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James v. United States Parole Commission

November 03, 1998

ERMA J. JAMES, PETITIONER-APPELLANT,
v.
UNITED STATES PAROLE COMMISSION, RESPONDENT-APPELLEE.



Reg. No. 76163-080

Before: Robert R. Beezer, Cynthia Holcomb Hall, and Pamela Ann Rymer, Circuit Judges.

The opinion of the court was delivered by: Hall, Circuit Judge

FOR PUBLICATION

Appeal from the United States Parole Commission

Submitted October 5, 1998* San Francisco, California

Opinion by Judge Hall

SUMMARY

Petitioner Erma J. James challenges the U.S. Parole Commission's decision to deny Ms. James a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. S 3E1.1. Ms. James had been convicted by a Mexican court for smuggling 1.8 kilograms of heroin into that country. She was transferred to the United States pursuant to a prisoner exchange treaty with Mexico, and the Commission calculated her release date pursuant to 18 U.S.C. SS 4106A(a)-(b). We have jurisdiction to review the Commission's determination under 18 U.S.C. S 4106A(b)(2)(A), and we affirm.

I.

On May 18, 1996, Mexican authorities detained petitioner at Benito Juarez International Airport in Mexico City, Mexico as she deplaned from a KLM flight from Amsterdam, Holland. The flight was the final leg of a roundtrip journey from Mexico City to Nairobi, Kenya and back, with stopovers in Amsterdam. The Mexican officers suspected Ms. James of criminal activity in part because she "walked very quickly while looking in various directions," and because the "insoles [of her shoes] were of an unusual shape."

Upon further examination, the Mexican authorities discovered that each of Ms. James' insoles contained a package of what appeared to be heroin. The officers also discovered two similar packages secreted in Ms. James' bra and two packages in her girdle. The combined weight of the packages totaled 1.8 kilograms. The Mexican authorities tried and convicted Ms. James of the illegal importation of an illegal substance (heroin), in violation of Articles 193 and 194 of the Federal Criminal Code and Articles 234, 235, 245, 247, and 248 of the General Health Act.

At Ms. James' trial in Mexico, the arresting officers testified that Ms. James' clothing that contained the heroin was heavier than normal, with the girdle and bra having dark patches sewn on to them. Ms. James testified in her own defense, claiming that she did not know that her clothing contained heroin until the officers cut open the garments with a knife to reveal the contraband. Petitioner stated that four men had approached her on the streets of San Diego, California, and had given her the bra, girdle, and shoes as a gift before she had left the United States. These men had also offered her the airline tickets. Apparently, Ms. James had not previously met these men, but she gratefully accepted their presents, which she understood to be from "1-800 where everything is free . . . even the plane ticket had a special code that read `free of cost.' "

In convicting Ms. James, the Mexican court discounted Ms. James' testimony because:

The defendant's statement lacks credibility and is insufficient to refute the charges. . . . [H]er contention that she did not notice anything abnormal in the garments is successfully refuted by the agents' statements that they all were heavier than normal . . . . [H]er explanation of how she received the tickets and the garments is not believable. ...


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