(5th Cir.1997) (single act of aberrant behavior).
Defendant's offense conduct -- on both November 8 and 15, 1995 -- was aberrant in two senses. First, it was aberrational in comparison to the conduct of other drug conspirators covered by the applicable Guidelines. See United States v. Kalb, 105 F.3d 426, 429 (8th Cir.1997) (particular behavior falling outside of heartland; "aberrational" drug dealer). Second, it was aberrational in the sense that the offense conduct deviated from defendant's own typical behavior. See, e.g., United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.1991) (defendant's conduct an aberration from usual conduct). As to the first point, it is uncontested that defendant was reluctantly doing a favor for a friend, was only a driver, had no interest or involvement in possession or distribution of the contraband, and did not know the specifics of what was being transported -- differentiating him from drug conspirators that fall into the "heartland" cases. As to the second point, defendant's brief meander into criminal activity stands in stark contrast to his posture as a responsible, hard working, fully employed member of the community and a loving, involved and reliable husband and family member. See Pena, 930 F.2d at 1495 (Defendant's "behavior here was an aberration from her usual conduct, which reflected long-term employment, economic support for her family, no abuse of controlled substances, and no prior involvement in the distribution of such substances. . . [This] justified a departure").
That defendant's involvement occurred on two different days, separated by a week, is not decisive. His November 8 and 15 trips were so closely related that they can be understood as a unitary instance of behavior.
The conclusion that defendant's conduct was aberrant is further supported by his conduct after arrest. He went to great effort to provide assistance to the government and the judicial system. He did so even after he was advised by the government that a 5K1.1 letter in consideration for "substantial assistance" would not be forthcoming. Defendant met with Assistant United States Attorneys in this and other districts, as well as F.B.I. agents. He candidly provided what the government concedes to be useful information. He has demonstrated a willingness to, be called upon to testify before a grand jury in another jurisdiction. The government concedes that were there a prosecution of another individual, the defendant would have received a 5K1.1 letter.
Defendant's unusual post-arrest conduct, given the absence of a 5K1.1 incentive, also exemplifies his sincere contrition and therefore, his substantial prospects for rehabilitation. Prospects for, and efforts at, rehabilitation have been recognized as appropriate grounds for downward departure. See, e.g., United State v. Wong, 40 F.3d 1347, 1382 (2d Cir.1992) ("it is well established that a district court should consider a defendant's potential for rehabilitation in determining a sentence") (citing 18 U.S.C. § 3553(a)(1), (2)(D)), cert. denied, 516 U.S. 870, 116 S. Ct. 190, 133 L. Ed. 2d 127 (1995); United States v. Barton, 76 F.3d 499, 503 (2d Cir.1996); United States v. Guiro, 887 F. Supp. 66 (E.D.N.Y. 1995) (5K1.1 and prospects for rehabilitation grounds for downward departure); United States v. Neiman, 828 F. Supp. 254 (S.D.N.Y. 1993) (downward departure based on prospects for rehabilitation); United States v. Cotto, 793 F. Supp. 64 (E.D.N.Y.1992) (downward departure based on, inter alia, efforts at rehabilitation); cf. United States v. Maier, 975 F.2d 944 (2d Cir.1992) (post-offense progress in drug rehabilitation); United States v. Davis, 763 F. Supp. 645 (D.D.C.1991) (likelihood of successful rehabilitation from drug problem warrants downward departure); but see United States v. Cabell, 890 F. Supp. 13, 21 (D.D.C.1995) (no departure for potential for rehabilitation).
While defendant's post-offense conduct arguably supports departure under Guideline section 5K2.0 for assistance to the judicial system beyond that contemplated by sections 3E1.1 or 5K1.1, there is no need to rely on this ground because those already discussed are sufficient for an adequate downward departure. See United States v. Garcia, 926 F.2d 125, 127-28 (2d Cir.1991) ("activities facilitating the proper administration of justice in the District Courts"); cf. United States v. Huerta, 878 F.2d 89, 91 (2d Cir.1989) (departure for substantial assistance to the government pursuant to section 3553(e) of title 18 and section 5K1.1 may not be made absent a motion by the government); United States v. Rexach, 896 F.2d 710, 713 (2d Cir.) (decision to make 5K1.1 motion "expressly lodged in the prosecutor's discretion"), cert. denied, 498 U.S. 969, 111 S. Ct. 433, 112 L. Ed. 2d 417 (1990).
III. Statutory Safety Valve
Violation of section 841(b)(1)(B) requires a statutory minimum term of imprisonment of 5 years. Because defendant is in criminal history category I, was not an organizer or leader in the offense, did not use violence in connection with the offense, truthfully provided the government all the information in his possession, and the offense did not result in death or serious bodily harm to anyone, the statutory minimum does not apply. See 18 U.S.C. § 3553(f).
The court departs downward 12 levels to level 15. Since he appears to be fully rehabilitated defendant is sentenced to 18 months -- the bottom end of the Guideline range. A supervised release term of 4 years and a special assessment of $ 50.00 is imposed. In view of his lack of assets, no fine is imposed.
Jack B. Weinstein
Senior District Judge
Dated: July 11, 1997
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