Jоse Fernandez appeals from a sentence entered in the United States District Court for the Eastern District of New York (Cos-tantino, Judge), following a judgment of conviction on appellant’s plea of guilty to one count of importing more than 500 grams of cocaine. 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(2)(B)(ii); 18 U.S.C. § 2. On appeal, Fernandez raises a number of challenges to the district court’s interpretation and application of the Sentencing Guidelines. Appellant argues that thе district court erred by calculating his sentence under the Guidelines based upon the full quantity of cocaine seized from him, to wit, 25 kilograms, rather than upon the smaller amount, 500 grams, that appellant admitted upon his guilty plea to having imported. Appellant also argues that the government’s attorney and the court wrongly failed to inform him at the time of his guilty plea that the Guidelines sentencing range would be calculated based upon the larger amount of contraband; thus, argues appellant, he was unfairly surprised when it subsequently became apparent that his sentence would be based upon the larger quantity. Finally, appellant urges that the Sentencing Guidelines violate the due process clause because they foreclose individualized sentencing. For the reasons stated below, we affirm.
*1140 BACKGROUND
On December 26, 1987, appellant was arrested in the Customs area at John F. Kennedy International Airport, in Nеw York City, as he arrived from Panama carrying two suitcases found to contain approximately 25 kilograms of cocaine. His co-defendant, Jorge Luis Cole, was also found to be in possession of narcotics and was arrested at the same time. Both Fernandez and Cole were subsequently indicted on the following three counts: (1) conspiring to import, (2) importing, and (3) possessing with intent to distribute, more than 5 kilograms of cocaine.
Although appellant initially pleaded not guilty to the charges against him, he decided thereafter to enter into a plea agreement with the government, which was negotiated by his attorney and the government’s attorney. The government agreed to drop the conspiracy and possession counts in return for the appellant’s plea of guilty to the importation count, which the government agreed to reduce to a charge of importing in excess of 500 grams of cоcaine. This reduction in charges meant that appellant faced substantially lower statutory minimum and maximum sentences than if he had pleaded guilty to the unamended count 2, which charged importation of an amount in excess of five kilograms of cocaine. The government also agreed to ask the sentencing court to depart downward from the applicable Guidelines sentencing range if the appellant cooperated with the government’s investigation.
At a hearing held before Judge Costanti-no on February 24, 1988, the government disclosed the details of the plea agreement. The government then moved, with appellant’s consent, to have the amount set forth in the importation count reduced from 25 kilograms to in excess of 500 grams of cocaine. The district judge granted this request, and then reviewed the plea agreement with the appellant. As part of that review, Judge Costantino made it clear to appellant that, under the amended charge, he would face a minimum prison sentence of five years and a possible maximum prison sentence of forty years.
Before accepting his plea of guilty, the court reviewed the facts of the offense with appellant, as required by Federal Rule of Criminal Procedure 11(f). This review concluded with appellant’s admission that he had knowingly imported 500 grams of narcotics into the United States:
The Court: What did you have in your possession at the airport.
The Defendant: Two suitcases of controlled substance, cocaine.
The Court: So would it be fair to say that you knowingly and intentionally imported the substance into the United States?
The Defendant: Yes.
The Court: And is that your full involvement as far as carrying in 500 grams of cocaine into the United States?
The Defendant: There is no other involvement, no.
Addressing the court in the presence of appellant and his counsel, the government’s attorney noted that the sentence was governed by the Sentencing Guidelines, and that a probation officer would, in his pre-sentence report, calculate the sentence required by the Guidelines. Judge Costanti-no then formally accepted appellant’s plea of guilty, and set a date for sentence.
The presentence report was submitted to the district court approximately two months later. The report calculated the Guidelines sentencing range by using an offense level based upon the full amount of cocaine seized from appellant — approximately 25 kilograms — not the 500 grams specified in the count to which appellant pleaded guilty.
Appellant’s sentence was calculated pursuant to section 2D1.1 of the Guidelines, which governs unlawful trafficking in drugs. Section 2D1.1 sets forth matching hierarchies of offense levels vis-a-vis drugs, with higher offense levels corresponding to larger amounts of contraband.
See
United States Sentencing Commission,
*1141
Guidelines Manual
§ 2D1.1 [hereinafter
Guidelines Manual
], promulgated pursuant to the Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat. 1987 (codified as amended in scattered sections of 18 & 28 U.S.C.). In order to determine the appropriate offense level under section 2D1.1, section 1B1.3 requires that the sentencing court weigh all “acts and omissions that were part of the same course of conduct,” including “quantities and types of drugs not specified in the count of conviction ... if they were part of the samе course of conduct.”
