The opinion of the court was delivered by: Muir, District Judge
On February 8, 2007, an Indictment consisting of five counts was returned charging Christopher Ross, an inmate at the Allenwood Federal Correctional Complex, White Deer, Pennsylvania, with causing interstate travel in aid of racketeering (Heroin Distribution) in violation of 18 U.S.C. § 1952(a)(3) (Count 1), providing a prohibited object to an inmate in violation of 18 U.S.C. § 1791(a)(1) (Count 2), using a telephone to facilitate drug distribution in violation of 21 U.S.C. § 843(b) (Count 3), distribution of a controlled substance resulting in death in violation of 21 U.S.C. § 841(a)(1)(Count 4) and conspiracy to introduce contraband into the prison in violation of 18 U.S.C. § 371 (Count 5). The case involves the introduction of heroin into the prison and the death of an inmate as the result of ingesting that heroin. The maximum penalty which could be imposed on Counts 1 and 5 of the Indictment is imprisonment for 10 years and a $500,000 fine.
On June 18, 2007, Ross entered a plea of guilty to Counts 1 and 5 of the Indictment pursuant to a plea agreement. The plea agreement stated that "[s]ome quantity of the heroin in question was distributed to inmate Jeremy Lyons who subsequently died from a heroin overdose." In the Statement of Facts filed on June 18, 2007, it was undisputed by Ross that he "arranged for the drug's distribution to many inmates . . . including Lyons directly by himself and through [another inmate]." Doc. 24, Statement of Facts in Support of the Guilty Plea, paragraph 13.
A presentence report was prepared and submitted to the court on September 25, 2007. The Probation Officer determined that the total offense level is 14, the criminal history category is VI and the advisory guideline imprisonment range is 37 to 46 months. In paragraph 62 of the presentence report the Probation Officer stated that an upward departure may be warranted pursuant to U.S.S.G. § 5K2.1 if the court finds that death resulted from the defendant's actions. Ross did not file objections to paragraphs 4 through 16 of the presentence report which outlined the offense conduct. We will adopt those paragraphs as undisputed and include them in our findings of fact set forth below to the extent that they are not covered by the findings of fact submitted by the parties.
A presentence conference was held on September 28, 2007. At that conference the parties suggested that a second presentence conference be scheduled and that in the interim the parties would attempt to determine if a hearing was necessary or whether they could enter into a stipulation regarding the facts. The court scheduled a second presentence conference.
The second presentence conference attended by Assistant United States Attorney Martin, Defense Counsel Smith and Probation Officer Noll was held on November 15, 2007.
At the second presentence conference the court authorized the Government to file a motion for upward departure pursuant to U.S.S.G. §5K2.1 which states in part that "[i]f death resulted, the court may increase the sentence above the authorized guideline range." On November 30, 2007, the Government filed such a motion. Also, at the conference counsel advised the court that there were disputed issues of fact and the court issued an oral order placing the case on the February, 2008, trial list for a presentence hearing. The hearing with respect to that motion was subsequently moved to the April, 2008, trial list and then advanced to March 18 and 19, 2008. The only witness to testify at the presentence hearing was Mark Brown, the cell-mate of Ross. The following are the court's findings of fact, discussion and conclusions of law.
1. On January 15, 2006, the Unit 2A officer at the Federal Correctional Institution, Allenwood Federal Correctional Complex, responded to the duress button in Cell 109 at approximately 11:39 p.m. (Undisputed, hereinafter "U")
2. There he observed one inmate experiencing a medical crisis, not breathing and having blood on his face. (U)
3. When sufficient staff arrived, they entered the cell and observed closely the ill inmate, Jeremy Lyons, who was found lying on the top bunk and acting unresponsively. See paragraph 4 of the presentence report.
4. Staff immediately initiated CPR and emergency medical services were activated who took Jeremy Lyons to the front lobby of the facility while staff continued resuscitation attempts. (U)
5. When EMS personnel arrived on the scene, Lyons was found to be in cardiac arrest and they took the inmate to Evangelical Community Hospital where he was pronounced dead by medical personnel at 12:30 a.m. on January 16, 2006. (U)
6. Staff closed cell 109, declaring it a crime scene and efforts were undertaken by investigative personnel to interview inmates to determine with whom Lyons earlier that evening had associated as well as how he may have died. (U)
7. An initial examination of the inmate's body by both outside medical personnel as well as a later forensic pathological examination suggested recent drug usage in light of a fresh track mark on his left arm that had been bleeding as well as previous drug usage as confirmed by old track marks. (U)
8. A toxicology study revealed that both blood and urine samples tested positive for morphine derivatives which led a forensic pathologist to conclude that the cause of death for 33-year old Lyons was ...