in this event turned out to amount to 30 kilos of cocaine, did indeed carry with them a threat to the public health and safety of the nation. These are vast quantities of terribly dangerous controlled substances. So I conclude that upward departure is warranted under that formulation.
It will be noted that in this particular case there is an overlap between the national public health and national safety concerns and the quantitative concerns that I suggest were not addressed by the Commission; but that might not always be the case. One could, by way of example, suppose other forms of controlled substances of much less malign character, but whose storage is nonetheless unlawful. Thus, the storage of large quantities of marijuana might not be regarded as presenting any threat to the national public health or safety, and might yet be regarded as an aggravating circumstance not taken into consideration by the Commission under the § 856 guidelines, and properly considered by a judge as grounds for upward revision.
The substance of what I have said is that I am prepared to accept the plea agreements, which contemplate for Mr. Restrepo and Mr. Rave agreed sentences of 60 months under the § 856 count, and the dismissal of Counts 1 and 2. In announcing that I approve the agreement entered into by the Government and the defendants, I want to make it clear that I find that the plea agreements are authorized by the guidelines and their attendant commentary, to the extent that those guidelines give us guidance on (1) an agreed plea which contemplates the dismissal of certain counts, and (2) upward revision beyond the guidelines of the sentence to be imposed on the remaining count.
If I entertained significant doubts, which I do not, that I have the authority, and indeed that it is an appropriate exercise of discretion, to approve these plea agreements, I would then entertain concerns with respect to whether the guidelines and their attendant structure so narrowed the authority and attendant discretion of a sentencing judge as to raise issues of constitutionality. Under the circumstances before me, in which I find the plea agreement an appropriate one for me to approve, I am satisfied that no such issues are presented.
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