United States v. Reyes (9 F. Supp. 3d 1196, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Kayla Marie Reyes’ Sentencing Memorandum and Motion for a Downward Variance, filed March 21, 2013 (Doc. 45)(“Sentencing Memorandum”). The Court held a sentencing hearing on January 6, 2014. The primary issues are: (i) whether the Court will vary downward to a sentence of 15 months to reflect Defendant Kayla Marie Reyes’ comparatively minimal involvement in an overall drug conspiracy; (ii) whether the Court should vary from the advisory guideline range because of a substantive disagreement, under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), with the United States Sentencing Commission’s Guideline ranges for drug trafficking violations, as did the Honorable John Gleeson, District Judge for the United States District Court for the Eastern District of New York, in United States v. Diaz, No. 11-CR-00821-2, 2013 WL 322243 (E.D.N.Y. Jan. 28, 2013); and (iii) whether the Court should consider the costs of incarceration and supervised release in sentencing. The Court will vary downward, but not as much as Reyes requests: it will vary to a sentence of 30 months, which the Court concludes best reflects the factors that Congress laid out in 18 U.S.C. § 3553(a). The Court concludes that Judge Gleeson’s criticisms of the Commission’s Guideline ranges for drug trafficking lack a sound basis. Accordingly, the Court will not adopt his substantive disagreement under Kimbrough v. United States with the Commission’s Guideline for drug trafficking offenses. The Court varies for reasons tied to the factors in § 3553(a) and to Reyes’ individual circumstances, and not because of a substantive disagreement with the Commission’s ranges for drug trafficking. Finally, the Court will not consider the costs of incarceration and supervised release in sentencing, because the factors in § 3553(a) do not clearly permit the Court to consider costs, and because those concerned about the fiscal implications of criminal justice policy should petition the other branches of government and should not ask the Court to consider such implications in sentencing an individual defendant.

FACTUAL BACKGROUND

The Court sets forth the factual background in two parts. First, it discusses Reyes, her offense, and her arrest. Second, it discusses her allegations about the drug trafficking organization with which she and her half-sister were involved and about the details of the methamphetamine trade.

1. Reyes, Her Offense, and Her Arrest.

At the time of the offense, Reyes was nineteen years old; at the time of her sentencing, she was twenty years old. See PSR ¶ 467, at 9. She “dropped out of high school after the 7th grade when she became pregnant with her first daughter.” Sentencing Memorandum at 7. Reyes now has three children. See Supplemental Sentencing Memorandum and Motion for a Downward Variance at 6, filed December 12, 2013 (Doc. 57)(“Supplemental Sentencing Memorandum”). Reyes’ “daughter suffers from severe asthma which at times requires hospitalization and frequent medical treatment.” PSR ¶ 82, at 15-16. Moreover, Reyes “reports being a vital resource in being a caregiver for her moth-erf — ]who resides in the same apartment eomplex[ — ]as her mother suffers from heart issues, diabetes and high blood pressure.” PSR ¶ 82, at 16. Although Reyes was not married at the time of the offense, she married on October 12, 2012. See Sentencing Memorandum at 6. Reyes has had no contact with the criminal justice system throughout her life. See PSR ¶¶ 40-45, at 9; Sentencing Memorandum at 9. With respect to Reyes’ history and characteristics, the United States argues that, “[ajlthough [she] has no prior documented criminal history, she admitted that she has made two prior transports of drugs.” Response at 3.

Reyes points out that her half-sister recruited her into this crime and contends that, when her half-sister drew her to criminal activity, Reyes “had little direction and no real prospects.” Sentencing Memorandum at 7.

On June 21, 2012, a Drug Enforcement Agency (“DEA”) agent intercepted Reyes and her companion, Christopher Reyes, at a Greyhound Bus Station in Albuquerque, New Mexico. See Presentence Investigation Report ¶ 11, at 4, disclosed February 6, 2013 (“PSR”). With their consent, the DEA agent searched their luggage and discovered a substance that later tested positive for methamphetamine. See PSR ¶¶ 12-20, at 6. The substance weighed 2.35 kilograms. See PSR ¶ 20, at 6.

2. Reyes’ Allegations About the Drug Trafficking Organization With Which Reyes and Her Half-Sister Were Involved, and About the Details of the Methamphetamine Trade.

According to Reyes, Mexican drug operations “import[ ] large quantities of methamphetamine into the United States,” and “utilize[] young women as couriers and maintains bank accounts in the United States.” Sentencing Memorandum at 4. Reyes asserts that such an organization controlled the methamphetamine that she carried. See Sentencing Memorandum at 4. Reyes asserts that drug organizations of this sort now actively recruit young, “desperately poor women to serve as couriers ... because they are less likely to be the subject of police scrutiny, and if apprehended, are easily dispensable,” and that she was caught up in that recruiting strategy. Sentencing Mémorandum at 4. Reyes states that she was “a courier at the very bottom of the enterprise,” and that the organization recruited her “for a paltry profit because, given her poverty, the comparatively modest remuneration was of real value.” Sentencing Memorandum at 5.

Reyes asserts that “[t]he cost of the drug to the owner is nominal and the cost of loss of any individual load transported by a courier is minimal,” and argues that, “[a]s a result, very low level couriers can be entrusted with great quantities of methamphetamine without the quantity bearing any relationship to their importance to the organization.” Sentencing Memorandum at 5. Reyes contends that “[t]he risk to the organization is hot the loss of the street value of methamphetamine, which may be fairly high. Rather, the risk for the organization is the cost of the product, which is very low.” Sentencing Memorandum at k

PROCEDURAL BACKGROUND

On July 10, 2012, Plaintiff United States of America charged Reyes with Possession with Intent to Distribute 500 Grams and More of a Mixture and Substance Containing Methamphetamine and- Aiding and Abetting in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. See Indictment, filed July 10, 2012 (Doc. 17). Reyes pleaded guilty to the Indictment. See Plea Agreement, filed November 14, 2012 (Doc. 36).

In the Plea Agreement, the United States and Reyes stipulated that Reyes was a minor participant in the criminal activity underlying the agreement, and that, therefore, she “is entitled to a reduction of two levels from the base offense level as calculated under the sentencing guidelines.” Plea Agreement ¶ 10.1, at 5. The Plea Agreement also acknowledged that Reyes might be eligible for the “safety valve” provision in 18 U.S.C. § 3553(f)(l)-(5) and U.S.S.G. '§ 5C1.2, but did not resolve that issue. See Plea Agreement ¶ 5, at 3.

