§246 Drug Offenses “Safety Valve”
(U.S.S.G. §5C1.2)
8th Circuit affirms denial of safety valve where defendant’s debrief was full of inconsistencies. (246) Prior to pleading guilty to drug trafficking, defendant gave an interview to an investigator. His statements had multiple inconsistencies, including his source for the drugs, so the government declined to move for safety valve relief from his ten-year mandatory minimum sentence, under 18 U.S.C. § 3553(f) and guideline § 5C1.2. The Eighth Circuit affirmed, ruling that the district court properly relied on the investigator’s testimony in denying a safety valve reduction. U.S. v. Trujillo-Linares, __ F.4th __ (8th Cir. Dec. 28, 2021) No. 21-1301.
1st Circuit denies safety valve credit for lack of truthfulness. (246) Defendant pleaded guilty to drug conspiracy with a five-year mandatory minimum. The district court found that she was not eligible for the safety valve in 18 U.S.C. § 3553(f)(5) because she did not truthfully provide all information about the offense to which she pleaded guilty. The First Circuit affirmed, rejecting defendant’s attempt to characterize her misstatements as “unimportant blunders.” She also failed to explain the information on her cell phone. U.S. v. Martinez, __ F.4th __ (1st Cir. Aug. 13, 2021) No. 19-1667.
11th Circuit finds defendant’s possession of firearm barred safety valve relief. (246) At sentencing for drug trafficking, the district court denied a two-level “safety valve” reduction under § 5C1.2 because defendant possessed a dangerous weapon during the drug trafficking offense. The Eleventh Circuit held that defendant failed to carry his burden to show that it was “clearly improbable” that the firearm was connected to the drug offense. U.S. v. Carrasquillo, __ F.3d __ (11th Cir. July 14, 2021) No. 19-14143.
8th Circuit affirms denial of “safety valve” for failure to truthfully divulge information about offense. (246) Defendant was convicted of drug trafficking. At sentencing, the district court denied her a two-level decrease in her offense level under § 2D1.1(b)(18), for failure to meet the requirements of the “safety valve” in § 5C1.2. The Eighth Circuit affirmed the district court’s finding that defendant had not “truthfully provided” all information about her offense. She said she was unaware what she was trafficking, but the trial evidence refuted that claim. U.S. v. Hernandez, __ F.3d __ (8th Cir. June 9, 2021) No. 20-1343.
1st Circuit says maritime drug trafficking is not subject to safety valve. (246) Defendant pled guilty to drug trafficking on the high seas, in violation of the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503 & 70506. That offense carries a mandatory minimum. The First Circuit held that the MDLEA is not subject to the “safety valve” in 18 U.S.C. § 3553(f) and guidelines § 5C1.2, because the MDLEA is not a listed offense. U.S. v. De La Cruz, __ F.3d __ (1st Cir. May 26, 2021) No. 18-1710.
9th Circuit finds “and” in safety valve means “and,” contrary to 11th Circuit. (246) A defendant is eligible for the safety valve in 18 U.S.C. § 3553(f), if he does not have “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense . . .” The government argued that the word “and” was disjunctive and therefore defendant’s prior 3-point vandalism conviction made him ineligible for the safety valve. Ninth Circuit held that the “and” in § 3553(f) is conjunctive, rejecting the government’s position and holding that defendant was eligible for the safety valve because he did not meet all three disqualifying criteria. In U.S. v. Garcon, __ F.3d __ (11th Cir. May 18, 2021) No. 19-14650, the Eleventh Circuit reached the opposite conclusion. U.S. v. Lopez, __ F.3d (9th Cir. May 21, 2021) No. 19-50305.
11th Circuit finds “and” in safety valve means “or,” contrary to 9th Circuit. (246) The safety valve in 18 U.S.C. § 3553(f) says a defendant is eligible if he does not have “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense. . . .” The district court interpreted “and” as conjunctive, and found defendant eligible for the safety valve because he did not have a prior violent offense. The government appealed, and the Eleventh Circuit held that the “and” in § 3553(f) is disjunctive and that defendant was not eligible for the safety valve. In U.S. v. Lopez, __ F.3d (9th Cir. May 21, 2021) No. 19-50305, the Ninth Circuit reached the opposite conclusion. U.S. v. Garcon, __ F.3d __ (11th Cir. May 18, 2021) No. 19-14650.
8th Circuit finds gun transaction barred eligibility for safety valve. (246) Defendant pleaded guilty to drug trafficking with a five-year mandatory minimum sentence. He told law enforcement officers about a firearms transaction he had witnessed, and later testified for the defense at the retrial of a defendant for possession of those firearms. At sentencing, the district court found defendant was lying and therefore not eligible for the safety valve. Defendant argued that the firearms transaction was unrelated and should not have been considered. The Eighth Circuit agreed with the district court that the firearms transaction and the drug trafficking were part of a common scheme or plan, and thus he was not eligible for the safety valve. U.S. v. McVay, __ F.3d __ (8th Cir. May 6, 2021) No. 20-1169.
8th Circuit denies safety valve where defendant was not truthful. (246) Defendant arranged a 20-pound methamphetamine deal and pleaded guilty to conspiracy to distribute at least 50 grams of methamphetamine. After her arrest, defendant gave a proffer in which she said the methamphetamine deal was her first involvement in drug trafficking. At sentencing, the government argued that defendant was not eligible for the safety valve because she had lied during her proffer. The undercover agent testified that defendant had acted as if she were running the deal and used coded language in calls to other conspirators. The district court denied safety valve credit under 18 U.S.C. § 3553(f) and § 5C1.2(a), and the Eighth Circuit affirmed, finding it was reasonable for the district court to conclude that defendant was not being honest in her proffer. U.S. v. Rios, __ F.3d __ (8th Cir. Apr. 28, 2021) No. 20-1146.
11th Circuit says safety valve does not apply to Title 46 offenses, so no Fifth Amendment issue. (120)(246) Defendants were convicted at trial of transporting cocaine on the high seas in violation of 46 U.S.C. § 70506. Defendants argued that by forcing them to tell about their offense, the “safety valve” statute violated their Fifth Amendment privilege against self-incrimination. The Eleventh Circuit held that because Title 46 offenses are not eligible for the safety valve, it was unnecessary to address that concern. U.S. v. Cabezas-Montana, __ F.3d __ (11th Cir. Jan. 30, 2020) No. 17-14294.
11th Circuit upholds denying “safety valve” where defendant failed to disclose all drug deliveries. (246) At sentencing for possessing more than 500 grams of methamphetamine with intent to distribute, defendant sought a “safety valve” reduction under §§ 2D1.1(b)(17) and 5C1.2(a), arguing that he had answered all the government’s questions, provided information about the persons with whom he had conspired, and disclosed the identity of another person involved in the drug trafficking even though the government did not ask. The government opposed the reduction with evidence that defendant did not provide complete information about one of his coconspirators and failed to admit that he delivered drugs to the informant even though there was evidence of more deliveries. The district court denied the reduction, and the Eleventh Circuit affirmed. The court found that the government had adequately supported its claim that defendant had not disclosed all of the drug deliveries he made to the informant. U.S. v. Mancilla-Ibarra, __ F.3d __ (11th Cir. Jan. 15, 2020) No. 17-13663.
6th Circuit finds defendant eligible for safety valve despite codefendant’s firearm possession. (246) Defendant was subject to a mandatory minimum drug sentence. The district court found he did not qualify for a reduction under the “safety valve” in § 5C1.2 and 18 U.S.C. § 3553(f), because he possessed a firearm in connection with his offense and because he did not truthfully provide all information about the offense. The Sixth Circuit reversed, holding that the fact that defendant could foresee a codefendant’s possession of a firearm did not preclude application of the “safety valve,” and that defendant’s failure to provide an explanation of a large amount of money found with the drugs in his room did not disqualify him from obtaining a sentence below the mandatory minimum. U.S. v. Barron, __ F.3d __ (6th Cir. Oct. 15, 2019) No. 18-5222.
7th Circuit says judge, not jury, finds facts relating to safety-valve eligibility. (120)(246) Defendant pleaded guilty to drug trafficking. The district court denied a safety-valve reduction from the mandatory five-year minimum sentence because defendant’s DNA was found on a firearm recovered from his residence and therefore defendant was not eligible for the safety valve. On appeal, defendant argued that the Jury Clause of the Sixth Amendment barred the district court from finding that he could not obtain the safety valve because he possessed the firearm in connection with the drug-trafficking offense. The Seventh Circuit held that the Sixth Amendment does not bar judicial fact-finding of safety-valve eligibility. U.S. v. Fincher, __ F.3d __ (7th Cir. July 9, 2019) No. 18-2520.
1st Circuit allows court to withhold safety valve from eligible defendant. (246) Defendant pleaded guilty to drug-trafficking. Although he faced a minimum mandatory sentence of 120 months, he was eligible for the safety valve in 18 U.S.C. § 3553(f). As a result, his sentencing range was 108 to 135 months. Nevertheless, The district court declined to apply the safety valve and instead sentenced him to 135 months. The First Circuit held that it is not unreasonable to sentence a defendant eligible for the safety valve to a sentence above the mandatory minimum. U.S. v. Reyes-Gomez, __ F.3d __ (1st Cir. June 11, 2019) No. 17-1757.
7th Circuit denies safety valve where defendant was not truthful. (246) Law enforcement agents arrested defendant in his car with $40,000. A confidential source said that defendant was going to use the money to buy a kilogram of cocaine. Defendant pleaded guilty to drug trafficking and was subject to a mandatory minimum ten-year sentence. Defendant sought the safety valve in 18 U.S.C § 3553(f). One requirement for the safety valve is that a defendant “truthfully provide” all information about his offense. In a post-arrest interview, defendant said that the $40,000 was to buy a nice car. He denied any intent to purchase cocaine. After an evidentiary hearing, the district court found that defendant had not been truthful and denied a safety valve reduction. The Seventh Circuit held that defendant had not carried his burden of establishing eligibility for the safety valve. U.S. v. Collins, __ F.3d __ (7th Cir. May 14, 2019) No. 18-2149.
11th Circuit says “safety valve’s” exclusion of international drug traffickers does not violate equal protection. (120)(246) Under the “safety valve” in 18 U.S.C. § 3553(f) and § 5C1.2, a defendant convicted of a Title 21 offense can receive a sentence under the mandatory minimum. However, defendant was convicted of drug trafficking in international waters under the Maritime Drug Law Enforcement Act in Title 46, which is not listed in the “safety valve.” Defendant claimed that there was no rational basis to exclude Title 46 defendants from obtaining the safety valve and therefore that exclusion violated the Equal Protection Clause. The Eleventh Circuit found that Congress had legitimate reasons for excluding international drug traffickers from the safety valve and did not violate the Clause. U.S. v. Valois, __ F.3d __ (11th Cir. Feb. 12, 2019) No. 17-13535.
