III. IMPOSITION OF THE SENTENCES
Having been presented with all of the information reviewed above, the court was left to consider the sentences to be imposed on each defendant. At the time the court began these considerations, Gerry Eaton had been sentenced to a period of incarceration of 87 months. The government was barred from taking any further action against Gerry Eaton due to agreements into which he had entered in each phase of his cooperation. Although his perjury at Christopher Peterson's trial and his own sentencing hearing had breached his initial plea agreement, a subsequent agreement barred prosecution for the offense based on his continued cooperation. The government's constraint with respect to Gerry Eaton's sentence therefore also constrained the court.
As a result of Gerry Eaton's sentence, this case became different from the usual criminal case. The leader and organizer of the various conspiracies was sentenced to a term of imprisonment of 87 months, a sentence which could not be changed to impose a longer term of incarceration. It would be unjust to impose longer sentences on lesser players in the affair. The court therefore found itself in a position of considering the relative culpability and cooperation of each defendant, with Gerry Eaton's sentence as a starting point, and sentenced accordingly. In essence, when the government made its motions for downward departures for each defendant, in addition to the extent of the individual defendant's assistance, the amount of the departure depended on what that defendant had done compared to Gerry Eaton and any other defendant previously sentenced.
In considering the manner in which this procedure affected the sentences imposed, it is necessary to begin with Gerry Eaton himself. As noted, Gerry Eaton was the leader and organizer of the conspiracy for which Christopher Peterson was convicted and sentenced. Gerry Eaton's base offense level, then, should have been 38 under the Sentencing Guidelines in effect in 1993, based on the 40,000 plants and processed marijuana. See Pre-Sentence Report for Christopher Peterson at 5-6 P 15. There would be a 4-point upward adjustment for Gerry Eaton's role as leader and organizer. Id. at 6 P 17. Unlike Christopher Peterson, id. at 6 P 19, Gerry Eaton would also get two added points for obstruction of justice. United States Sentencing Guidelines (hereafter cited as U.S.S.G.) § 3C1.1. Gerry Eaton's evasion from custody, obstruction of the investigation, perjury and subornation of perjury would negate any downward adjustment for acceptance of responsibility. U.S.S.G. § 3E1.1 and Application Note 1(a), (d). Gerry Eaton therefore should have had a Total Offense Level under the Guidelines of 44 (reduced to 43 as the maximum possible Total Offense Level under the Guidelines, U.S.S.G. Ch. 5, Pt. A, Application Note 2), and should have been subject to life imprisonment regardless of his Criminal History Category. U.S.S.G. Ch. 5, Pt. A (Sentencing Table). Because of the plea agreements, however, Gerry Eaton avoided a life sentence and will serve a maximum sentence of only 87 months (or 7 1/4 years).
Under the Sentencing Guidelines as amended in 1995, based on the 40,000 plants and processed marijuana, Gerry Eaton's Base Offense Level would be reduced from 38 to 34. U.S.S.G. § 2D1.1(c)(3). Again, there would be a 4-level upward adjustment for his role as a leader and organizer, U.S.S.G. § 3B1.1(a), and a 2-level upward adjustment for obstruction of justice. U.S.S.G. § 3C1.1. No downward adjustment for acceptance of responsibility would be appropriate. U.S.S.G. § 3E1.1 and Application Note 1(a), (d). With a Total Offense Level of 40 and a Criminal History Category of I, Pre-Sentence Report for Gerry Eaton at 5 P 24, the sentencing range for the offense (calculated on the violation of 21 U.S.C. § 841(b)(1)(vii)) would be 292-365 months, or between 24 years, 4 months and 30 years, 5 months. Using the minimum of the range, and prior to any motion by the government for a downward departure, Gerry Eaton has saved himself 205 months (or 17 years, 1 month) of incarceration.
It is clear from the foregoing, then, that Gerry Eaton was able to manipulate events to his advantage, and succeeded in largely avoiding the punishment that was due. The government was prevented from remedying the injustice once it discovered Gerry Eaton's true role because it had entered into the second plea agreement with Gerry Eaton under which it could not prosecute him based on information gathered in his further cooperation (more accurately termed his initial cooperation, since the earlier cooperation was anything but that). Thus, his clear breach of the earlier plea agreement could not be used as the basis for bringing additional charges. Without additional charges, of course, the court could not impose any further period of incarceration on Gerry Eaton, and the sentence could not be changed as appropriate.
The first and most important circumstance facing the court, then, at the time of sentencing, was that the primary player had received far less than his due. We therefore looked at each defendant's role in the offenses and the level of cooperation each provided, and compared that person to Gerry Eaton.
As an example, David Cavallaro was a major player in the conspiracy to distribute narcotics and the conspiracy against Christopher Peterson, but did not play a role in trying to help Gerry Eaton avoid a proper sentence. In fact, he testified at Gerry Eaton's sentencing hearing against Eaton. Cavallaro was sentenced to 63 months of incarceration, which was less than Eaton but more than those with lesser roles in the marijuana distribution and/or obstruction of justice schemes.
In an order dated November 30, 1995, we outlined the issues before the court for purposes of the hearings on the motions to modify the sentences of the defendants named in the caption. We repeat part of that discussion to set forth the context of the exercise of our discretion.
IV. DISCRETION OF THE COURT
The parties all agree as to the controlling statutory and Guidelines provisions. Most importantly, 18 U.S.C. § 3582(c)(2) provides the court with discretion to modify a term of imprisonment previously imposed based on a sentencing range that has subsequently been lowered by the Sentencing Commission. In exercising this discretion, a reduction must be consistent with applicable policy statements issued by the Commission, and the court must consider the factors set forth in 18 U.S.C. § 3553(a).
It appears, then, that consideration of the instant motions involves a two-step process: (1) determining whether modification of sentence is appropriate upon consideration of the factors set forth in § 3553(a); and (2) if so, to what term of incarceration should the sentences be modified. The factors set forth in § 3553(a) are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;