The PSR acknowledged that the base offense level would have been 31, see PSR ¶ 29, at 7-8, but concluded that, based on the representation of the Assistant United States Attorney that Reyes “had provided the Government with truthful information concerning the offense,” the USPO “determined that the defendant does meet the criteria of U.S.S.G. § 5C1.2” — that is, the “safety valve” provision — and that a two-level decrease applies, PSR ¶ 30, at 8. The USPO then applied the second 2-level decrease pursuant to U.S.S.G. § 3B1.2 for minor role, to which the parties had stipulated; the USPO calculated her offense level as 27. See PSR ¶¶ 32-34, at 8. After applying the two-level reduction for acceptance of responsibility under § 3E.l(a) and the additional one-level reduction under § 3El.l(b), the PSR calculated her offense level as 24. See PSR ¶¶ 36-38, at 8. The USPO further calculated Reyes’ criminal history category as I, see PSR ¶ 42, at 9, producing a Guideline range of 51-63 months. The USPO initially suggested a sentence of 30 months. See PSR ¶ 83, at 16. In the Second Addendum to the Pre-sentence Report, disclosed December 13, 2013, the USPO revised its recommended variance downward to 24 months, taking into account Reyes’ performance on pretrial release and the birth of her daughter. See Second Addendum to the Presentence Report at 1-2. No party disputed the USPO’s calculations; the parties’ arguments at sentencing centered around a proposed variance.

Reyes points out that she “was released on her own recognizance on June 25, 2012,” and that she “has lived since then in Phoenix, Arizona, and complied with the standard conditions of release. She has been fully compliant, without any incidents.” Sentencing Memorandum at 7. Reyes submits that, during pre-trial release, she “has assiduously applied herself to her education,” attending general educational development (“GED”) classes; although she is not yet prepared to take the GED test, her “instructor describes [her] as a hard worker who is making ‘great progress.’ The pre-sentence report notes this as a basis for a variance.” Sentencing Memorandum at 7 (internal citations omitted). Reyes submits that this “experience has transformed” her: “As she noted to the pre-sentence reporter, 1 really liked going to school. I am learning so much stuff that I had never learned.’ ” Sentencing Memorandum at 7. Reyes asserts that she “has responded well to structure imposed by pre-trial services and has developed a routine by which she has begun to develop a stake in society.” Sentencing Memorandum at 8. Reyes submits that, despite her good start in GED courses, “[s]he was forced to discontinue her GED efforts this year when her pregnancy became .problematic.” Supplemental Sentencing Memorandum at 6. Reyes has, after the birth of her daughter, worked for a temporary employment agency, and, “[o]n December 2, 2013, she began a new position working at Signature Breads and earning $7.80 per hour.” Sentencing Memorandum at 6 (citing Letter from Premier Employee Solutions to To whom it may concern, executed November 22, 2013, filed December 12, 2013 (Doc. 58)).

In her Sentencing Memorandum, Reyes reminds the Court that it must consider the factors in § 3553(a) that Congress laid out for courts to consider in deciding an appropriate sentence. See Sentencing Memorandum at 1-2. Reyes concedes that her Guideline range is appropriately calculated at 51-63 months, but points out that her plea agreement allows her to seek a downward variance; she asks the Court to vary downward to a sentence of 15 months. See Sentencing Memorandum at 2. Reyes contends that the nature and circumstances of the offense — one of the factors listed in § 3553 — “are particularly important in assessing the requested variance.” Sentencing Memorandum at 3.

Reyes concedes that statistics to support that assertion “are difficult to collect” and that her “[c]ounsel has not been able to find studies that separate drug arrests by gender and by charge, such as simple possession versus distribution quantities.” Sentencing Memorandum at 4-5. Reyes submits that “[incarceration rates for women from 1985 to 2006, however, rose 300%. Drug offenses constitute the bulk of these increase[s].” Sentencing Memorandum at 5 (citing Randall G. Shelden, Sentencing Patterns, the War on Drugs and Women at tbl. 1, http://www. sheldensays.com/res-nineteen.htm). Reyes’ counsel also states that, “[anecdo-tally, lawyers for the Federal Defenders Office in Albuquerque have seen a significant increase in the use of women as couriers.” Sentencing Memorandum at 5.

Reyes states that the PSR notes her performance in pursuing her GED “as a basis for a variance,” Sentencing Memorandum at 7 (internal citations omitted). Reyes also submits that, although “she had little direction and no real prospects” when her half-sister drew her into criminal activity, “[s]he comes to sentencing in a much different posture.” Sentencing Memorandum at 7. Reyes contends those who commit courier crimes have little economic attachment to society, “are generally underemployed, have minimal skills and [have] no sense that there is a place or future for them in the legal economy.” Sentencing Memorandum at 8. “To change that mentality, which is particularly susceptible to the temptations of crime,” Reyes contends that “a person must feel that there is a possibility for a decent life from lawful pursuits. As long as there is no expectation that one can improve one[’s] circumstances, people will be at risk of turning to desperate, illegal options.” Sentencing Memorandum at 8. According to Reyes, she is only now appreciating that she can change her poverty and marginalization, and that she, therefore, “now presents a better prospect for rehabilitation and future productivity than she might have at the time of her arrest.” Sentencing Memorandum at 8.

Turning to the Guidelines, Reyes suggests that they “are founded upon the theory that there is a direct relationship between the quantity of drugs possessed and the significance of the possessor within the enterprise.” Sentencing Memorandum at 5. Reyes argues that this rationale does not apply in the methamphetamine context, because it “is now manufactured by large efficient factories in Mexico which operate with little fear of apprehension,” and with very low manufacturing costs. Sentencing Memorandum at 5. Accordingly, Reyes submits that “[t]he premise underlying U.S.S.G. § 2D1.1 is misplaced. The quantity of drugs bears no significant relationship to the importance of the defendant. Therefore, Ms. Reyes’ drug quantity base offense level of [2]4, grossly overstates her real importance in the economy of methamphetamine trafficking.” Sentencing Memorandum at 6.

Reyes concedes that other reductions— those “pursuant to U.S.S.G. [§§] 2Dl.l(a)(5)(B) and 3B1.2 (mitigating role)” — have “reduced her base offense level by 5 levels.” Sentencing Memorandum at 6. Reyes insists, however, that even the adjusted level of 29 “over represents Ms. Reyes’ role in an organization which the case agent described as ‘only a courier’.” Sentencing Memorandum at 6 (quote unattributed). Reyes points out that “[t]he sentence reporter noted that ‘the defendant was identified as a courier and appeared to be working under the direction of another.’ It is noted the defendant has no criminal history.’ [sic] The presentence report also notes her subservient role in the offense as a ground for variance.” Sentencing Memorandum at 6 (citing PSR ¶ 82, at 15).