10th Circuit denies safety valve where firearms may have facilitated the offense. (246) When defendant was arrested for drug trafficking in a truck in a rural area, he possessed two loaded firearms which he admitted belonged to him. He was convicted of drug trafficking. At sentencing, the district court found that defendant was not eligible for the safety valve under § 5C1.2 because of the proximity of the firearms and their potential to facilitate the offense. On appeal, the Tenth Circuit affirmed, rejecting defendant’s argument that he did not possess the firearms in connection with the offense. The panel agreed that defendant’s possession of the firearms had the potential to facilitate the offense. U.S. v. Hargrove, __ F.3d __ (10th Cir. Jan. 2, 2019) No. 17-2102.
5th Circuit finds challenge to criminal history is not reviewable as plain error. (246)(870) Defendant was convicted of drug trafficking. For the first time on appeal, he argued that the district court’s improper calculation of his criminal history made him ineligible for a “safety valve” reduction below the mandatory minimum, under 18 U.S.C. § 3553(f). The Fifth Circuit found no plain error, because defendant would not have been eligible for the “safety valve” regardless, because he had a criminal history point for a conviction defendant did not challenge. U.S. v. Cordell, __ F.3d __ (5th Cir. Oct. 19, 2018) No. 17-30937.
5th Circuit holds safety valve does not apply to violations of 46 U.S.C. § 70503. (246) Defendant pleaded guilty to conspiracy to possess cocaine with intent to distribute, while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) & (b) and 21 U.S.C. § 960. The district court denied defendant safety valve relief, finding that the safety valve provision applies only to the five offenses specified in 18 U.S.C. § 3553(f), and 46 U.S.C. § 70503 was not one of those offenses. The Fifth Circuit agreed. As a general matter this court has strictly limited the safety valve’s application to the statutes listed in § 3553(f). Although 21 U.S.C. § 960, which provides the penalties for § 70503, was enumerated in § 3553(f), § 70503 was not an “offense under” § 960; § 960 merely provided the penalties for § 70503. The court relied on U.S. v. Pertuz-Pertuz, 679 F.3d 1327 (11th Cir. 2012); U.S. v. Gamboa-Cardenas, 508 F.3d 491 (9th Cir. 2007) to hold that the safety valve does not apply to violations of § 70503. U.S. v. Anchundia-Espinoza, __ F.3d __ (5th Cir. July 27, 2018) No. 17-40584.
5th Circuit holds that defendant waived safety valve claim. (246)(855) Defendant pled guilty to drug charges. At sentencing, the court noted that without a role enhancement, defendant might be eligible for a safety valve reduction. The government explained that it could not make a safety valve request “right now” because defendant’s debrief had been cut short. The district court asked defendant if he would like more time to possibly qualify for the reduction. After conferring with counsel, defendant declined, and sought, instead, to proceed with sentencing. Defendant acknowledged that this meant that he would not qualify for either a safety-valve reduction or a §5K1.1 downward departure. The district court imposed a within-guideline sentence of 78 months. Nonetheless, defendant argued on appeal that the district court erred by not applying the safety valve reduction under §2D1.1(b)(17). The Fifth Circuit held that defendant waived his claim that court erred by not granting safety valve relief. U.S. v. Rodriguez-De la Fuente, 842 F.3d 371 (5th Cir. 2016).
8th Circuit says facts used to deny safety valve relief need not be proved to jury. (120)(246) The district court found defendant was not eligible for safety valve relief under 18 U.S.C. §3553(f) because he possessed firearms in connection with his drug offense, and therefore the court imposed a mandatory minimum 120-month sentence under 21 U.S.C. §841(b)(1)(A). The Supreme Court in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013), held that any fact that establishes or increases a mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. The Eighth Circuit rejected defendant’s argument that Alleyne requires the government to prove that he possessed a firearm beyond a reasonable doubt. Facts that make a defendant ineligible for the safety valve do not create or increase a mandatory minimum—the safety valve simply allows for relief from a mandatory minimum in certain circumstances. U.S. v. Leanos, __ F.3d __ (8th Cir. July 11, 2016) No. 15-3248.
8th Circuit agrees that defendant possessed firearm and thus was not eligible for safety valve. (246) Defendant pled guilty to drug and firearm charges, and received a mandatory minimum 120-month sentence under 21 U.S.C. §841(B)(1)(A). The Eighth Circuit upheld the district court’s finding that defendant possessed a firearm in connection with the offense, and thus was not eligible for safety valve relief. Officers discovered the firearms in the house with the drugs, and defendant admitted buying one firearm from a drug dealer for personal protection. Defendant stipulated in his plea agreement that he possessed the two firearms and ammunition in the home. Also, he admitted that he purchased one of the firearms from a drug dealer for his own protection. Finally, defendant distributed drugs out of that house. U.S. v. Leanos, __ F.3d __ (8th Cir. July 11, 2016) No. 15-3248.
7th Circuit denies safety valve relief based on defendant’s statements during interview. (246) Defendant was convicted of drug charges and was sentenced to a mandatory minimum 120 months. During a safety valve interview, he claimed that he had never dealt drugs before, but needed money for his catering business, so he helped a confidential informant (the CI) find a supplier. After the interview, the government explained that it did not believe that a newcomer to the drug trade, without a reputation for trustworthiness, could broker a six-kilogram cocaine transaction. The district court refused to grant safety valve relief because it was unpersuaded that defendant spoke truthfully in his interview. The district court pointed to inconsistent and implausible statements, including that defendant did not know that he was aiding in a drug deal when he drove to the CI’s ranch; defendant’s use of a pseudonym when he first contacted the CI; and defendant’s assertion that he had never been a drug dealer before. The Seventh Circuit upheld the denial of safety valve relief, sharing the district court’s disbelief in defendant’s story. U.S. v. Rebolledo-Delgadillo, __ F.3d __ (7th Cir. Apr. 28, 2016) No. 15-2121.
8th Circuit says defendant did not show that she was entitled to safety valve relief. (246) Defendant argued for the first time on appeal that the district court erred in failing to provide her with safety valve relief. The Eighth Circuit found no plain error, ruling that defendant did not meet her burden of establishing that she qualified for safety valve relief. She could not establish that she ever truthfully provided the government with all information she had about the charged offense. Besides a brief interaction with a trooper during a traffic stop when the drugs were found, defendant never provided additional information to the government. Accordingly, district court did not plainly err in failing to grant defendant safety valve relief. U.S. v. Morales, __ F.3d __ (8th Cir. Feb. 10, 2016) No. 15-1630.
3rd Circuit finds ineffective assistance for improper advice about safety valve. (245)(246)(880) Defendant pled guilty to distributing or manufacturing drugs near a school, in violation of 21 U.S.C. § 860(a). He later claimed that he pled guilty because counsel advised him that he was eligible for a reduced sentence pursuant to the “safety valve.” In a pro se habeas petition, defendant argued that his counsel’s erroneous advice about the safety valve constituted ineffective assistance. The Third Circuit agreed. The record clearly indicated that defendant’s counsel provided him with incorrect advice regarding the availability of the safety valve sentencing reduction in 18 U.S.C. § 3553(f). In fact, counsel filed a motion for a reduction, but at sentencing, counsel withdrew this motion, because U.S. v. McQuilkin, 78 F.3d 105 (3d Cir.1996) held that § 3553(f) did not apply to convictions under 21 U.S.C. § 860. Counsel’s lack of familiarity with an 18-year-old precedent and his erroneous advice, demonstrated performance below prevailing professional norms. The plea colloquy did not remedy counsel’s mistake, since the judge made several statements that reinforced counsel’s incorrect advice. Defendant also showed that but for counsel’s error, he would not have pled guilty and insisted on going to trial. U.S. v. Bui, __ F.3d __ (3d Cir. Aug. 4, 2015) No. 11-3795.
7th Circuit denies safety valve relief based on co-conspirators’ gun possession. (246) Defendant received a §2D1.1(b)(1) enhancement based on her co-conspirators’ possession of a firearms. Possession of a firearm generally disqualifies a defendant from safety-valve protection. See §5C1.2(a)(2). Defendant argued for the first time on appeal that her receipt of the firearm enhancement did not disqualify her from receiving safety-valve relief because she neither possessed a gun herself nor induced another to do so. Other circuits have concluded that the scope of the safety-valve’s “no firearms” condition is narrower than the firearms enhancement, and does not impute responsibility for the acts of co-conspirators. Nonetheless, the Seventh Circuit held that the district court’s refusal to grant defendant safety valve relief was not plain error. Defendant raised a question of first impression in the circuit, and courts rarely find plain error on a matter of first impression. Given the lack of guiding circuit precedent, the district court could not be faulted for failing to raise and apply the safety valve sua sponte. U.S. v. Ramirez, __ F.3d __ (7th Cir. Apr. 15, 2015) No. 13-1013.
10th Circuit requires court to consider safety valve information provided for first time on remand. (246) Defendant was convicted of drug charges. He successfully appealed, and the case was remanded for resentencing. At resentencing, the district court denied his request for safety valve protection, holding that 18 U.S.C. §3553(f) did not apply because defendant failed to make the disclosures to support a reduced sentence before his initial sentencing hearing. The Tenth Circuit held that when a defendant provides information to the government for the first time on remand, but before the resentencing hearing, the plain text of §3553(f) requires the district court to consider that information. The district court interpreted the statute’s requirement that the defendant provide information “not later than the time of the sentencing hearing,” to exclude disclosures made before a resentencing hearing. However, this phrase clearly and unambiguously referred to “the sentencing hearing” at issue, whether it was an initial, second, or subsequent sentencing hearing. Nothing in the text of §3553(f)(5) suggested that the phrase, “not later than the time of the sentencing hearing,” should be read to include an extra word—”not later than the time of the initial sentencing hearing.” U.S. v. Figueroa-Labrada, __ F.3d __ (10th Cir. Mar. 24, 2015) No. 13-6278.
7th Circuit denies safety valve relief where defendant did not tell all and threatened informant. (246) Defendant argued that his cooperation with law enforcement after his arrest qualified him for “safety valve” relief from the statutory minimum. See 18 U.S.C. §3553(f); U.S.S.G. §5C1.2. A DEA agent testified that the information defendant provided after his arrest was helpful, and defendant maintained that he had no additional information about the offense. However, the district court found that defendant’s cooperation was not a full and truthful proffer. The Seventh Circuit upheld the denial of safety valve credit, finding the district court gave a nuanced explanation of why it found that defendant not tell all information he knew. Moreover, defendant did not assist the investigation during the two years that passed between his initial post-arrest statements and his sentencing, which undermined his assertion of full, good faith cooperation. There was also evidence that defendant threatened death to the informant and his family, which disqualified him from safety-valve relief. U.S. v. Ortiz, __ F.3d __ (7th Cir. Jan. 12, 2015) No. 13-3748.
