On Appeal from the United States District Court for the District of New Jersey
(District Court No. 94-cr-00406-6)
Before: SLOVITER, Chief Judge, SAROKIN and OAKES *fn*, Circuit Judges
(Opinion Filed June 19, 1996)
Francia Tabares was one of the defendants charged in a three-count Superseding Indictment on August 23, 1994, for their participation in a drug distribution ring. Tabares was charged in Count One with conspiracy to distribute and possession with intent to distribute more than 100 kilograms of cocaine, in violation of 21 U.S.C. Section(s) 841(a)(1) and Section(s) 846, and in Count Two with conspiracy to distribute and possession with intent to distribute marijuana in violation of 21 U.S.C. 841(a)(1) and Section(s) 846. She was not named in Count Three, which charged a conspiracy to import cocaine.
Tabares pleaded guilty to Count One of the Superseding Indictment on March 28, 1995, and thereafter the court dismissed Count Two on motion of the government. In the plea agreement, the government and Tabares stipulated that if Tabares continued to recognize and affirmatively accept personal responsibility for her criminal conduct, she would be entitled to a two-point reduction in the overall offense level, pursuant to U.S.S.G. Section(s) 3E1.1(a); that pursuant to Section(s) 3E1.1(b)(1), she would be entitled to an additional decrease of one level for timely notifying the authorities of her intention to enter a plea of guilty; and that "the applicable guideline range for [her was] 50 to 150 kilograms of cocaine," resulting in an offense level of 36, pursuant to U.S.S.G. Section(s) 2D1.1(c)(5). PSR Para(s) 44.
The Probation Office used Section(s) 2D1.1(c)(2) of the Sentencing Guidelines to calculate Tabares' base offense level at 36, from which she received a three-level downward adjustment for acceptance of responsibility. This yielded a total offense level of 33. Her criminal history category was I; thus, Tabares' guideline range was 135 to 168 months' imprisonment. U.S.S.G. Ch. 5, Pt. A. The district court imposed a sentence of 168 months' imprisonment, to be followed by a term of 5 years of supervised release.
At the sentencing hearing, the district court stated:
Ms. Tabares, I've reviewed your record, and, frankly, it is not a record that one would say confers good standing on someone before this Court.
You know, for someone who allegedly is remorseful and respects the law, you said that the last time. You had an opportunity once before: You were convicted of a drug offense, you were sentenced to prison. You had an opportunity to learn what it means to be ...