Appellants Soliman and Elbroul appeal from sentences imposed by the United States District Court for the Southern District of New York (Edelstein, J.) under the United States Sentencing Guidelines, after appellants pleaded guilty to possession with intent to distribute a quantity of heroin. Elbroul also challenges his judgment of conviction.
Kaufman, Feinberg and Cardamone, Circuit Judges.
Promulgated in 1984 under the congressional mandate to create uniformity in sentencing, the United States Sentencing Guidelines ("Guidelines") have imposed a detailed apparatus upon the discretion of the trial judge in sentencing a defendant. Although the Guidelines have survived a barrage of constitutional challenges and have undergone numerous amendments, they continue to require interpretation and oversight.
On appeal we must delineate the scope of appellate review of sentences under the Sentencing Reform Act of 1984 (as amended), 18 U.S.C. § 3551 et seq. and 28 U.S.C. § 991 et seq., and consider several challenges to the application of the Guidelines. Our decision reinforces the recently stated position of this court*fn1 barring appeals of sentences falling within a correctly applied Guidelines range absent a violation of law. We uphold a trial judge's informed discretion to consider a foreign conviction in sentencing a defendant, but only in appropriate circumstances.
The undisputed facts pertinent to this appeal can be summarized briefly. After their arrest for selling heroin to an undercover agent, appellants Osama Moustaffa Soliman and Feisa El Sayed Elbroul pleaded guilty on April 14, 1988, to one count of possession with intent to distribute approximately 839 grams of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. Before entering their pleas, the appellants were informed by Judge Edelstein of the Southern District of New York that their offense was punishable by a minimum of 5 and a maximum of 40 years imprisonment.*fn2 Applying the Guidelines, Judge Edelstein sentenced Soliman and Elbroul to 121 and 108 months of imprisonment, respectively.
A base offense level of 30 for each defendant was derived from the quantity of drugs found in Elbroul's possession at the time of the arrests (404.9 grams) and in an apartment (435.1 grams) which the appellants admitted sharing and which Soliman consented to have searched. Based on Judge Edelstein's finding that Soliman and Elbroul testified untruthfully during a suppression hearing, each appellant was further assessed a two-level increase for obstruction of justice under § 3C1.1 of the Guidelines. In addition, Judge Edelstein granted a two-level reduction to each for acceptance of responsibility under Guidelines § 3E1.1. Matching their adjusted offense levels with the lowest criminal history category of I for each defendant produced an applicable Guidelines range of 97 to 121 months imprisonment.
On March 9, 1989, Judge Edelstein sentenced Soliman to the maximum within the applicable range*fn3 because of:
Reports from European law enforcement authorities indicate Mr. Soliman has been involved in narcotics trafficking for over ten years.
All of these facts suggest that this is not a first attempt at drug distribution. Moreover, the defendant admitted to smuggling in the past and has been convicted in Italy for drug trafficking.*fn4
On May 15, 1989, Judge Edelstein sentenced Elbroul to 108 months of incarceration stating that "this term of imprisonment is in the middle of the guideline range and is justified by the quantity of heroin involved, which is also in the middle of the range for the base offense level under the guidelines."*fn5
Soliman contends that Judge Edelstein erred by refusing to lower his sentence for alleged cooperation with the government and by considering improperly a foreign conviction for drug trafficking that was constitutionally unsound. Elbroul challenges Judge Edelstein's reliance on allegedly erroneous information in a presentencing report and the district court's failure to apprise him of the possible sentence under the Guidelines. Before reaching the merits of their claims, we must address the issue whether a sentence that falls within a correctly calculated Guidelines range is appealable.
The Sentencing Reform Act of 1984 (as amended) ("SRA") provides several statutory bases for appellate review of both the legality and the severity of a sentence. 18 U.S.C. § 3742 (Supp. 1989). Briefly stated, under the SRA both the government and defendant can appeal a sentence that: 1) was imposed in violation of law, § 3742(a)(1), (b)(1); or 2) was the result of an incorrect application of the Guidelines, § 3742(a)(2), (b)(2); or 3) was imposed for an offense not contemplated by the Guidelines and is plainly unreasonable. § 3742(a)(4), (b)(4). In addition, a defendant may appeal an upward departure outside the Guidelines range maximum, § 3742(a)(3), while the government may appeal a downward departure to a lower range. § 3742(b)(3).
Congress did not explicitly state whether a sentence imposed within a Guidelines range was appealable. On September 6, 1989, over a month after briefs on appeal were filed but before oral arguments were heard, another panel of this court resolved this open issue. In United States v. Colon, 884 F.2d 1550, 1552 (2d Cir. 1989), we held that a decision by a district judge not to depart downward ...