1st Circuit says safety valve requirements are mandatory despite Booker. (246) Defendant argued that the district court erred in concluding that it had no authority to sentence him below the mandatory minimum sentence because he did not satisfy all of the safety valve factors in 18 U.S.C. § 3553(f). He argued that because the safety-valve requirements reference the Guidelines and Booker made the Guidelines advisory, then the safety valve requirements were also advisory. The First Circuit noted that this argument has been rejected by all the courts of appeals that have considered it. U.S. v. Zayas, 568 F.3d 43 (1st Cir. 2009).
1st Circuit says prior drug trafficking was relevant conduct or “safety valve” was improper. (246) Defendant pled guilty to conspiring to transport cocaine in two separate criminal cases. One case involved 20 kilos of sham cocaine that defendant received from a cooperating agent. The other case arose from 30 kilos of cocaine that defendant and his crew placed on an airplane bound for New York. He pled guilty and was sentenced first for his role in the sham cocaine smuggling scheme. At the second proceeding, the court declined to consider the sham cocaine as relevant conduct in calculating the total quantity of drugs, and found that he was eligible for the “safety valve” in §5C1.2 as a first offender. The First Circuit reversed, noting that unless the prior sham cocaine offense were included as relevant conduct in the second offense, his prior conviction would count as more than one criminal history point; making him ineligible for the “safety valve.” U.S. v. Jaca-Nazario, 521 F.3d 50 (1st Cir. 2008).
1st Circuit holds that court did not have discretion to reduce criminal history points in order to make defendant eligible for safety value relief. (246) Defendant received a 10-year mandatory minimum sentence following his guilty plea to drug charges, in violation of 21 U.S.C. § 841(a)(1). Defendant contended that his sentence should be vacated because the district court erroneously believed it lacked discretion to qualify defendant for safety valve protection, 18 U.S.C. § 3553(f), by lowering defendant’s criminal history category to I. The First Circuit held that the criminal history calculation for purposes of safety valve eligibility is non-discretionary. The court properly found that it was unable to reduce his criminal history score to make him eligible for safety valve protection. Booker did not change this analysis. As other circuits have held, Booker did not excise and render advisory the requirement of § 3553(f) that a defendant have zero or one criminal history points in order to qualify for safety valve relief. U.S. v. Hunt, 503 F.3d 34 (1st Cir. 2007).
1st Circuit denies safety valve based on testimony of experienced agent that drug smugglers must have been aware of drugs. (246) Defendants were crew members of a boat smuggling drugs into the U.S. The district court refused to grant them safety valve protection. The First Circuit reversed as to the first defendant, since the court failed to make even conclusory statements as to why he did not merit safety-valve relief. At the other two defendants’ joint hearing, however, the court credited the testimony of a special government agent that these defendants had not disclosed everything they knew about the drug smuggling conspiracy. It was “illogical” and “incredible” to believe that an international drug smuggler would place $7.5 million of drugs on a vessel traveling in international waters without having some type of voluntary control over the vessel’s crew. This testimony, based on the agent’s years of experience in the field of drug interdiction, provided a sound grounding for the court’s denial of the safety valve. U.S. v. Bravo, 489 F.3d 1 (1st Cir. 2007).
1st Circuit upholds finding that defendants had not truthfully provided information about offense. (246) The Coast Guard arrested defendants in a fishing vessel containing 5,000 pounds of marijuana. At trial, defendants testified that they had been recruited to participate in a fishing expedition and that when they learned that the boat actually contained marijuana, they were forced at gun point to serve as its crew. A jury rejected this defense and convicted defendants of possession with intent to distribute marijuana and of conspiracy to possess with intent to distribute marijuana. At sentencing, the district court credited the testimony of a federal law enforcement agent that defendants’ story was illogical and incredible. Based on the agent’s testimony, the court found that defendants had not truthfully provided the government with all information concerning the offense and denied them a safety valve reduction. The First Circuit held that the district court did not clearly err in finding that defendants had not met the safety valve requirement that they truthfully provide all information concerning their offense. U.S. v. Bravo, 480 F.3d 88 (1st Cir. 2007).
1st Circuit holds that finding that defendant was eligible for safety valve reduction did not preclude firearm enhancement. (246) The district court applied a two-level sentencing enhancement for firearm possession under § 2D1.1(b)(1), since defendant acknowledged that police had found a loaded handgun in his apartment, and that defendant stated that he bought the gun for personal protection. The court also applied a two-level reduction under the “safety valve” provision of U.S.S.G. § 5C1.2, despite its requirement that the defendant show that he was not in possession of a firearm. The First Circuit found nothing contradictory about applying both the firearm enhancement and the safety valve reduction, since different standards apply for each. The application of the safety valve requires the defendant to establish by a preponderance of the evidence that he did not possess the firearm in connection with the offense. For the firearm enhancement, the government has the initial burden of establishing that a firearm possessed by the defendant was present during the commission of the offense. After that, the burden shifts to defendant to persuade the court that a connection between the weapon and the crime is clearly improbable. Defendant’s failure to meet the higher burden of proof required for the firearm enhancement did not preclude the defendant from meeting the lower burden of proof in the safety valve provision. U.S. v. Anderson, 452 F.3d 87 (1st Cir. 2006).
1st Circuit holds that Booker does not give court authority to disregard criminal history to make defendant eligible for safety valve. (246) Defendant’s plea agreement provided that if defendant met “all” of the requirements of the “safety valve” of U.S.S.G. § 5C1.2, he would receive a two-level reduction under § 2D1.1(b) (6). The First Circuit agreed that defendant was not entitled to safety value relief because he did not meet all of the requirements – he had three criminal history points. The panel rejected defendant’s argument that the court had the discretion to disregard the criminal history computation called for under the guidelines. Even if this argument were not foreclosed by defendant’s stipulation in the plea agreement that his sentence would be determined according to the guidelines, his argument failed as a matter of law because there can be no Booker error where a defendant is sentenced to a statutory minimum based on admitted facts. Booker does not give a court discretion to disregard an otherwise applicable statutory minimum. U.S. v. Narvaez-Rosario, 440 F.3d 50 (1st Cir. 2006).
1st Circuit says finding that defendant did not establish safety valve entitlement was not subject to Booker challenge. (246) The district court found that defendant was not entitled to safety valve protection under 18 U.S.C. § 3553(f) (2) and § 2D1.1(b)(7). Defendant argued that the court violated the Sixth Amendment by crediting evidence that the police found 11 firearms in defendant’s apartment during their execution of a search warrant. The First Circuit held that this safety valve finding need not be decided by a jury or admitted by the defendant under Booker. The burden of proof rests with the defendant to establish an entitlement to safety valve protection. The district court’s finding that defendant failed to establish that he did not possess a firearm in connection with the offense of conviction was not subject to a Booker challenge. U.S. v. Morrisette, 429 F.3d 318 (1st Cir. 2005).
1st Circuit holds that Booker did not entitle defendant to resentencing so that he could comply with safety valve. (246) Defendant sought resentencing on the ground that the Sixth Amendment required the facts determining compliance with the safety valve to be found by a jury rather than by a judge. Because he did not understand that requirement when he decided not to participate in the safety valve regimen, defendant argued that he would have made a different decision if he had known that his entitlement to a sentence reduction would have to be found by a jury by a reasonable doubt. The First Circuit rejected this claim. A change in the law does not warrant vacating a sentence so that the defendant may reconsider his initial decision not to pursue a safety valve reduction, just as a change in the law does not warrant vacating a guilty plea so that the defendant may choose to face trial instead. Defendant was not entitled to resentencing under Booker, because he did not preserve his Booker claim and failed to demonstrate a reasonable probability of a lower sentence under an advisory guideline regime. U.S. v. De Los Santos, 420 F.3d 10 (1st Cir. 2005).
1st Circuit finds insufficient evidence of constructive possession of hidden firearm. (246) The district court found that defendants were ineligible for safety valve protection under § 5C1.2 because they each possessed a .22 caliber handgun during the course of the conspiracy. Defendants argued that proof of actual possession was required to bar application of the safety valve, and even if constructive possession was sufficient, there was inadequate evidence to establish such possession. The First Circuit held that a defendant who has constructively possessed a firearm in connection with a drug trafficking offense is ineligible for the safety valve provisions in § 5C1.2. However, there was insufficient evidence here that two of the defendants constructively possessed the gun. As to the first defendant, he did not stay in the room where the weapon was found. The fact that he was aware that his co-conspirators were interested in 9 mm pistols was not sufficient evidence that defendant knew that his co-conspirators had actually acquired a .22 caliber pistol. Although the second defendant stayed in the room where the gun was found, there was inadequate evidence to infer that he had actual knowledge of the gun. The fact that he participated in drug transactions in his room while the handgun was hidden in the closet was not enough to show knowledge of the hidden gun. U.S. v. McLean, 409 F.3d 492 (1st Cir. 2005).
1st Circuit holds that safety valve amendment could not be applied retroactively. (246) Defendant moved to modify his sentence, arguing that Amendment 640 to the Sentencing Guidelines, effective November 1, 2002, applied retroactively to his case and authorized the court to reduce his sentence by using the safety valve adjustment. The First Circuit held that Amendment 640 was a substantive amendment and therefore, was not to be applied retroactively. The amendment is substantive – its principal effect is to create a new offense level cap for safety valve purposes. The amendment also is not listed in USSG § 1B1.10(c) as one to be given retroactive effect. U.S. v. Cabrera-Polo, 376 F.3d 29 (1st Cir. 2004).
1st Circuit holds safety valve is not barred by weapon enhancement based on co-conspirator liability. (246) Defendant’s offense level was increased under § 2D1.1(b)(1) because “a dangerous weapon … was possessed” during the course of the offense. Under U.S.S.G. § 5C1.2, a defendant is eligible for safety valve reduction if he meets certain criteria, including the requirement that he “did not use violence or credible threats of violence of possess a firearm or other dangerous weapon” in connection with the offense. Five circuits have held that application of § 5C1.2 is not precluded by a weapons possession enhancement based on co-conspirator liability. See, e.g. U.S. v. Penn-Sarabia, 297 F.3d 983 (10th Cir. 2002). The First Circuit agreed that in order for the safety valve to be precluded, a defendant must possess or induce another to possess a firearm in accordance with § 5C1.2(a) (2). Since the basis for the court’s denial of safety valve protection was unclear, the case was remanded for resentencing. U.S. v. Figueroa-Encarnacion, 343 F.3d 23 (1st Cir. 2003).