Turning to the sentencing factors, Reyes submits that, while a Guideline sentence might be appropriate “for an involved drug dealer who had a proprietary interest in the shipment,” that rational does not extend to her: she “was called [sic] from the most susceptible, vulnerable, and targeted population to serve as a drug courier,” and, accordingly, “[a] guideline sentence would not adequately take into account her role as the most unsophisticated and unconnected courier for those reaping the greatest profits from her efforts.” Sentencing Memorandum at 6. Moreover, she points out that “she has realized the seriousness of her offense and has disassociated herself from the criminal element.” Sentencing Memorandum at 6-7. Reyes argues that a less-than-Guidehne sentence would adequately deter her and reflect the seriousness of her offense, and that, “[g]iv-en her exceedingly low level in the drug organization and her renunciation of even that activity,” a lower sentence “will adequately protect the public from any further crimes of the defendant.” Sentencing Memorandum at 7.

With this backdrop, Reyes suggests that she has taken it upon herself to pursue education and training, “firmly grasp[ing] the rehabilitations offered her which, ironically, may not have been so apparent before her arrest.” Sentencing Memorandum at 8. Reyes contends that a long sentence would compromise her “position as an expectant mother and current care giver for two young children.” Sentencing Memorandum at 8. She argues that the fact “[t]hat she has responded well to a structure similar to that which she will face upon supervised release all bodes well for the future and diminishes the need for a guideline sentence to protect the public from future crimes.” Sentencing Memorandum at 8.

Reyes also points out that she not only lacks criminal history points, but she also “has had no contact with the criminal justice system in any respect throughout her life,” and argues that “[ ]her complete lack of sophistication or experience with the criminal justice system indicates that not only is her instant crime a relatively aberrant act, but that her prospects for rehabilitation are exceptionally good.” Sentencing Memorandum at 9. Reyes submits that she “is a naive, essentially harmless person,” and that she has never “been subject or even aware of the extraordinary severity of federal drug crime sentences.” Sentencing Memorandum at 9. Accordingly, Reyes submits that her “knowledge of the criminal sanction is so scant that the general deterrent value of those sanctions was not of significant value.” Sentencing Memorandum at 9. She continues:

Ms. Reyes’ first foray into the criminal justice system was an exceedingly severe one. The prospect of mandatory mínimums and severe guideline sentences are now not lost upon her. She is now pregnant and will have the child while incarcerated. Her other two children have numerous medical difficulties. As the primary care giver for her children to whom she is deeply committed, the severity of the consequences of her actions are not lost upon her. She has learned an invaluable lesson. Enforcing an extreme sanction is not necessary to drive it home to this otherwise, insignificant citizen.

Sentencing Memorandum at 9 (citation omitted).

In light of those facts, Reyes suggests that the Court must “consider the need for the sentence to reflect the seriousness of the offense and provide just punishment,” as well as “the need for the sentence imposed ... to afford adequate deterrence to criminal conduct.” Sentencing Memorandum at 9. Reyes states that her “absolute lack of any involvement with the criminal authorities means that the deterrent value of an imposed criminal sanction has not been tested upon her and found to fail,” in contrast with one who has had much contact with the criminal justice system, who “can be seen to have been forewarned in a most direct and hopefully meaningful fashion.” Sentencing Memorandum at 10. Reyes argues that imposing a severe sentence would be unnecessary, given that she has not been arrested or “had direct contact with the criminal sanction.” Sentencing Memorandum at 10. In sum, Reyes contends that, given her

responsibilities and bonds as a mother, the prospect of giving birth in custody and the obvious harm which her absence will cause her children, a prison sentence for Ms. Reyes exact a greater level of misery than that for someone without such maternal bonds to the free world. That she may suffer more greatly than one not similarly situated, means that a less than guideline sentence will exact an adequate measure of punishment.

Sentencing Memorandum at 10.

In the Government’s Response to Defendant Kayla Marie Reyes’ Sentencing Memorandum and Motion for a Downward Variance (Doc. 45), filed March 28, 2013 (Doc. 47)(“Response”), the United States concedes that a variance may be justified, but opposes the variance down to 15 months that Reyes suggests. Response at 1. The United States first reminds the Court that Reyes pled guilty to “Possession with Intent to Distribute 500 Grams and More of a Mixture and Substance Containing Methamphetamine. If the Defendant had been convicted at trial, she faced a guideline imprisonment range of 120 months.” Response at 1. The United States asserts that, when a DEA agent encountered Reyes at a bus station, Reyes consented to a search of her luggage, in which the DEA found “2.35 gross kilograms of Methamphetamine.” Response at 2.

With respect to the nature and circumstances of Reyes’ offense, the United States suggests that Congress expressed its views of the seriousness of the crime of possession with intent to distribute a controlled substance “by imposing a penalty of ten years to life in prison for those convicted of 21 U.S.C. § 841(a)(1) and (b)(1)(A).” Response at 2. With respect to Reyes’ history and characteristics, the United States argues that, “[although [she] has no prior documented criminal history, she admitted that she has made two prior transports of drugs.” Response at 3. The United States notes that Reyes is working to obtain her GED. See Response at 3. In response to the need for the Court to impose a sentence that promotes respect for the law, provides just punishment, affords adequate deterrence, and protects the public from any future crimes by Reyes, the United States contends that a sentence within the Guideline range of 51-63 months “is a reasonable sentence based upon the Defendant’s eligibility for the ‘safety valve’ provision and role adjustment as a minor participant.” Response at 3. The United States asserts that, to avoid unwarranted sentencing disparity, a Guideline sentence is the best approach, and that the Guideline sentence of between 41 and 51 months is appropriate. See Response at 3. With respect to the need to provide Reyes needed training or treatment, the United States asserts that Reyes’ “failure to contemplate consequences before acting has seriously impacted her own life as well as the safety of the community.” Response at 3. Accordingly, the United States asks the Court to “conclude that a sentence within the guideline imprisonment range of 41 to 51 months would constitute a reasonable sentence.” Response at 3. If, however, the Court decides that it is appropriate to vary from the Guideline range, “the United States would recommend that to avoid unwarranted sentencing disparities between defendants who have committed similar crimes or as in this case, defendants who receive reductions in their guideline range due to ‘safety valve’ and role adjustment, that any variance no [sic] go below thirty months.” Response at 3.