Guidelines Manual, supra,
§ 1B1.3 & background commentary. The offense level relevant to 25 kilograms of cocaine (level 34) was reduced by 2 levels due to appellant’s minor role in the offense, and by another 2 levels due to appellant’s acceptance of responsibility in the offense, resulting in a final offense level of 30.
See id.
§§ 3B1.2, 3E1.1. Appellant had no relevant criminal history, so the Guidelines sentencing range for appellant, at level 30, was 97-121 months.
Id.
ch. 5, pt. A;
see also United States v. Wright,
Despite his apparent surprise at the pre-sentence report’s computation of his sentence, appellant did not move to withdraw his plea. See generally Fed.R.Crim.P. 32(d). Both before and during the sentencing hearing, however, defense counsel vigorously contested the use in the presen-tence report of the full 25 kilograms of cocaine to determine the applicable Guidelines sentence. Had the district court used 500 grams of cocaine as the starting point for calculating the sentence, the applicable offense level would have been 26, see Guidelines Manual, supra, § 2D1.1, and this presumably would have been reduced by the same 4 levels for appellant’s minor role and acceptance of responsibility, leading to a final level of 22, and a sentencing range of 41-51 months, id. ch. 5, pt. A. As the government’s attorney noted, however, the existеnce of the 25 kilograms of cocaine was, in the context of the case as a whole, essentially undisputed. The district judge decided to accept the approach used in the presentence report, noting that the court preferred to “stay within the guidelines.” Granting the government’s subsequent motion to depart downward from the Guidelines because of appellant’s cooperation, Judge Costantino did reduce the sentencе to 80 months, see Guidelines Manual, supra, § 5K1.1, with life supervisory release and a $50. fine.
DISCUSSION
I. Determining the Guidelines Sentencing Range
On appeal, appellant argues that the district court erred in using the full 25 kilograms of cocaine to calculate the offense level (level 34) from which the sentence was ultimately derived. In appellant’s view, only the quantity of 500 grams —the amount he admitted importing— should have been used in calculating the Guidelines sentence. A similar argument, however, has already been rejected by this court.
See United States v. Guerrero,
In
Guerrero
the defendant, as part of a plea аgreement, pleaded guilty to a lesser charge. He claimed on appeal that his Guidelines sentence should have been based upon the offense for which he was charged and convicted (upon the “charge offense,” in other words),
see Guerrero,
The Guidelines adopt a “real offense” approach to those offenses (including drug trafficking) for which the Guidelines list a number of different “offense levels,” or benchmark sentences. For these “multilevel” types of crimes, the Guidelines prescribe higher offense levels for more serious crimes. See, e.g., Guidelines Manual, supra, § 2D1.1 (guideline for drug trafficking offenses).
Once it is evident that a crime comes within one of these “multi-level” categories, the court must select the appropriate offense level
within
that category of offense. To do so, the court must take into consideration all of the acts aided or abetted by the defendant that were a part of the same course of сonduct or common scheme as the offense of conviction.
See id.
§ 1B1.3. Thus, in the case of drug trafficking offenses, under the Guidelines the offense level applicable to the sentence will be based upon the full amount of contraband involved in the offense,
see Paulino,
Citing the Commission’s decision to adopt this type of “real offense” sentencing with respect to drug trafficking offenses, the court in
Guerrero
rejected the claim that the Guidelines sentence in that case should have been based only upon the offense charged, rather than upon the “real offense.”
See Guerrero,
II. Appellant’s Understanding of the Guidelines
Appellant also argues that his sentence must be vacated because, at the time he tendered his plea of guilty, he did not fully understand what his likely sentence would be under the Sentencing Guidelines. Appellant argues on appeal that both he and his counsel assumed that the sentence would be based upon 500 grams of cocaine (the amount specified in the count to which he pleaded guilty), not the full 25 kilograms (the amount seized from appellant), and that the sentence should be vacated because both the prosecutor and the district court failed to explain to him that the Guidelines sentencing range would be based upon the full 25 kilograms.
We rеcognize that a defendant’s guilty plea must be both knowing and voluntary in order to be valid, and that the defendant’s decision to plead must constitute a “deliberate, intelligent choice between available alternatives.”
Rosado v. Civiletti,
No contention is made herein that the district court failed to apprise appellant of the statutory minimum and maximum penalties he faced.
Cf. United States v. Khan,
Appellant’s claim that the government wrongly withheld information fails, however, for it is not the government’s duty “to assist actually and substantially the defendant in deciding whether to plead guilty.”
Cf. Bradbury v. Wainwright,
Appellant also claims that the district court erred in not еxplaining the Guidelines sentencing range to him at the time he offered his plea of guilty. This claim, too, must fail. We recognize that, at bottom, the colloquy required by Rule 11 is meant to ensure that the defendant is “aware of the consequences of his plea.”