1st Circuit upholds finding that defendants did not meet information requirement of safety valve. (246) Defendants contended that they met the full disclosure requirement of the safety valve provision, asserting that they had truthfully and completely answered all the questions that the government had asked, and therefore, that the burden had shifted to the government to show that they were ineligible for the safety valve. They further contended that if the government believed that either of them was withholding information, it had a duty to come forward with the basis for that belief so that the affected defendant would have a fair chance to explain away the alleged omission. The First Circuit upheld the court’s finding that defendants did not satisfy the disclosure requirements of the safety valve provision. First, a defendant bears the burden of showing that he made appropriate and timely disclosures to the government. Although defendants insisted they filled any gaps in their original disclosures by their testimony during sentencing, such disclosures must be made by the time the sentencing hearing starts. 18 U.S.C. § 3553(f)(5). Moreover, the provision requires a defendant to be forthcoming. He cannot simply respond to questions while at the same time keeping secret pertinent information that falls beyond the scope of direct interrogation.. Finally, the panel rejected the suggestion that the government acted in bad faith because it would not tell defendants, early on, why it believed that they were not telling the whole truth. “If the government reasonably suspects that the defendant is being devious, it is not obliged to tip its hand as to what other information it may have so that the defendant may shape his disclosures to cover his tracks, minimize his involvement, or protect his confederates.” U.S. v. Matos, 328 F.3d 34 (1st Cir. 2003).
1st Circuit says court was not required to examine applicability of safety-valve before accepting plea. (246) Defendant argued that, pursuant to Rule 11(f), the district court should have inquired into the applicability of the safety-valve provision before accepting his guilty plea. The First Circuit disagreed, and found that the district court’s dialogue satisfied Rule 11(f). Whether or not defendant used or threatened to use a firearm (the conduct which made him ineligible for the safety valve), was not a necessary part of the substantive offense. Although defendant contended that he did not understand at the time of his plea that he could be sentenced beyond the 87-108 month term mentioned in the plea agreement, the agreement stated at the outset that the statutory penalty for Count I was not less than ten years and not more than life, and the court expressly asked defendant whether he understood this penalty. Further, after addressing the sentencing range set forth in the plea agreement, the court inquired if defendant understood that “it’s up to the Judge to decide if that is correct, and it can go up or down, including the ten-year minimum and life sentence.” Again, defendant said he understood. The court did not provide inaccurate sentencing information. Any confusion of defendant about the potential length of his sentence was not the result of having been incorrectly advised by the court during the Rule 11 plea colloquy. U.S. v. Ramirez-Benitez, 292 F.3d 22 (1st Cir. 2002).
1st Circuit says government not required to present rebuttal evidence to undermine defendant’s proffer. (246) The district court refused to grant defendant safety valve protection, finding that he did not “truthfully provide to the Government all information and evidence” he had concerning the offense. Relying on U.S. v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996), defendant argued that to undermine a defendant’s safety valve proffer, the government must affirmatively produce rebuttal evidence, and that here, the government did not do so. The First Circuit held that Miranda-Santiago did not establish this principle. This point was clarified in U.S. v. White, 119 F.3d 70 (1st Cir. 1997), which held that a sentencing court may reject a safety valve proffer based on its reasoned assessment of the defendant’s credibility in light of the facts – and that the court may do so without the benefit of independent rebuttal evidence. Miranda-Santiago stands only for the proposition that when the record, taken as a whole, will not support a finding that the defendant has failed to provide a truthful and complete proffer, the government’s lack of confidence in the proffer is insufficient, in and of itself, to justify the denial of safety valve protection. Here, the government did not simply assert skepticism of defendant’s proffer; it identified specific instances in which the proffer fell short, explained why it did not credit the veracity of defendant’s statement, and pointed out internal inconsistencies. U.S. v. Marquez, 280 F.3d 19 (1st Cir. 2002).
1st Circuit rules defendant had adequate knowledge of safety valve requirements. (246) Defendant’s binding Rule 11(e)(1)(C) plea agreement provided for a 87-month sentence, 33 months below his mandatory minimum sentence. The agreement was conditioned on defendant’s meeting the safety valve criteria in USSG § 5C1.2. In December 1997, the court accepted defendant’s guilty plea. In February 1999, after defendant failed to comply with the safety valve criteria, the court issued an order rejecting the 87-month sentence, stating that defendant was allowed to withdraw his plea. In April 1999, the government filed a motion to sentence defendant in accordance with his plea agreement, even though he had not complied with the safety valve. Four days later, the court “accepted” defendant’s guilty plea (despite having allowed him to withdraw his plea) and indicated its intent to sentence him in accordance with the plea agreement. In August 1999, defendant first notified the court of his desire to withdraw his guilty plea, claiming he did not understand the requirements of the safety valve provision. The district court denied his motion, and sentenced him to 87 months. The First Circuit held that defendant was not entitled to withdraw his plea. The sequence of events made it implausible that defendant did not understand his obligations under the safety valve. At the December 1997 hearing, the court specifically pointed out the provision, and defendant agreed that he understood it. When the court rejected the plea agreement in February 1999 because of noncompliance with the safety valve, defendant did not claim that he did not understand the provision. The panel was troubled by the court’s decision to “accept” a plea that it had previously treated as withdrawn. However, defendant never argued that this procedure was inappropriate. Even if there were plain error, defendant’s substantial rights were not affected. U.S. v. Santiago, 229 F.3d 313 (1st Cir. 2000).
1st Circuit agrees that defendant did not meet information requirement of safety valve. (246) The district court refused to grant defendant safety valve relief because it found that he did not meet the disclosure requirements in 18 U.S.C. § 3553(f)(5) and USSG § 5C1.2(5). At sentencing, the prosecutor advised the court that there had been an aborted proffer session, at which defendant gave an account that the government regarded as “absurd.” Defendant’s attorney said that the proffer session broke down because defendant “said that he was not going to talk about anybody’s activity other than his own and that he did not know the people that were involved because they were much younger than he.” Under either version, defendant never truthfully told the government all he knew about the conspiracy. The district court correctly rejected defendant’s claim that he met the safety valve criteria because the government never requested him to come in and give a truthful proffer. Defendant was given a proffer session and he failed to divulge all the information he possessed concerning the crime. Because defendant did not prove his entitlement to the safety valve reduction, the First Circuit ruled that he was properly sentenced to the statutory mandatory minimum sentence. U.S. v. Richardson, 225 F.3d 46 (1st Cir. 2000).
1st Circuit holds that plea agreement did not bar safety valve relief. (246) The government conceded that defendant met the criteria for safety valve protection under USSG § 5C1.2 and 18 U.S.C. § 3553(f). However, it argued, and the district court agreed, that defendant’s plea agreement barred defendant from receiving safety valve protection. The agreement provided that, aside from those adjustments that were expressly delineated in the agreement, “no further adjustments to the defendant’s total offense level shall be made.” The First Circuit held that the plea agreement did not bar the court from granting safety valve relief. First, the term “adjustments,” when used in the federal sentencing context, does not encompass the safety valve provision. Chapter Three of the Guidelines contains the “adjustments” that may be made in determining a defendant’s adjusted offense level. The safety valve provision is contained in Chapter Five; it is not intended to affect the calculation of the defendant’s offense level per se, but rather, to operate as a limitation on the applicability of mandatory minimum sentences. Moreover, the safety valve, when it applies, is mandatory. Thus, in a non-binding plea agreement, the government cannot contract around the safety valve; the most it can do is attempt to persuade the sentencing court that the provision does not apply. The court erred as a matter of law in not making an independent determination of whether the safety valve applied. U.S. v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000).
1st Circuit rejects safety valve for defendant who denied knowledge of heroin and currency. (246) Defendant arrived at a U.S. airport on a flight from Costa Rica with heroin concealed in the inner lining of his two suitcases. Customs inspectors also found 564 counterfeit 100 dollar bills bundled in defendant’s jeans in the two suitcases. Defendant denied knowledge of the heroin and counterfeit bills. The district court found defendant did not provide “all information and evidence [he had] concerning the offense,” and thus did not qualify for safety valve protection under 18 U.S.C. § 3553(f)(5). The First Circuit found no clear error. “It simply strains the limits of credibility to believe that forces in Colombia, absolutely oblivious to defendant’s final destination, would go to enormous effort to secret well over $2 million dollars worth of heroin in his suitcases and $50,000 in counterfeit currency in his jeans pockets.” At the very least, § 3553(f)(5) required defendant to disclose the identity of the person on whose behalf he was acting. U.S. v. Scharon, 187 F.3d 17 (1st Cir. 1999).
1st Circuit denies safety valve protection where defendant minimized her role in offense. (246) After pleading guilty to drug charges, defendant submitted to three “safety valve” interviews with government agents. The government argued, and the court ultimately found, that defendant was not entitled to safety valve protection because in her interviews she untruthfully minimized her role in the drug conspiracy and disclaimed direct knowledge about the conspiracy. The First Circuit affirmed. The case relied on by defendant, U.S. v. Miranda-Santiago, 96 F.3d 517 (1st Circuit 1996), was distinguishable because in that case the PSR did not support the court’s finding that the defendant had been untruthful. The district court here also did more than simply state it did not believe defendant’s proffer. It made detailed findings regarding defendant’s untruthfulness, and made a carefully considered determination that she lacked credibility. U.S. v. White, 119 F.3d 70 (1st Cir. 1997).
1st Circuit requires government to rebut defendant’s plausible tale to bar “safety valve.” (246) The government had argued that defendant did not qualify for safety valve protection, contending she had not provided full information as required in § 3553(f)(5). The district court, believing that the plea agreement supported the government’s claim, and that the agreement was binding, found defendant did not qualify for safety valve protection. The First Circuit remanded to reconsider whether defendant had fully cooperated. The district court wrongly believed that the agreement was binding. Moreover, defendant’s submission, included as part of her PSR, explained that her involvement in the drug conspiracy was limited—she was a passive participant, knowing only that drugs were stored in the house and doing little to stop it. That characterization was never objected to nor contradicted by the government. The government cannot simply state it does not believe defendant. The government’s theory that defendant must have had more information because she shared living quarters with other co-defendants was insufficient. Mere conjecture based on personal relationships cannot bar application of 18 U.S.C. § 3553(f)(5) and guideline section 5C1.2. U.S. v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996).
1st Circuit says “safety valve” requires giving information to prosecution, not probation office. (246) Defendant argued that his disclosures to the probation office satisfied the requirement of providing information to the “Government” under the “safety valve” provision, § 5C1.2(5) and 18 U.S.C. § 3553(f)(5). The First Circuit held that the “Government” in § 5C1.2(5) and § 3553(f)(5) refers to the prosecuting authority rather than the probation office. Section 5C1.2 is properly understood in conjunction with § 5K1.1, which authorizes downward departures upon the government’s motion. Section 5K1.1’s reference to the government clearly refers to the prosecution, and contemplates the defendant’s providing information useful in criminal prosecutions. The legislative history reinforces the notion that the safety valve requires disclosure of information that would aid prosecutors’ investigative work. U.S. v. Martinez, 83 F.3d 488 (1st Cir. 1996).