In her Supplemental Sentencing Memorandum, Reyes asserts that sentencing has been delayed on her motions for continuance based on “her pregnancy, the birth of her daughter and the need to breast feed her newborn. During this period several additional factors arose which are pertinent to the requested variance.” Supplemental Sentencing Memorandum at 1. The first fact relates to the nature and circumstances of the offense: Reyes points out that her half-sister recruited her. See Supplemental Sentencing Memorandum at 1. She further asserts that, together with her “extraordinary progress on pre-trial release,” her break from her criminal colleagues “certainly augers well for her future law abiding behavior.” Supplemental Sentencing Memorandum at 2. Further, Reyes argues that, given “her lack of prior record” and her “amenability to supervision and renunciation of her criminal activity,” she is “unlikely to repeat her criminal conduct, and the Court need not, therefore, be concerned with protecting the public from future crimes.” Supplemental Sentencing Memorandum at 2-3.

Reyes next returns to an important theme from her Séntencing Memorandum: “[G]iven the global nature of the manufacture of methamphetamine, the quantity of methamphetamine she possessed over represents the significance of her role in the drug trade.” Supplemental Sentencing Memorandum at 3. In additional support for her thesis, Reyes points to United States v. Diaz, in which Judge Gleeson, criticized “the treatment of drug couriers under the sentencing guidelines.” Supplemental Sentencing Memorandum at 3. In Reyes’ telling,

Judge Gleeson faults .the sentencing guidelines because they are conceptually tied to the mandatory minimum sentences Congress enacted in Title 21. By these severe sentences Congress intended to punish those with significant roles in the crimes of drug trafficking operations. Guideline sentences, however, are not triggered by the role of the defendant but solely by the drug type and quantity. Instead of hinging a ten year mandatory minimum on the government’s proof that the defendant was in a leadership status, the guidelines simply use larger drug quantities as the .basis for longer sentences. [United States v. Diaz, 2013 WL 322243, at *2] (“The genesis of the structural flaw ... is rooted directly in the fateful choice by the original Commission to link the Guidelines ranges for all drug trafficking defendants to thq onerous mandatory minimum penalties in [Title 21].”)[.] For instance, a 10 year mandatory minimum is triggered under 21 U.S.C. § [ ] 841(b)(1)(A) at 50 grams of actual methamphetamine. The same quantity of methamphetamine under the guidelines establishes a base offense level of-32 and a sentencing range of .121 to 151 months. U.S.S.G. § []2D1.1 (Drug Quantity Table). , Judge Gleeson notes that the mandatory mínimums are not based on empirical data, commission expertise, or actual[ ] culpability of the defendant.

Supplemental Sentencing Memorandum at 3-4. Reyes suggests that the Department of Justice (“DOJ”) shares Judge Gleeson’s assessment:

Were Ms. Reyes prosecuted today for the same offense she would have the benefit of the [Memorandum from Eric H. Holder, Jr., Att’y Gen. of the United States, to U.S. Att’ys and Assistant U.S. Att’ys for the Criminal Div. re: Department Policy on Charging Mandatory Minimum Sentences and Recidivist enhancements in Certain Drug Cases (Aug. 12, 2013) at 1, available at http:// big.assets.huffingtonpost.com/Holder MandatoryMinimumsMemo.pdf (“Holder Memorandum”) ]. This memorandum sets a policy to avoid charging first time drug offenders who meet criteria of a minimal criminal history, lack of violence and lack of organizational role.- Of course, as Judge Gleeson notes, while this policy may have saved Ms. Reyes from the “mandatory minimum frying pan” it still leaves her in the “Guidelines’ fire”. Id. at 1. Nevertheless, it makes little sense to apply Guidelines constructed for those with a proprietary interest or organizational role in the drug trade to the likes of Ms. Reyes.

Supplemental Sentencing Memorandum at 4. Reyes submits that whether a courier carries a large quantity “bear[s] no .relationship to a courier’s role in the organization.” Supplemental Sentencing Memorandum at 4. Reyes continues:

This is particularly true with methamphetamine which is now being manufactured in Mexico at almost no cost to the manufacturer. The proprietary investment is so minimal and the potential profits so high that drug networks are willing to entrust low level individuals who have no link to the organization with enormous quantities of drugs. Although these drugs may have a high retail/street value, the cost to the manufacturer is negligible. Therefore, the risk of loss in entrusting large quantities to minor players is small. As a result the quantity with which a courier is caught bears no relationship to his or her position in the network. Draconian guideline sentencing levels which treat such individuals as leadership figures based solely on quanti[t]y bear little relationship to reality. They work an inherent unfairness, fill our prisons and spend our criminal justice resources without attacking any of the root sources of drug distribution. A guideline sentence for a mere courier does little to further general deterrence. Similarly, it vastly overstates the severity of the offense. 18 U.S.C. § [13553(a)(2)(A).

Supplemental Sentencing Memorandum at 4-5.

Reyes, further elaborates on her post-arrest rehabilitation argument in her Sentencing Memorandum, stating that she “is the epitome of the poor, unsophisticated women who become caught up as low level couriers in the drug trade.” Supplemental Sentencing Memorandum at 5. She reiterates her arguments from her Sentencing Memorandum, and adds that she had very young children and that she lived “in a one bedroom, one bath apartment.” Supplemental Sentencing Memorandum at 5. She notes that “[t]he supervising pretrial officer reported that [she] ‘is not living above her means” and states that “[tjhese means are extraordinarily meager.” Supplemental Sentencing Memorandum at 5. She notes that, even though her poverty, chil-drearing responsibilities, “and limited options for present or future security” exerted substantial pressure on her, she “has never, not once, been involved with the criminal law.” Supplemental Sentencing Memorandum at 5.

Reyes comments that a

sad iron[y] that plagues the poor who become federal criminal defendants is that pre-trial conditions of release can provide them with opportunity, structure and discipline which, if provided before their arrest, might well have kept them from criminal conduct altogether. After achieving, often for the first time, some positive momentum in their lives, they face sentencing and the loss of all they have accomplished on pre-trial supervision. This is certainly the conundrum that Ms. Reyes presents to the court.