See McCarthy v. United States,
Thus, it was enough that the district court herein informed appellant of the minimum and maximum sentences which he faced — Rule 11 required no more. The statutory minimum and maximum sentences for the offense of conviction mark the boundaries within which the Guidelinеs sentence must fall.
See
Weich,
Plea Agreements, Mandatory Minimum Penalties and the Guidelines,
1 Fed.Sent.Rep. 266, 267-69 & n. 2 (1988). The district court was not required to calculate and explain the Guidelines sentence to the appellant before accepting the plea, for, once appellant was informed of the possible consequences enumerated in the Rule — the maximum and the minimum sentences — the requisites of Rule 11 were met,
see Hunter,
As noted, the purpose of Rule 11 is to ensure that a guilty plea represents a voluntary and intelligent choice for the defendant.
See North Carolina v. Alford,
III. The Due Process Challenge to the Guidelines Sentence
Finally, appellant argues that the Sentencing Guidelines are unconstitutional in that they are violative of the due process clause. Relying largely upon the reasoning in
United States v. Bolding,
We note, though — as did the
Vizcaino
court — that courts sentencing under the Guidelines retain an important measure of individualized discretion, under appropriate circumstances, to depart from the sentence mandated by the Guidelines.
See Vizcai-no,
This discretionary power to depart from the Guidelines may be especially important in cases such as this, where the “real offense” elements of the Guidelines sentence threaten to make the widespread practice of plea bargaining unworkable. If, as here, the ultimate sentence will be based upon the total amount of drugs seized rather than upon the amount charged, a criminal defendant is apt to have far less incentive to plead guilty at the outset in return for the prosecutor’s offer to dismiss the more serious charged involving larger amounts of drugs. Rigid adherence to “real offense” sentencing under the Guidelines may undercut this form of plea bar
*1145
gaining (known as “charge bargaining”), since it may have little meaning to a dеfendant that a prosecutor offers to dismiss one or more charges if the likely sentence is based upon the defendant’s real, rather than charged, offenses.
Cf. United States v. Wright,
Moreover, weakening the plea bargaining system would not seem to have been part of Congress’ intent in passing the Sentencing Reform Act. One of Congress’ principal goals in establishing the Sentencing Guidelines was to reduce the sometimes “astounding” disparities that Congress found among sentences in the federal courts,
see
S.Rep. No. 225,
supra,
at 41, disparities that occurred in large part because of the “almost unfettered” sentencing discretion that federal judges had traditionally exercised,
see Mistretta v. United States,
— U.S. -,
Congress’ intent was to create a system of guidelines that would help direct, but not completely take away, judicial discretion in sentencing. Congress’ concern regarding plea bargaining centered on
prosecutors’
discretion in charge bargaining, which it believed if left unchecked would undermine uniformity in sentencing.
See
28 U.S.C. § 994(a)(2)(E) (Supp. IV 1986); S.Rep. No. 225,
supra,
at 63, 167;
Guidelines Manual, supra,
ch. 6, pt. B introductory commentary. In light of the prominent role plea bargaining plays in the United States’ criminal justice system,
see, e.g., Santobello v. New York,
Significantly, the Commission has been careful not to fоreclose broad judicial discretion in plea bargaining situations. In discussing its very limited strictures on plea bargains, the Commission acknowledged that “[bjecause of the difficulty in anticipating problems in this area, and because the sentencing guidelines are themselves to some degree experimental, substantive restrictions on judicial discretion [regarding plea agreements] would be premature at this stage of the Commission’s work.” Guidelines Manual, supra, ch. 6, pt. B introductory comments, at 6.5. Thus, “[w]ith respect to ... plea bargaining, the Commission has basically left the problem, for the present, where it found it.” Breyer, supra, at 31.
Since the Sentencing Commission has not yet fully considered plea bargaining as a factor in shaping the current Guidelines, cf. 18 U.S.C. § 3553(b), it is not startling that a district court presently may depart from a Guidelines sentence in order to give effect to a plea bargain if such a departure is warranted. Congress has cautioned that courts should nоt sanction plea agreements if they will “result in undue leniency or unwarranted sentencing disparities,” S.Rep. No. 225, supra, at 167; see Guidelines Manual, supra, ch. 6, pt. B introductory commentary, but a district court presented with a plea agreement retains discretion to depart so long as the sentence that results reflects the seriousness of the crime and deters future misconduct, see 18 U.S.C. § 3553(a) (Supp. V 1987) (statutory factors to guide sentencing decisions).
District courts still retain broad discretion to deny — as did the district сourt herein — requests to depart from the Guidelines.
*1146
See Paulino,
The judgment of the district court is affirmed.