1st Circuit refuses to apply “safety valve” amendment retroactively. (246) Defendant pled guilty to drug charges. Since he met all the criteria for the “safety valve” in 18 U.S.C. § 3553(f) and guideline § 5C1.2, the court sentenced him below the applicable mandatory minimum on July 11, 1995. However, defendant sought an additional two levels off, based on an amendment to § 2D1.1(b) that became effective November 1, 1995, after defendant was sentenced. The First Circuit refused to apply the new “two-level” safety valve amendment retroactively because the Sentencing Commission did not list it § 1B1.10 for retroactive application. Although clarifying amendments can be applied retroactively, this was a substantive amendment. U.S. v. Sanchez, 81 F.3d 9 (1st Cir. 1996).
1st Circuit says unwittingly being recorded by government does not satisfy “safety valve’s” information requirement. (246) Under the so-called “safety valve,” defendants can escape the application of a mandatory minimum sentence if they meet certain requirements, including the requirement to truthfully provide to the government all information and evidence they have concerning their offense. Defendant argued that he “provided” such information by unwittingly being record by an undercover agent while discussing his drug distribution plans. The First Circuit held that a defendant has not “provided” information if the sole manner in which the claimed disclosure occurred was through conversations conducted in furtherance of the defendant’s criminal conduct. Congress did not intend the “topsy-turvy” result suggested by defendant. Moreover, defendant did not provide the government with all of the information and evidence he had concerning his offense. For example, in his taped conversations he claimed to have numbers of reliable customers to whom he supplied cocaine, but he did not supply any names to the government. U.S. v. Wrenn, 66 F.3d 1 (1st Cir. 1995).
2nd Circuit says court is not required to consider type of facility in which defendant served youthful offender sentence. (246) Defendant was convicted on drug charges. The district court found that he was subject to a 10-year mandatory minimum under 21 U.S.C. § 841(b)(1) (B) based on a New York youthful offender adjudication for sale of a controlled substance in the fifth degree. Defendant argued that the court erred in concluding that the prior offense was a prior conviction for a “felony drug offense [that] has become final.” He noted that the district court failed to consider whether he served his youthful offender sentence in a juvenile or adult facility, as allegedly required by U.S. v. Sampson, 385 F.3d 183 (2d Cir. 2004). The Second Circuit held that district courts are not required to consider, when deciding whether or not a prior conviction triggers the mandatory minimum provisions of § 841(b), in what type of facility the defendant served his prior sentence. Sampson does not require the district court to decide where a defendant served his youthful offender sentence. The record here did not indicate whether defendant served his sentence in an adult institution, but this did not keep the court from finding that defendant’s youthful offender adjudication was a prior “felony drug offense” under § 841(b). The record showed that defendant was tried and convicted in an adult court of adult drug offenses punishable by imprisonment for more than one year. U.S. v. Jackson, 504 F.3d 250 (2d Cir. 2007).
2nd Circuit holds that post-Booker defendant still has burden to prove entitlement to safety valve. (246) The district court ruled that defendant was not entitled to safety valve relief under U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), finding that defendant did not carry his burden of establishing that he had truthfully disclosed all that he knew concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan. Defendant argued that post-Booker, the burden should be placed on the prosecution to prove untruthfulness beyond a reasonable doubt. The Second Circuit held that Booker did not alter the burden of proof for the safety valve. The fact that mandatory minimums have taken on increased significance after Booker did not undermine the court’s previous decision to place the burden of proof on the defendant to demonstrate his eligibility for the safety valve. U.S. v. Jimenez, 451 F.3d 97 (2d Cir. 2006).
2nd Circuit holds that defendant’s constructive possession of firearms disqualified him from safety valve relief. (246) The district court found that defendant had been jointly responsible for drug stash houses where firearms were kept and exercised personal dominion and control over those weapons. Therefore, the court concluded that defendant did not qualify for safety valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, and was not entitled to a reduction under U.S.S.G. § 2D1.1(b)(9). Defendant argued that his constructive possession of the firearms should not disqualify him from safety valve relief, noting that some circuits have held that a defendant who received a firearm enhancement under § 2D1.1 (b)(1) for possession of a dangerous weapon may still be eligible for safety valve relief, as for example when the enhancement is based on possession by a co-conspirator. The Second Circuit upheld the denial of safety valve relief. The district court did not assume that defendant was ineligible for safety valve relief simply because he received the § 2D1.1(b)(1) enhancement. The district court found that defendant had the firearms within his personal dominion and control, and that defendant’s constructive possession of the weapons based such personal dominion and control not only called for the two-level increase, but also made him ineligible for the safety valve. The panel agreed that possession of a weapon includes constructive possession, at least where the defendant keeps the weapon under his personal dominion and control. U.S. v. Herrera, 446 F.3d 283 (2d Cir. 2006).
2nd Circuit holds that court did not have discretion to award only one criminal history point to make defendant eligible for safety valve. (246) At sentencing, the district court found that defendant had two criminal history points under the Sentencing Guidelines, and thus was ineligible for safety valve relief under 18 U.S.C. § 3553(f). Defendant argued that under U.S. v. Booker, 543 U.S. 220 (2005), the district court should have considered the guidelines advisory for purposes of calculating his criminal history points. The Second Circuit disagreed. Booker did not alter the content of the guidelines or that requirement that guideline results be determined according to the terms of the guidelines. Moreover, there was no basis for considering § 3553(f)(1) as advisory. The court’s denial of safety valve relief did not implicate the Sixth Amendment. U.S. v. Barrero, 425 F.3d 154 (2d Cir. 2005).
2nd Circuit says court erred in granting safety valve to defendant that court found was untruthful. (246) Defendant made some efforts to disclose to the government his knowledge of, and participation in, a drug smuggling operation. However, he was unable to provide a consistent account of his activities, and the court concluded at sentencing that defendant “was incapable of answering questions truthfully and wasn’t telling the truth here [during the sentencing proceeding.]” Given these findings about defendant’s untruthfulness, the Second Circuit held that the district court erred in granting defendant safety valve protection under U.S.S.G. § 5C1.2(a). The district court’s assessment of defendant’s credibility was inconsistent with the fifth safety valve criterion, that the defendant provide complete information about his offense conduct and related activity. U.S. v. Nuzzo, 385 F.3d 109 (2d Cir. 2004).
2nd Circuit holds that court could not disqualify defendant from eligibility for safety valve based on trial perjury. (246) Defendant was convicted following a jury trial of four counts relating to the importation of a shipment of cocaine into the United States. At trial, defendant testified in his own defense and denied any knowledge of the cocaine shipment. After the PSR was prepared, but before sentencing, defendant agreed to provide the government with a full accounting of his role in the crime. As part of his proffer, defendant conceded that he had committed perjury at trial in describing the events leading up to his arrest. The district court denied defendant’s request for safety valve protection, finding that the decision whether to grant safety valve relief was discretionary. Without finding whether or not defendant complied with the statutory criteria, the court indicated that defendant’s commission of perjury at trial was a sufficient reason to deny him safety valve protection. The Second Circuit found no basis for concluding that a defendant’s perjury at trial can disqualify him from safety valve eligibility, where the defendant is otherwise found to meet the statutory criteria for relief. So long as a defendant makes a complete and truthful proffer at the time of the commencement of the sentencing hearing, he complies with the safety valve’s disclosure requirement, even if he earlier lied to the government or obstructed its investigation. Safety valve relief is not discretionary. If the statutory criteria are met, the court is required to disregard any mandatory minimum. U.S. v. Jeffers, 329 F.3d 94 (2d Cir. 2003).
2nd Circuit says court not required to inform defendant of sentencing range with safety valve. (246) Defendant and the government made various sentencing stipulations, including application of the so-called “safety valve” provision, 18 U.S.C. § 3553(f) and USSG § 5C1.2. At the plea allocution, the district court informed defendant that he faced a minimum sentence of ten years and a possible maximum sentence of life imprisonment. The court ultimately adopted the parties’ sentencing stipulations, and imposed a sentence of 70 months. Nonetheless, defendant argued that his plea was invalid because the district court misinformed him of the applicable maximum and mandatory minimum sentences, telling him only about the statutory maximum and minimum without application of the safety valve. The Second Circuit held that the district court was not required to inform defendant of the maximum and minimum sentences he could receive assuming application of the safety valve provision. Rule 11(c)(1) does not obligate a court to calculate and inform the defendant of the applicable guideline sentencing range. See U.S. v. Fernandez, 877 F.2d 1138 (2d Cir. 1989). Moreover, even if the safety valve supercedes the otherwise applicable statutory minimum, a court is not required to inform the defendant of it because at the time of the plea allocution, the safety valve is not yet applicable. A defendant’s qualification for § 3553(f) relief is ascertainable only at sentencing, not at the time the plea is accepted by the court. U.S. v. DeJesus-Abad, 263 F.3d 5 (2d Cir. 2001).
2nd Circuit says that false information does not satisfy safety valve even if defendant believes information is true. (246) The safety valve provision requires the defendant to have “truthfully provided to the Government all information and evidence the defendant has concerning the offense…, but the fact that the defendant has no relevant or useful other information to provide … shall not preclude a determination by the court that the defendant has complied with this requirement.” 18 U.S.C. § 3553(f)(5). See USSG § 5C1.2(5). The Second Circuit held that this provision requires that a defendant prove both that the information he provided to the government was objectively true and that he subjectively believed that such information was true. Dictionaries define the word “truthful” to encompass both a subjective belief in the truth of information conveyed and the conveyance of true information. Thus, the fact that defendant may have subjectively believed the false information she gave to authorities was insufficient to satisfy the safety valve provision. U.S. v. Reynoso, 239 F.3d 143 (2d Cir. 2000).
2nd Circuit agrees that safety valve was irrelevant where court departed under § 5K1.1. (246) Defendant argued that the district court failed to give sufficient reason for granting or denying him safety valve protection, and failed to make a ruling of any kind. The Second Circuit disagreed. Rather, the judge concluded that defendant was eligible for safety valve relief, but found his eligibility irrelevant because the district court’s decision to depart downward under § 5K1.1 gave it the latitude to sentence defendant to the term it deemed appropriate, regardless of the safety valve. This decision was within the district court’s discretion. U.S. v. Champion, 234 F.3d 106 (2d Cir. 2000).