Supplemental Sentencing Memorandum at 5. She also argues that, “[m]odest as [her new income] this may seem,” she argues that, “for a 20 year old with no skills or employment history it is a breakthrough development.” Supplemental Sentencing Memorandum at 6. Reyes further points out that she married on October 12, 2012, and that “she and her husband are raising their new baby girl, Faith Reyes-Romero, and her two other children.” Supplemental Sentencing Memorandum at 6. She states that her husband works for the same temporary employment agency that she does. See Supplemental Sentencing Memorandum at 6. She continues:

She has a measure of stability, investment in a working life and a new found realization that she has a realistic stake in building a social and economic base for her family. For the first time in her life Ms. Reyes overcame the hopelessness felt by those for whom the American economy seemingly has no place or who lack the stability or basic social skills to navigate it. Given Ms. Reyes’ marginal- and transitory connection to the drug distribution world, it would seem wasteful of penological resources, to incarcerate her. The Court is to consider the protection of the public from future crimes of the Defendant. 18 U.S.C. § 3553(a)(2)(C). Given her seventeen months of successful pre-trial supervision [and] the upward trajectory of her circumstances Ms. Reyes does not represent a significant threat to the public.

Supplemental Sentencing Memorandum at 7.

Reyes also argues that incarcerating her would be expensive — costing “approximately $28,893 annually” — and that supervised release would be cheaper. Supplemental Sentencing Memorandum at 7. She contends that incarceration, although sometimes necessary, “is also an expensive response that should be employed sparingly in a time of federal austerity.” Supplemental Sentencing Memorandum at 7. She submits that, “[ujnless a lengthy term of incarceration is clearly mandated by the nature of the crime or the offender, this may be a time to opt for more cost effective options.” Supplemental Sentencing Memorandum at 7. She argues that “poverty, her children’s needs and her perceived dearth of economic options” drove her crime, and that, without those circumstances, she probably would not “find her way to the criminal courts,” particularly given her “complete lack of criminal history.” Supplemental Sentencing Memorandum at 7. Reyes maintains that, “[a]s someone who has proven her amenability to supervision and treatment consistently over the past seventeen months, the cost of incarceration seems a needless excess.” Supplemental Sentencing Memorandum at 7. In her view, “[a] fifteen, month sentence with a term of lengthy supervised release will allow [her] to continue on the productive path upon which she has already embarked during the pendency of this case.” Supplemental Sentencing Memorandum at 7. Moreover, she asserts that doing so would “save criminal justice resources for those who have committed violent crimes, have a history of not learning from their mistakes or who otherwise need or deserve lengthy terms of incarceration,” and cites eases in which other courts have concluded that the circumstances in the cases before them did not justify the cost of incarcerating the, defendant. Supplemental Sentencing Memorandum at 7-8 (citing United States v. Angelos, 345 F.Supp.2d 1227 (D.Utah 2004); United States v. Hughes, 825 F.Supp. 866 (D.Minn.1993)).

Reyes contends that nothing in her background before this crime merits a Guideline sentence, and that

her obvious status as a novice, naive courier and the aberrant nature of her offense argues for less than a guideline sentence. A sentence of fifteen months perhaps with a period of home confinement as a condition of supervised release will satisfy the purposes of sentencing set forth in 18 U.S.C. § 3553.

Supplemental Sentencing Memorandum at 8. '

Reyes also asks the Court to “recommend to the Bureau of Prisons that she be designated to FCI Phoenix (Female Satellite Camp) to be near her family and children, all of whom reside in Phoenix. She requests voluntary surrender.” Supplemental Sentencing Memorandum at 9.

The Court held a sentencing hearing on January 6, 2014. See Transcript of Hearing, taken January 6, 2014 (“Tr.”). The United States moved for the third-level downward adjustment' for acceptance of responsibility, with no objection from Reyes. See Tr. at 2:7-16 (Court, Brawley, Winterbottom). The Court confirmed that, following that adjustment, the offense level was 24 and the criminal history category was I, which provided a Guideline imprisonment range of 51-63 months, and Reyes agreed. See Tr. at 2:17-2:21 (Court, Winterbottom).

Upon the Court’s invitation, Reyes argued for a downward variance. See Tr. at 2:23-3:4 (Court, Winterbottom). Reyes asserted that she is twenty years old, has three children, and has “absolutely no criminal history or previous contact, for that matter, with the law enforcement system, nothing whatsoever.” Tr. at 3:7-10 (Winterbottom). Reyes asserted that she is “the most marginally placed person in drug commerce,” that she is “naive” and “unsophisticated,” and that “she’s basically a somewhat harmless mule in a much larger universe, the extent, severity and cruelty of which she had no idea when she first started to transport this methamphetamine that brings her before the Court.” Tr. at 3:10-16 (Winterbottom). Reyes asserted that “nobody on this side of the bench is strenuously opposing a variance,” noting that the USPO “has recommended a variance of 24 months” and that, even though the United States believes that the floor of the variance should be thirty months, it nonetheless agreed that the facts may justify something of a variance. Tr. at 3:17-24 (Winterbottom). Reyes suggested that her progress since she filed her Sentencing Memorandum might have justified an argument for more than the fifteen-month variance that she requested. See Tr. at 3:25-4:9 (Winterbottom). Reyes reiterated her argument about the cost of incarcerating and supervising her, and asserted that “[supervision has proven miraculously successful since June 25 of 2012.” Tr. at 4:10-15 (Winterbottom). The Court acknowledged United States v. Diaz, but asked which factor in 3553(a) allows the Court to consider cost of incarceration; Reyes suggested that the Court might consider cost under “the kinds of sentences available” prong in § 3553(a)(3). Tr. at 4:16-5:7 (Court, Winterbottom). The Court asked whether, if it determines that incarceration is appropriate for a particular defendant, it should take cost of incarceration into account, or whether that is the legislative branch’s province; Reyes suggested that the Court’s question was fair, but contended that, when the Court incarcerates a defendant, the Court inevitably imposes costs on the nation that are similar to a tax, and that, following the Supreme Court of the United States’ decisions that rendered the Guidelines advisory, the Court should read the 3553(a) factors to encourage it to look at public policy concerns, including financial concerns. See Tr. at 5:8-6:23 (Court, Winterbottom). Reyes submits that, unlike other sentencing considerations such as what the defendant would do when she is released and deterrence arguments, “[financial [considerations] are immediate.” Tr. at 6:22-6:2 (Winterbottom). Accordingly, Reyes suggests that, even though Congress did not expressly, list - financial considerations among the sentencing factors in 3553(a),

the spirit of 3553 says public policy is important and it is something you can’t ignore, and once the Supreme Court said you’re supposed to consider the 3553 factors, I think it allows the Court, if the Court is so inclined[,] to consider public policy concerns, particularly[,] as I noted in my memorandum, when those kind of financial policy concerns are more and more being voiced as subjects worthy of consideration when we look to public policy and to criminal justice issues.

