United States v. Budde , 80 F. App'x 170 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-8-2003
USA v. Budde
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2943
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Recommended Citation
"USA v. Budde" (2003). 2003 Decisions. Paper 216.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2943
UNITED STATES OF AMERICA
v.
MICHAEL BUDDE,
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim No. 02-cr-00027 )
District Judge: Honorable Katharine S. Hayden
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 3, 2003
Before: RENDELL, WEIS and GARTH, Circuit Judges.
(Filed: October 8, 2003)
____________
OPINION
WEIS, Circuit Judge.
Defendant pleaded guilty to importing more than three kilograms of a drug
commonly called “ecstasy” in violation of 21 U.S.C. §§ 952(a), 960(b)(3), and 18 U.S.C. §
2. He was sentenced to 57 months incarceration, at the bottom of the applicable Guideline
range of 57-71 months.
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A co-defendant, Thomas Winkelmann, also received a sentence of 57
months. A third defendant, Brigitte Fassler-Perez, was sentenced to time served, a much
shorter period than those imposed on the other defendants.
In calculating the range under the Sentencing Guidelines, the District Court
credited defendant with a two-level downward adjustment for a minor role. Defendant
contends that because he was merely a courier and had little else to do with the smuggling,
he should have been allowed an additional two-point reduction because he was only a
minimal participant. If that adjustment had been made, the defendant’s sentencing range
would have been reduced to 46-57 months.
The District Court rejected the defendant’s argument, pointing out that
although as a courier he was a minor actor in the conspiracy, his role was not minimal. The
Court also recognized the disparity between the defendant’s sentence and that given to
Fassler-Perez, but pointed out that the difference was the result of the motion for
downward departure made by the United States Attorney’s Office. The district judge
acknowledged that the sentence was a harsh one that troubled her, but that she was required
to follow the Guidelines.
Our role is also limited by those same Guidelines, and we can do nothing
here in this case other than affirm the sentence imposed by the district judge. See United
States v. Castano-Vasquez, 266 F.3d 228, 231 (3d Cir. 2001); United States v. Hunte, 196
F.3d 687, 691, 694 (7th Cir. 1999).
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Accordingly, the judgment of the District Court will be affirmed.
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______________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ Joseph F. Weis, Jr.
United States Circuit Judge
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October 7, 2003
TO: Marcia Waldron, Clerk
United States Court of Appeals
FROM: Judge Weis
RE: USA v. Michael Budde, No. 02-2943
Dear Ms. Waldron:
Please file the enclosed Not Precedential Opinion, together with the
Judgment in the above case. The signed originals are being mailed to you this date. Thank
you.
Sincerely,
Joseph F. Weis, Jr.
United States Circuit Judge
cc: Judge Rendell (letter only)
Judge Garth (letter only)
Pacracts
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