2nd Circuit rejects safety valve for defendant who received gun as collateral for drug debt. (246) Defendant argued that his counsel was ineffective in allowing him to enter a plea agreement that did not grant him safety valve relief. The Second Circuit ruled that defendant was not entitled to safety valve relief because he possessed a weapon “in connection with the offense.” § 5C1.2(2). Defendant received a gun as collateral for a drug debt. The “in connection with” language of § 5C1.2(2) is equivalent to the “in relation to” language of 18 U.S.C. § 924(c)(1), and thus is satisfied “when the government establishes, by a preponderance of the evidence, that the firearm ‘served some purpose with respect to’ the offense.” Here, the firearm served as a form of payment in the drug transaction and thus clearly facilitated the drug conspiracy. The fact that the gun was not used for the protection of defendant’s drug business was irrelevant. Because defendant could not satisfy all of the eligibility requirements of § 5C1.2, defense counsel’s failure to pursue relief under this provision was not ineffective assistance. U.S. v. DeJesus, 219 F.3d 117 (2d Cir. 2000).
2nd Circuit refuses to create fear-of-consequences exception to safety valve’s information requirement. (246) The district court ruled that defendant was not entitled to safety valve relief because he did not satisfy the information requirement in 18 U.S.C. § 3553(f)(5) and USSG § 5C1.2(5). Defendant argued that he should be excused for refusing to give information about a particular co-conspirator in Hong Kong, based on his fear for the safety of his fiancée and family members in Hong Kong. The Second Circuit refused to create a fear-of-consequences exception to the safety valve provision. The statute itself makes no exception because of feared consequences. However, Congress was likely aware that those with knowledge of drug trafficking would have legitimate fear about disclosing what they know. No case has recognized such fear as a permissible basis for withholding information that renders a person eligible for a cooperation departure under § 5K1.1. The Sentencing Commission evidently contemplated that risk of injury to a defendant or his family will not excuse withholding information, because such a risk is explicitly identified as a factor to be considered in determining the extent of a cooperation departure. See § 5K1.1(a)(4). U.S. v. Tang, 214 F.3d 365 (2d Cir. 2000).
2nd Circuit holds that past lies do not disqualify ultimately truthful defendant from safety valve relief. (246) Defendant repeatedly lied to the government about his offense and his participation in it. Shortly before trial, however, defendant submitted to the court two documents which he claimed satisfied the safety valve provision’s information requirement. The district court refused to grant defendant safety valve protection, holding that a defendant who provides untruthful information, and who refuses a subsequent opportunity to make further proffers, need not be given a final opportunity to correct past lies and omissions. The Second Circuit held that defendant’s past lies about the facts of the conspiracy did not render him ineligible as a matter of law for safety valve relief. The deadline for complying with the safety valve’s information requirement is “not later than the time of the sentencing hearing.” The statute provides no basis for distinguishing between defendants who provide only truthful information and those who provide false information before finally telling the truth. The deadline for compliance is the commencement of the sentencing hearing. U.S. v. Schreiber, 191 F.3d 103 (2d Cir. 1999).
2nd Circuit says acceptance reduction did not entitle defendant to safety valve protection. (246) Defendant and two others attempted to sell about 400 grams of heroin to an undercover agent. Defendant claimed that because eligibility for a safety valve reduction and eligibility for an acceptance of responsibility reduction both require a defendant to make truthful disclosures, once the court granted him an acceptance decrease it was impermissible as a matter of law to deny him a safety valve reduction. The Second Circuit disagreed, since the disclosure obligation imposed by the safety valve provision requires more than accepting responsibility for one’s own acts. While § 3E1.1 focuses on the defendant’s acceptance of individual responsibility, § 5C1.2(5) requires the defendant to disclose all he knows concerning both his involvement and that of any co-conspirators. The government’s agreement to the acceptance reduction did not foreclose it from opposing the safety valve reduction. U.S. v. Conde, 178 F.3d 616 (2d Cir. 1999).
2nd Circuit says defendant did not provide safety valve information to government. (246) At sentencing, the government contended that defendant did not qualify for safety valve protection because he did not comply with the fifth criterion, which requires the defendant to disclose all he knows concerning both his involvement and that of any co-conspirators. In response, defendant asserted that he was truthful and forthcoming during his presentence interview with the Probation Department; however, he offered no evidence that he was forthcoming with the government. Nevertheless, the district court, without making any factual findings, found that defendant satisfied the § 5C1.2 criteria and was entitled to a reduction under § 2D1.1(b)(6). The Second Circuit reversed, since the record did not establish that defendant provided the requisite safety valve information to the government. Defendant himself conceded that he did not meet with or speak with anyone from the U.S. Attorney’s office. The government suggested that defendant chose not to speak with any investigatory body so as not to implicate his brother. U.S. v. Smith, 174 F.3d 52 (2d Cir. 1999).
2nd Circuit says court failed to make adequate findings to support safety valve reduction. (246) At sentencing, the government challenged defendant’s ability to satisfy all five safety valve criteria necessary to receive a § 2D1.1(b)(6) reduction. Defendant did provide some information to the government, and the district court applied the § 2D1.1(b)(6) reduction. The Second Circuit remanded because the district court failed to make adequate findings on whether defendant satisfied the information requirement in the safety valve provision. In addition, firearms were found at defendant’s residence, along with the drugs that formed the basis for his offense. Section 5C1.2(2) restricts application of the safety valve provision to defendants who did not possess a gun or other dangerous weapon “in connection with the offense.” The district court failed to address or make factual findings on the government’s claim that defendant was ineligible for safety valve protection because he possessed a firearm in connection with the offense. U.S. v. Smith, 174 F.3d 52 (2d Cir. 1999).
2nd Circuit holds that waiver of appeal barred challenge to safety valve decision. (246) As part of a written plea agreement, defendant agreed not to appeal any sentence within or below the stipulated range of 168-210 months. At sentencing, the court rejected defendant’s request for safety valve protection and imposed a 168-month sentence, the lowest point in the stipulated range. Defendant appealed the court’s refusal to grant him safety valve protection. The Second Circuit ruled that defendant had no right to appeal the court’s denial of a safety valve reduction since he waived his right to appeal any sentence within the stipulated range. Defendant’s 168-month sentence fell within the stipulated range despite the court’s refusal to grant him the benefit of the safety valve provision. U.S. v. Difeaux, 163 F.3d 725 (2d Cir. 1998).
2nd Circuit denies “safety valve” where defendant who did not disclose all of his drug transactions. (246) Defendant pled guilty to various drug-related charges. The Second Circuit upheld the denial of a safety valve reduction because there was ample evidence that defendant did not disclose all the drug transactions in which he was involved. He did not even disclose his involvement in transactions where the government had actually recorded his participation. U.S. v. Hargrett, 156 F.3d 447 (2d Cir. 1998).
2nd Circuit rejects Fifth Amendment challenge to safety valve’s disclosure requirement. (246) Defendant provided information about relevant conduct to the government under a proffer agreement that barred the government from using the information. The district court ruled that to satisfy the information requirements of the safety valve provision, defendant would have to waive the non-disclosure provision of the proffer agreement. Defendant agreed and the court included in defendant’s sentencing calculation 350 grams of cocaine base that he disclosed in the proffer interview. The Second Circuit held that the safety valve’s requirement to admit relevant conduct in order to gain a reduction does not violate the Fifth Amendment. The choice presented to a defendant under § 5C1.2 between a sentence reduction with relief from the mandatory minimum sentence and waiver of Fifth Amendment privileges is analogous to the choice confronting defendants in plea bargain cases. The choice is not likely to prevent a defendant from making a free and rational choice. Moreover, like plea bargains, the purpose of conditioning the safety valve benefit on truthful disclosure of relevant conduct is not to force defendants to waive Fifth Amendment privileges, but to further legitimate government goals. U.S. v. Cruz, 156 F.3d 366 (2d Cir. 1998).
2nd Circuit says expressing willingness to provide information is insufficient for safety valve. (246) Defendant pled guilty to drug charges carrying a mandatory minimum sentence of 10 years. The district court found he did not qualify for the 5C1.2 “safety valve” because, despite his expressed “willingness” to provide information to the government, he had never actually provided any information. The Second Circuit agreed that a mere expression of willingness to provide information does not satisfy the disclosure requirement of the safety valve. Defendant had not even sought a meeting with the government. This was not a case in which there was any possibility of a misunderstanding or a rebuff by the government when defendant sought to provide the requisite information. U.S. v. Ortiz, 136 F.3d 882 (2d Cir. 1997).
2nd Circuit bars “safety valve” where gun is possessed during relevant conduct. (246) Defendant pled guilty to a charge of distribution and possession with intent to distribute heroin. The district court found he was ineligible for safety valve protection because he possessed a firearm in connection with his heroin trafficking activities. Defendant argued that § 3553(f)(2) and § 5C1.2 only bar safety valve protection where the firearm is possessed during the particular offense for which the defendant is convicted. The Second Circuit held that possession of a firearm during relevant conduct bars safety valve protection. Application note 3 to § 5C1.2 defines “offense” as used in subsections (2)-(4) and “offense or offenses that were part of the same course of conduct or common scheme or plan” in subsection (5) to include the offense of conviction and all relevant conduct. Congress surely anticipated that the Sentencing Commission would interpret § 3553 and intended the Commission’s interpretation to control, providing it was consistent with the purposes of the statute. U.S. v. Chen, 127 F.3d 286 (2d Cir. 1997).
2nd Circuit finds counsel not ineffective in failing to delay until safety valve took effect. (246) Counsel’s failure to request an adjournment to allow defendant to receive the benefit of the proposed safety valve provision was also not ineffective assistance. The decision was a reasonable exercise of professional judgment in light of the circumstances. The court had previously expressed a disinclination toward an adjournment based on this possibility. Also, defendant had just testified at a Fatico hearing and the court was disposed to credit his testimony and depart downward. U.S. v. Prince, 110 F.3d 921 (2d Cir. 1997).
2nd Circuit says reduction that refers to safety valve is not limited to mandatory minimum. (246) Section 2D1.1(b)(4) provides for a two level reduction if the defendant’s offense level is greater than 26 and “the defendant meets the criteria set forth in subdivisions (1)‑(5) (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases).” The district court ruled that the § 2D1.1(b)(4) reduction is not available where the defendant is not subject to a statutory mandatory minimum sentence. The Second Circuit ruled that § 2D1.1(b)(4) applies to all defendants, regardless of whether they are subject to a mandatory minimum. The section’s reference to “Limitation on Applicability of Statutory Minimum Sentences” is merely a parenthetical recitation of the title of § 5C1.2. Had the Sentencing Commission intended to limit it to defendants who are subject to a mandatory minimum sentence, it could have done so explicitly. U.S. v. Osei, 107 F.3d 101 (2d Cir. 1997).