Tr. at 7:4-14 (Winterbottom).

Reyes then pivoted to discuss other bases for a variance, beginning with specific deterrence: she points out that she committed this crime when she was nineteen years old and lacked any criminal history. See Tr. at 7:22-8:11 (Winterbottom). Moreover, she argued, she did well in her GED training until she became pregnant, got married, and started working; she nonetheless asserted that her new full-time employment “is an enormous, enormous new factor in her life that wasn’t present when she committed this crime.” Tr. at 8:12-19 (Winterbottom). She clarified that, although she had started work with Signature Breads, she has since “started a job in a recycling plant, and is now working full-time” in addition to caring for her children, a responsibility she shares with her husband. Tr. at 8:19-23 (Winterbot-tom).

Reyes’ counsel also asserted that, after three decades of working in criminal justice, he has “become more and more convinced that the key [is] establishing in the defendant’s mind a stake in the economy, in the fabric of law abiding life,” and stated that such defendants needed the structure that Pre-trial Services provided Reyes; in his view, Reyes now had such a structure to emerge from the life of poverty and idleness that led her to this crime. Tr. at 9:22-10:19 (Winterbottom). He asserted that Reyes had blossomed through pre-trial services, and that her life “is on an upward trajectory for the first time” and that the Court should consider that factor in fashioning her sentence. Tr. at 11:21-25 (Winterbottom).

With respect to general deterrence, Reyes stated that, if the forty-year war on drags “hasn’t exacted a general deterrence, then the incremental general deterrent effect of [her] sentencing is going to be exceedingly” de minimis. Tr. at 11:1-9 (Winterbottom). She also points out that she is a mother of three children, and that “all the literature shows that when parents leave children and leave them to the care of others” while imprisoned, “the prospects for the child’s success diminish. Tr. at 11:9-14 (Winterbottom). She asserts that the Court should consider the impact on her family, that she is “a loving, supportive and appropriate mother for the most part,” with the exception of this case, and that the Court should consider reducing her sentence on the basis of her generally good parenting. Tr. at 11:14-12:1 (Winterbot-tom).

Reyes asked the Court to sentence her to a period of 15 months: in her view, that length is a significant period of incarceration under the circumstances, and it will give her time to finish her GED. See Tr. at 12:2-6 (Winterbottom). She submits that she has made considerable progress towards that goal and that, although “[s]he is not a gifted scholar by any stretch of the imagination ... she was an enthusiastic one, and[,] ... with the discipline and the structure of the Bureau of Prisons for a not exceedingly long[]term she will be able to accomplish that task.” Tr. at 12:6-13 (Winterbottom). Reyes also reiterated her request for voluntary surrender and to be assigned to the women’s prison in Phoenix: according to her, if the Court grants voluntary surrender, she will be more likely to be eligible for that prison, “which is the only women’s facility in Arizona.” Tr. at 12:14-25 (Winterbottom). She noted that, given her family’s poverty, it would be difficult for her family to visit her if she is not incarcerated in Phoenix. See Tr. at 13:3-11 (Winterbottom).

The Court then asked Reyes if she wished to speak. See Tr. at 13:20-24 (Court). Reyes apologized and stated that living with her mistakes has made her a better person than she was when she committed the offense. See Tr. at 13:25-2 (Reyes). She stated that time away from her children was difficult. See Tr. at 14:2-3 (Reyes). She continued: “Me just leaving them now is very hard, knowing they are just outside. My daughter knows what’s happening, it’s just, I don’t know, I did make a mistake and I apologize for it. That’s all I can say.” Tr. at 14:3-7 (Reyes). The Court asked if Reyes had any assets; Reyes said she did not. See Tr. at 14:8-19 (Court, Reyes).

The United States reiterated its Response’s request that the Court impose a sentence at the low end of the Guidelines and that, if the Court varies, it impose a sentence no lower than thirty months. See Tr. at 15:20-16:4 (Brawley). The United States contended that Reyes’ offense is significant: “The defendant possessed 2.35 kilograms of a mixture and substance of methamphetamine. It only takes half of a kilogram to trigger a 10 to life sentence.” Tr. at 15:5-8 (Brawley). The United States conceded that Reyes has no criminal history, but noted that Reyes benefits from the safety-valve reduction and from the minor-role reduction, which “dropped her range which otherwise would have been at least 120 months down to 51 to 63 months.” Tr. at 15:15:9-16 (Brawley). The United States acknowledged that Reyes’ family would face hardships, but stated that “virtually every ... defendant that crosses through th[is] courtroom has children!,] has a family that is impacted.” Tr. at 15:17-22 (Brawley). The United States also pointed out that Reyes committed this offense aware that she had two young children and that she knew when she entered a guilty plea that, if she had a third child, the third child would also suffer her actions’ consequences. See Tr. at 15:17-16:1 (Brawley). The United States submitted that, if the Court varies down as much as Reyes requested, it would create an unwarranted sentencing disparity, particularly given that couriers, many of whom are in similarly desperate financial situations, are arrested frequently. See Tr. at 16:1-11 (Brawley). The United States commended Reyes for doing well on pre-trial supervision and for acquiring new skills, but stated that

the fact that she’s done well shouldn’t warrant such a drastic variance. The fact she has done so well is what has allowed her to spend all of this time at home with her children rather than already in custody. And so the Government’s primary concern [is that] there would be an unwarranted sentencing disparity if she really received a sentence of 15 months....

Tr. at 16:11-24 (Brawley).

The Court then stated the sentence. See Tr. at 17:3-6 (Court). The Court accepted the plea agreement, the PSR’s factual findings, and the PSR’s Guideline calculations. See Tr. at 17:6-14 (Court). The Court stated that Reyes meets the criteria of 18 U.S.C. § 3553(f)(l)-(5), and that the Court would, therefore, impose the sentence pursuant to U.S.S.G. § 5C1.2 without regard to the statutory mandatory minimum. See Tr. at 17:17-22 (Court). The Court confirmed that the offense level was 24 and that the criminal history category was I, yielding a Guideline imprisonment range of 51-63 months. See Tr. at 17:22-24 (Court). The Court noted that it had considered the Guidelines, but had considered other factors as well, and concluded that the punishment that the Guidelines set forth is not appropriate for Reyes. See Tr. at 17:24-18:10 (Court). The Court noted certain factors that put downward pressure on the Guidelines range: (i) Reyes’ age; (ii) her lack of criminal history; (iii) she is a mother of three children, on whom her sentence would have an impact; (iv) she not only had no criminal history, but had no contact with law enforcement, juvenile or otherwise, which shows that her offense was an aberration; (v) she had a minor role, both in the offense and also in the drug world generally; (vi) she is naive and unsophisticated; (vii) she seems harmless, which reduces the need for specific deterrence; (viii) that she is married and working, with family support, which leads to increased stability in her life and enables her to provide for her family and to attach to the community; (ix) she showed significant progress in pretrial supervision, “us[ing] this time wisely to show that she is a good candidate for rehabilitation.” See Tr. at 18:10-21:1 (Court). The Court also noted, with reference to the § 3553(a) factors, that “I don’t think a sentence up in the 51 range would provide just punishment” or “promote respect for the law. Tr. at 21:2-8 (Court). The Court found that those factors, taken together, pressed the sentence downward. See Tr. at 21:8-9 (Court).

The Court identified certain factors that put upward pressure on the sentence-pressure that might keep the sentence within the Guideline range. See Tr. at 21:10-13 (Court). The Court first noted that it disagreed with Judge Gleeson’s opinion that courts should consider costs; it noted that it had been putting together an opinion that would respond to Judge Gleeson’s opinion, and stated that, although after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), “there is probably not a factor that a Court can’t consider,” the Court nonetheless does not “consider [cost] to be a very legitimate factor for a Court to consider.” Tr. at 21:13-21:24 (Court). The Court resisted Reyes’ characterization of what it does in sentencing as a tax, noting that the Court is, instead,

spending the money that’s been appropriated to us by Congress, and while ... I certainly recognize that our sentence^] have costs and impact public policy, the sentencing is difficult enough, I think judges should probably work very hard to come up with a sentence that reflects the factors in 3553(a) and not try to get too far away from that.

Tr. at 21:24-22:7 (Court). The Court indicated that it did not believe that it should consider cost as a way of evaluating the kinds of sentences available, because that statutory factor asked what sorts of punishments liare available to promote the factors in 3553(a), not really get the Court drug into worrying about how it’s going to be paid for.... I think that primarily is the role of the political branch and the executive branch, rather than judges.” Tr. at 22:7-15 (Court).

Returning to Reyes, the Court listed the following factors: (i) the seriousness of the offense, particularly given that the amount of methamphetamine Reyes carried would impose a mandatory minimum, which reflects Congress’ concern about this crime; (ii) the sentence must promote respect for the law — a two-edged sword in this case— and (iii) the sentence must provide general deterrence, and, although Reyes may be correct that “nobody outside of this room may be concerned about what this sentence is,” the Court must, nonetheless weigh “hów its decision in this case and federal courts cumulatively, how their sentences generally deter this criminal activity that Congress has criminalized] and as long as it’s criminalized] I think it’s the federal Court’s obligation to punish it as Congress has suggested,” Tr. at 23:17-22 (Court); (iv) the need to provide a just punishment — another two-edged sword, because the Court wants to provide a just punishment — and (v) the need to promote respect for the law both gave the Court some pause, because (vi) the Guidelines already incorporate some of the factors that push her sentence downward; (vii) she had two children when she engaged in this activity; (viii) the Court must recognize that it sentences many people with families for many different crimes, and that if the Court weights too heavily the impact on the family in individual cases, it will create sentencing disparities; and (ix) the Court noted the United States’ error in the briefing, and stated that it was not clear what the attorney who prepared the brief “would have thought the bottom of the variance range should be if he had realized that it was a mistake. He might have thought it was higher, he might have meant 30 regardless and maybe it is a typo. But I don’t know.” Tr. at 22:16-25:13 (Court). The Court indicated that it could justify that these factors balance in favor of a variance, but only slightly. See Tr. at 25:13-16 (Court). The Court said that one could justify the 41-month- sentence that the United States had suggested, but stated that a variance was appropriate; the Court indicated that it had considered Reyes’ request for a 15-month sentence, probation’s original request for a 30-month sentence, and probation’s final request of a 24-month sentence, and concluded that it could not justify pushing the sentence down that far. See Tr. at 25:16-26:2 (Court). The Court also stated that pushing the sentence to 30 months is, also, a stretch, but that it concluded that a sentence of “30 months is adequate to reflect the seriousness of the offense and promote respect for the law, and provide just punishment, afford adequate deterrence at both a specific and general level.” Tr. at 26:2-8 (Court). The Court stated that it had not emphasized protecting the public, as its downward-pressure calculation indicated. See Tr. at 26:8-10 (Court). The Court stated that to go below this sentence would risk creating unwarranted sentencing disparities among similar defendants found guilty of similar conduct. See Tr. at 26:10-14 (Court). The Court said that a variance is also appropriate because it provides Reyes needed education, training, and care to prevent this issue from recurring. See Tr. at 26:14-19 (Court). The Court concluded that the sentence better reflects the factors that 18 U.S.C. § 3553(a) embodies than the bottom of the Guideline range would, and that, although its task is not to come up with reasonable sentences, but to come up with sentences that reflect the 18 U.S.C. § 3553(a) factors, see United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.2007) (“[A] district court’s job is not to impose a reasonable sentence. Rather, a district court’s mandate is to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of section 3553(a)(2).” (citation omitted)), it believed the sentence was reasonable and, perhaps most importantly, sufficient without being greater than necessary to comply with the purposes- of -punishment set forth in the Sentencing Reform Act” of 1984, Pub.L. No. 98-473, 98 Stat.1987 (codified as amended in scattered sections of 18 U.S.C.). Tr. at 26:19-27:4 .(Court).