2nd Circuit says defendant failed to show he provided all information for “safety valve.” (246) Defendant received a mandatory minimum sentence of 60 months for his role in a conspiracy to distribute 100 or more grams of heroin. He admitted his involvement in certain drug transactions, but claimed to have no involvement in heroin trafficking until late 1992, saying he could not recall the name of his supplier, and refusing to admit any wrongdoing beyond what he testified to at his plea allocution. Without making a clear finding that defendant was untruthful, the district court found that defendant had not satisfied the information requirement of the safety valve provision in 18 U.S.C. § 3553(f) and guideline § 5C1.2. The Second Circuit affirmed, holding that defendant had the burden of proving he provided sufficient information to receive safety valve protection. In light of this burden, the district court properly concluded that defendant failed to show that he provided truthful information to the government. Defendant made no plausible response to the government’s specific allegations. He implausibly claimed that he had no regular heroin supplier and that someone he did not know agreed to sell him $60,000 worth of heroin at a nightclub. He also claimed not to know why a drug dealer regularly beeped his pager. U.S. v. Gambino, 106 F.3d 1105 (2d Cir. 1997).
2nd Circuit rules “safety valve” requires disclosure of all relevant conduct. (246) Defendant received a mandatory minimum sentence of 60 months for his role in a conspiracy to distribute 100 or more grams of heroin. The district court found that defendant had not satisfied the information requirement of the safety valve provision in 18 U.S.C. § 3553(f) and guideline § 5C1.2. Defendant argued that the scope of the government’s questioning at a proffer meeting was too broad, and that he should not have been forced to answer questions that went beyond the offense of conviction. The Second Circuit held that the information requirement of the safety valve requires disclosure of all information regarding the offense of conviction and all relevant conduct. This required defendant to disclose information beyond the conspiracy alleged in the indictment, including related acts of others. The questions defendant complained about, regarding his knowledge of narcotics trafficking at a local pizzeria, properly sought information regarding relevant conduct. U.S. v. Gambino, 106 F.3d 1105 (2d Cir. 1997).
2nd Circuit says “safety valve” does not apply if there is no mandatory minimum. (246) Defendant contended he was entitled to a sentence reduction under the “safety valve,” 18 U.S.C. § 3553(f), which exempts certain defendants from otherwise applicable statutory minimum sentences. The Second Circuit held that § 3553(f) was not applicable since defendant was not subject to a mandatory minimum. Defendant’s claim that § 3553(f) is limited to conspiratorial conduct for which he could be held accountable was frivolous. There is no disparity resulting from the operation of § 3553(f) for defendants whose offenses involve different quantities of drugs. The statute does not authorize the court to sentence a defendant meeting its criteria to a sentence below the guidelines range. U.S. v. Thompson, 76 F.3d 442 (2d Cir. 1996).
2nd Circuit says criminal history departure did not make defendant eligible for “safety valve.” (246) Defendant had four criminal history points. The district court found that this overstated his criminal history, and departed downward from category III to I. Category I is reserved for defendants who have zero or one criminal history points. To be eligible for protection from a mandatory minimum under the so-called safety valve” of 18 U.S.C. § 3553(f), a defendant may not have more than one criminal history point. The Second Circuit ruled that defendant had too many criminal history points to qualify under § 3553(f). Although the judge elected to place defendant in category I rather than III, he nonetheless had four criminal history points and was ineligible for the safety valve provision. U.S. v. Resto, 74 F.3d 22 (2d Cir. 1996).
2nd Circuit holds “safety valve” does not permit departure from guidelines. (246) Defendant argued that she deserved a downward departure from the guidelines sentencing range under the “safety valve” provision, 18 U.S.C. § 3553(f), and guideline section 5C1.2. The Second Circuit held that the statute is limited to departures from statutory minimum sentences, and does not authorize downward departures from the guidelines. In fact, the statute directs that where a defendant meets the listed criteria, the sentencing court should impose a sentence pursuant to the guidelines. [Ed. note: Effective November 1, 1995, the Commission amended § 2D1.1(b) to provide a two level decrease for defendants who qualify for the safety valve, if the base offense level is 26 or greater.] U.S. v. Gaston, 68 F.3d 1466 (2d Cir. 1995).
3rd Circuit holds that Booker did not affect application of safety valve. (246) Defendant did not qualify for safety valve protection because he had more than one criminal history point. See 18 U.S.C. § 3553(f). Defendant argued that the district court should have treated § 3553(f) as advisory because failure to do so violated the Sixth Amendment under U.S. v. Booker, 543 F.3d 220 (2005). The Third Circuit held that Booker did not affect the application of the safety valve provision. Booker is inapplicable to situations in which the judge finds only the fact of the prior conviction. Here, the district court found only that defendant had been sentenced under New Jersey law. This is permitted by Booker. Interpreting § 3553(f) as advisory would effectively excise that section from the statute. In Booker, the Supreme Court considered the constitutionality of the remaining subsection of § 3553, including § 3553(f), and declined to excise any except for § 3553(b)(1). Excising one of the remaining subsections would be inconsistent with Booker. U.S. v. McKoy, 452 F.3d 234 (3d Cir. 2006).
3rd Circuit holds that statutes’ bar against probation applied to defendant, despite eligibility for safety valve protection. (246) Defendant pled guilty to importation of more than 100 grams of heroin, in violation of 21 U.S.C. §§ 952(a) and 960(b)(2), a Class B felony with a five-year mandatory minimum sentence. The district court granted her a downward departure for aberrant behavior, and imposed a sentence of five years’ probation. However, under 18 U.S.C. § 3651(a)(1) a defendant who is found guilty of a class B felony may not be sentenced to a term of probation. In addition, a defendant who is found guilty under § 952 of importing 100 grams or more of a mixture or substance containing heroin cannot be placed on probation. The Third Circuit held that the district court plainly erred in sentencing defendant to probation. Defendant’s eligibility for safety valve protection did not render the prohibitions on probation inapplicable to her. See U.S. v. Green, 105 F.3d 1321 (9th Cir. 1997). The “notwithstanding any other provision of law” language in § 3553(f) of the safety valve statute is tied only to the ability to disregard statutory minimum terms of imprisonment. U.S. v. Dickerson, 381 F.3d 251 (3d Cir. 2004).
3rd Circuit holds defendant may not invoke 5th Amendment and still receive safety valve protection. (246) Defendant requested safety valve protection, notwithstanding his refusal to come forward with “all information and evidence” as required by 18 U.S.C. § 3553(f)(5). He argued that total compliance with the letter of the statute would have placed his family in danger and violated his 5th Amendment rights. The Third Circuit ruled that the safety valve is a denied benefit rather than a penalty, focusing on the lack of true compulsion rather than the benefit versus penalty dichotomy upon which other circuits have dwelled. See, e.g. U.S. v. Arrington, 73 F.3d 144 (7th Cir. 1996). “The choice presented to a defendant under § 5C1.2 between a sentence reduction with relief from the mandatory minimum sentence and waiver of his [right to silence] is analogous to the choice confronting defendants in plea bargain cases.” U.S. v. Warren, 338 F.3d 258 (3d Cir. 2003).
3rd Circuit says criminal history departure cannot make defendant eligible for safety valve. (246) The district court found that Criminal History Category II overstated the seriousness of defendant’s past criminal conduct and departed downward to a Criminal History Category of I. The Third Circuit held that defendant did not qualify for the safety valve provision in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 because he had more than one criminal history point. The commentary to § 5C1.2 defines “more than 1 criminal history point, as determined under the sentencing guidelines” to mean “more than one criminal history point as determined under § 4A1.1 (Criminal History Category).” Thus, the safety valve provision is written in terms of criminal history points, not criminal history category. This definition precludes a court from applying the safety valve provision where a defendant has more than one criminal history point as determined under § 4A1.1, notwithstanding the fact that the court granted a downward departure after finding that the criminal history category was overstated. U.S. v. Boddie, 318 F.3d 491 (3d Cir. 2003).
3rd Circuit says safety valve not relevant where guideline sentence was above mandatory minimum. (246) Defendant was subject to a mandatory minimum sentence of 120 months under 21 U.S.C. § 841(a)(1). The district court determined that defendant’s applicable guideline range was between 108-135 months, and sentenced defendant to 135 months. Since the record showed that this sentence was made with consideration of the entire applicable guideline range and without regard to the statutory mandatory minimum, the Third Circuit refused to review whether defendant was entitled to safety valve protection under § 5C1.2. Even if defendant had been able to show that he met the requirements of the safety valve provision, § 5C1.2 would have been of no help to him. U.S. v. Holman, 168 F.3d 655 (3d Cir. 1999).
3rd Circuit denies safety valve for possessing firearm during prior drug dealing. (246) In September 1994, defendant pled guilty to drug charges. The “safety valve” provision, § 5C1.2, does not apply to defendants who possess a firearm in connection with the “offense.” The Third Circuit held that defendant was properly denied safety valve protection based on his possession of firearm during drug dealing before the instant offense. Note 3 to § 5C1.2 defines “offense” as the offense of conviction and all relevant conduct. Defendant admitted using his two younger brothers in May 1994 to purchase 11 guns for himself and those who worked for him selling drugs. In June 1994, he purchased more guns, and made another attempted purchase in July. This prior conduct satisfied the three part test for “same course of conduct”: defendant regularly dealt drugs, the instant offense was similar to the prior drug dealings, and all of the drug sales took place in the year prior to his arrest. The gun possession was sufficiently connected to the instant offense—the firearms furthered defendant’s drug enterprise, and the firearms transactions resulted from his contact with those he met through his drug enterprise. U.S. v. Wilson, 106 F.3d 1140 (3d Cir. 1997).
3rd Circuit holds “safety valve” does not apply to “schoolyard” statute. (246) Defendant pled guilty to several drug charges, including distributing methamphetamine within 1000 feet of a school in violation of 21 U.S.C. § 860. The district court held that 21 U.S.C. § 860 required a five year mandatory minimum term of imprisonment, and that the “safety valve” provision in 18 U.S.C. § 3553(f) did not apply to a mandatory minimum sentence under § 860. The Third Circuit agreed, noting that by its terms, § 3553(f) applies only to convictions under 21 U.S.C. § 841, 846, 961 and 963. Contrary to defendant’s claims, § 860 is a separate substantive offense and does not merely enhance the penalty for violations of § 841(a) committed within 1000 feet of a school. U.S. v. McQuilkin, 78 F.3d 105 (3d Cir. 1996).