The Court noted that certain sentencing factors in 18 U.S.C. § 3553(a)(1) warrant a sentence outside of the Guideline range. See Tr. at 27:10-15 (Court). The Court indicated that three statutory factors guided the Court’s conclusion: the nature and circumstances of the offense, and the history and characteristics of the defendant, see 18 U.S.C. § 3553(a)(1); the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment, see 18 U.S.C. § 3553(a)(2)(A); and the need to afford adequate deterrence to criminal conduct see 18 U.S.C. § 3553(a)(2)(B). See Tr. at 27:15-23 (Court). The Court noted that Reyes was nineteen years old when she committed the crime, that she is the primary caregiver for three children under the age of three, one of whom suffers from severe asthma, which sometimes requires urgent and frequent medical care, that she also is an important caregiver for. her mother, who suffers from several significant health conditions. See Tr. at 27:23-8 (Court). The Court noted that Reyes dropped out of school after seventh grade, when she became pregnant with her first child’, and also acknowledged that she' had recently restarted her education — attempting to obtain her GED — but that she had discontinued her education after she suffered complications in her recent pregnancy. See Tr. at 28:8-13 (Court). The Court noted that, after her daughter’s birth, Reyes, began working and continues to work. See Tr. at 28:13-16 (Court). The Court also stated that Reyes has been complying carefully with the conditions of release and that she was making positive choices. See Tr. at 28:16-18 (Court). 'Further, the Court emphasized that this- offense is Reyes’ first contact with the criminal justice system. See Tr. at 28:18-20 (Court). The Court, therefore, concluded that a sentence below the advisory Guideline range is reasonable and sufficient without being greater than necessary to accomplish the sentencing goals that 18 U.S.C. § 3553(a) sets forth. See Tr. at 28:20-25 (Court). The Court noted that, “on or about June 21, 2012, Bernallillo County, New Mexico, the defendant possessed with intent to distribute 500 grams and more of a mixture and substance containing methamphetamine.” Tr. at 29:1-5 (Court).

Accordingly, as to indictment No. CR 12-1695-001 JB, the Court committed Reyes to the Bureau of Prisons’ custody for 30 months. See Tr. at 29: 5-8 (Court). The Court also placed her on supervised release for two years, imposing the standard conditions of supervised release and the following mandatory conditions: (i) the defendant shall not possess a firearm, ammunition, destructive device or any dangerous weapon; and (ii) the defendant shall cooperate in the collection of DNA as directed in the statute. See Tr. at 29:8-15 (Court). The Court also imposed the following special conditions: (i) the defendant must participate in educational or vocational program as approved by the probation officer; this special condition is imposed as it will assist the defendant to develop marketable skills, to gain and maintain employment, and to reintegrate back into society; (ii) the defendant must submit to a search of her person, property or automobile under her control to be conducted in a reasonable manner at a reasonable time for the purpose of detecting illegal substances, weapons or any other contraband at -the direction of the probation officer; (iii) the defendant must inform any residents that the premises may be subject to a search; this special condition is imposed as the defendant was found to be in the possession of illegal substances; (iv) the defendant must participate in and successfully complete an outpatient mental health treatment program approved by the probation officer; the defendant may be required to pay a portion of the cost of this treatment to be determined by the probation officer; this special condition is imposed as the defendant reported having emotional difficulty dealing "with her miscarriage. See Tr. at 29:15-30:14 (Court). Based on Reyes’ lack of financial resources, the Court did not impose a fine. See Tr. at 30:14-16. The Court required, however, the defendant to pay a special assessment of $100.00,‘which was due immediately. See Tr. at 30:16-17 (Court). Upon the Court’s request, neither counsel offered a reason that the Court should not impose the sentence as the Court stated it beyond that which they had already argued. See Tr. at 30:17-23 (Court, Braw-ley, Winterbottom). Accordingly, the Court imposed the sentence. See Tr. at 30:23-25 (Court). After the Court advised Reyes of her appeal rights and Reyes stated that she understood, see Tr. at 30:25-32:6 (Reyes), the Court asked the USPO whether the Phoenix facility was appropriate for Reyes, and the USPO stated that it was. See Tr. at 32:8-11 (Court, Probation Officer). The Court, therefore, stated that it would make that recommendation and that, although it could only recommend to the Bureau of Prisons a particular designation, it had had success with that facility; Reyes understood that the Court could not guarantee that outcome. See Tr. at 32:12-19 (Court).

The Court then asked the parties to discuss voluntary surrender, asking whether it had discretion or whether 18 U.S.C. § 3143(a) limited its discretion; the United States was not sure. See Tr. at 32:20-25 (Court, Brawley). The USPO stated that the statute would allow the Court to release Reyes if it were clearly shown why her detention would not be' appropriate. See Tr. at 33:1-9 (Probation Officer). The Court asked the United States for its thoughts; the United States stated that it was torn between the fact that it might be best for Reyes to start her sentence sooner so it could end sooner and the opposing fact that she had traveled with family— then outside the courtroom — from Arizona. See Tr. at 33:12-20 (Brawley). The Court asked for the applicable legal standard; the USPO said, citing 18 U.S.C. § 3145(c), the issue was whether the United States thinks there are exceptional reasons why Reyes’ detention would not be appropriate. See Tr. at 33:21-34:3 (Court, Probation Officer). The United States suggested that it would not oppose release if the Court were to find exceptional circumstances, and asked the Court to put those circumstances, if any, on the record, and noted its assumption that Reyes’ counsel had explained the consequences of failing to self-surrender to Reyes. See Tr. at 34:5-12 (Brawley). The Court asked for the USPO’s view; the USPO stated that they would not oppose the Court’s conclusion if it found exceptional reasons to allow Reyes to self-surrender, but left the matter to the Court’s discretion. See Tr. at 34:13-20 (Court, Probation Officer). The Court stated that it could find, by clear- and-convincing evidence, that Reyes will not flee, or endanger the safety of other persons or persons in-the community. See Tr. at 34:21-24 (Court). The Court conceded that it had not had a chance to review the Tenth Circuit’s or its cases on this provision, but given the need to decide the issue, the Court found that the fact that Reyes has a new, young child for whom she must care, coupled with her performance, justify the exceptional-circumstances standard. See Tr. at 34:24-35:12 (Court). The Court stated that it would, therefore, find exceptional circumstances present; it noted that it might come to a different decision if it had more time to consider the issue, but given the need to decide the issue immediately, it would make that finding. See Tr. at 35:14-17 (Court). The Court instructed Reyes to arrange for self-surrender. See Tr. at 35:17-20 (Court).

ANALYSIS

The Court does not share Judge Glee-son’s policy disagreement with the drug trafficking Guideline ranges. Given the importance of this issue in the nation’s ongoing debate about drug policy and the importance of the issue to the defense bar generally, the Court will explain at some length why it does not share Judge Glee-son’s views. Most importantly for Reyes, because Court lacks a Kimbrough v. United States disagreement with the Commission’s Guideline ranges for drug trafficking offenses, although the Court varies, it does so for reasons tied to the § 3553(a) factors and not to a policy disagreement with the Guideline ranges.