4th Circuit agrees that defendant did not satisfy information requirement of safety valve. (246) Defendants were convicted of drug conspiracy charges stemming from a large indoor marijuana “grow operation” at their home in a rural area of West Virginia. The Fourth Circuit upheld the district court’s finding that defendants did not satisfy the information requirement of 18 U.S.C. § 3553(f), the safety valve provision. The district court found that defendants were not credible witnesses, and that certain representations they made were inconsistent with a full and truthful disclosure of all relevant information. For example, one defendant testified that the $1,800 in cash seized by the authorities came from a rental payment received for leasing their farm equipment. However, other evidence presented by the government showed that the equipment rental was paid for by check, not cash. In addition, the general absence of financial records relating to the $72,000 flowing in and out of their bank accounts during the conspiracy was consistent with cash income based on illegal drug sales. Finally, several items seized during the search of the property, including the triple-beam scales and the large plastic baggies, indicated that defendants were distributing marijuana, and not merely using it as they had claimed. U.S. v. Henry, 673 F.3d 285 (4th Cir. 2012).
4th Circuit finds defendant did not meet information requirement of safety valve. (246) Defendant flew from Ghana to the U.S., and was stopped at the airport, where he admitted that he had ingested heroin. He eventually passed pellets containing 998.4 grams of heroin. He pled guilty to importing heroin. The district court found that defendant had not been truthful and therefore was not eligible for safety valve protection under 18 U.S.C. § 3553(f). The Fourth Circuit affirmed. The evidence provided by defendant did little to further his claim that he was a first-time smuggler, and that his previous international trips were to obtain medical aid. The medical records explained only a few of the “dozens and dozens” of international trips shown on defendant’s passport. The ability of some smugglers to ingest a kilo of narcotics says nothing about the likelihood that a first-time “body packer,” as defendant claimed to be, could ingest such a large quantity. This evidence, at best, might be consistent with defendant’s story, but fell short of proving that defendant provided full and truthful disclosure. Thus, the government had no obligation to present evidence to rebut defendant’s proffer. U.S. v. Aidoo, 670 F. 3d 600 (4th Cir. 2012).
4th Circuit holds that probation officer does not qualify as government for purposes of safety valve proffer. (246) The government conceded that defendant met four of the five criteria for safety valve protection under 18 U.S.C. § 3553(f). The fifth criteria requires a defendant to “truthfully provide[] to the Government all information and evidence the defendant ha[d] concerning the offense …” Defendant argued that “the Government” includes the probation officer to whom he spoke during the presentence investigation, while the government contended that the term refers only to the prosecuting attorney. The Fourth Circuit held that “the Government” as used in § 3553(f)(5) does not include the probation officer who prepares the presentence report. The other uses of the term “the Government” in § 3553 plainly refer to the prosecuting attorney. U.S. v. Wood, 378 F.3d 342 (4th Cir. 2004).
4th Circuit says defendant convicted under schoolyard statute was eligible for safety valve reduction. (246) Defendant pled guilty to aiding and abetting in the distribution of cocaine base within 1000 feet of a school, in violation of 21 U.S.C. § 860. Her guideline sentence was determined by USSG § 2D1.2, which directs a court to use the “offense level from § 2D1.1 applicable to the quantity of controlled substances directly involving a protected location….” Defendant argued that the sentencing court was required to apply § 2D1.1 in its entirely, thus making her eligible for the safety valve reduction under § 2D1.1(b)(6). The Fourth Circuit agreed that § 2D1.2’s cross-reference is to the entire § 2D1.1 offense guideline. Moreover, defendant’s offense of conviction, 21 U.S.C. § 860, did not make her ineligible for the § 2D1.1(b)(6) reduction. Although § 860 is not among the offenses listed in § 5C1.2, the plain language of § 2D1.1(b)(6) merely requires that a defendant meet the criteria found in § 5C1.2(1) through (5); it does not limit the defendant’s eligibility for the reduction based upon the offense of conviction or otherwise state that the defendant must satisfy any of the other requirements found in § 5C1.2. Cases holding that § 860 offenses are ineligible for the safety valve provisions in USSG § 5C1.2 and 18 U.S.C. § 3553(f) are inapplicable to the issue of whether § 860 offenses are eligible for the safety valve provision in § 2D1.1(b)(6). U.S. v. Warnick, 287 F.3d 299 (4th Cir. 2002).
4th Circuit denies “safety valve” credit for failure to prove guns were not connected to drugs. (246) The district court found that defendant was not entitled to a § 2D1.1(b)(4) “safety valve” reduction because he did not show that his firearms were not possessed in connection with the drug conspiracy. Defendant admitted possessing two firearms during the time he was selling crack, but he claimed they were kept at his house for protection purposes only. The Fourth Circuit held that defendant failed to prove that the guns were not possessed in connection with the conspiracy. The fact that his co-conspirators possessed weapons did not disqualify him, because the commentary to § 5C1.2(2) makes it clear that a defendant is accountable only for his own conduct and conduct he aided and abetted. But the court did not believe defendant’s claim that he possessed the guns only for his personal protection. Defendant purchased the gun when he began his drug activities. Also, he stored the proceeds from his drug sales in his home where he kept the firearms. U.S. v. Wilson, 114 F.3d 429 (4th Cir. 1997).
4th Circuit holds defendant did not satisfy safety valve’s information requirement. (246) Defendant was subject to a 10‑year mandatory minimum sentence for importing more than one kilogram of heroin. The district court found defendant eligible for “safety valve” protection under 18 U.S.C. § 3553(f). The Fourth Circuit reversed, holding that defendant did not satisfy the information requirement in § 3553(f)(5). Defendant rebuffed the efforts of the government to gain her assistance. Furthermore, she continued to deny her culpability throughout trial and before the appellate court. This Circuit requires defendants to accept responsibility for their actions before they may qualify for safety valve protection. U.S. v. Withers, 100 F.3d 1142 (4th Cir. 1996).
4th Circuit holds failure to debrief defendant breached plea bargain in light of safety valve. (246) Defendant’s plea agreement provided that the government would recommend a sentence at the low end of the guideline range if defendant, upon debriefing by government agents, was completely truthful and forthright regarding the charged offense. The government failed to debrief defendant prior to his sentencing. The Fourth Circuit held that the government breached defendant’s plea agreement by failing to debrief him before sentencing. The government did not satisfy its obligation by recommending the statutory minimum 120-month sentence. Debriefing is a valuable benefit to a defendant who is seeking to qualify for application of the safety valve provision in 18 U.S.C. § 3553(f) and guideline § 5C1.2. Defendant satisfied four of the five requirements for safety valve protection. The district court found that defendant did not satisfy the requirement of truthfully disclosing all of the information and evidence he had to the government. If the provision had been applied to defendant, his guideline range would have been lowered to 108-135 months. U.S. v. Beltran-Ortiz, 91 F.3d 665 (4th Cir. 1996).
4th Circuit says “safety valve” defendants must take affirmative steps to provide information. (246) Defendant received a five year mandatory minimum sentence for his role in a marijuana conspiracy. The district court found that defendant did not qualify for “safety valve” protection from the mandatory minimum because he did not provide the government with any truthful information concerning his crime. Defendant argued that he was entitled to a departure because he would have provided the government with truthful information he had been asked. The Fourth Circuit held that the “safety valve” requires defendants to demonstrate, through affirmative conduct, that they have supplied truthful information to the government. Even if the information provided is of no use to the government, the court may depart downward if all other requirements of § 3553(f) are satisfied. Judge Hall dissented. U.S. v. Ivester, 75 F.3d 182 (4th Cir. 1996).
4th Circuit denies safety valve protection to defendant who committed perjury at trial. (246) Defendant argued that the “safety valve” in 18 U.S.C. § 3553(f) and guideline § 5C1.2 applied to him. The Fourth Circuit disagreed, given defendant’s perjury at trial. The district court denied defendant a § 3E1.1(a) reduction because he lied at trial by fabricating an alibi. In light of this ruling, it was logical to assume that the judge also determined that defendant failed to comply with the fifth condition in § 3553(f), i.e., that the defendant truthfully provide to the government all information and evidence he has concerning the offense and others related to it. U.S. v. Fletcher, 74 F.3d 49 (4th Cir. 1996).
5th Circuit holds Alleyne did not preclude judicial fact-finding about “safety valve.” (246) Defen-dant pled guilty to drug charges. He argued that the fail¬ure to apply the safety valve provision under 18 U.S.C. §3553(f) violated Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013), because a judge rather than a jury found a fact that precluded its application to him (posses¬sion of a firearm in connection with the offense). The Eighth Cir¬cuit ruled that Alleyne was inapplicable. Alleyne held that any fact that increases a statutory mandatory minimum sentence must be found by a jury beyond a reasonable doubt. In contrast, the safety valve statute provides that a defendant who qualifies for the safety valve shall be sentenced without regard to a statutory mandatory minimum sentence. 18 U.S.C. §3553(f). That is, the safety valve does not increase the mandatory minimum; instead, it removes it. U.S. v. King, __ F.3d __ (5th Cir. Dec. 4, 2014) No. 14-10146.
5th Circuit holds 2002 guidelines did not permit criminal history departures to create eligibility for safety valve. (246) The PSR concluded that defendant was not eligible for safety valve protection because he had more than one criminal history point. However, the district court made a downward criminal history departure under § 4A1.3. It then found that the 2002 guidelines were ambiguous about whether § 4A1.3 departures could be considered when evaluating safety valve eligibility. The court found that lenity required defendant to be sentenced pursuant to the safety valve provision. The government argued that the district court should have considered the later-enacted § 4A1.3(b) (3)(B), which provides that criminal history departures are not to be considered when evaluating safety valve eligibility. The Fifth Circuit held the court erred in sentencing defendant below the mandatory minimum. Amendment 651, which implemented § 4A1.3(b) (3)(B), was a substantive, not a clarifying amendment, and was not retroactive. However, the district court erred in ruling that the 2002 Guidelines were ambiguous as to whether downward criminal history departures could be considered when evaluating safety valve eligibility. U.S. v. Solis, 675 F.3d 795 (5th Cir. 2012).
5th Circuit denies “safety valve” where defendant failed to show that he truthfully provided all information. (246) Defendant drove a tractor-trailer full of marijuana from Mexico into the United States. He was arrested at a checkpoint after a drug detection dog alerted border patrol agents to the presence of drugs. He argued that the judge erroneously denied him a “safety valve” reduction for truthfully providing all relevant information regarding the offense to the government. See 18 U.S.C. § 553(f); U.S.S.G. § 5C1.2(a)(5). Defendant had simultaneously argued that there was insufficient evidence to convict him, while also arguing that he gave all the information he had regarding the offense. The Fifth Circuit found these arguments incompatible. The jury’s finding of guilt diminished defendant’s argument that he was completely truthful to the government, and undercut his claim for the safety valve reduction. The burden was on defendant to prove his eligibility for the reduction, and he failed to meet that burden. U.S. v. Moreno-Gonzalez, 662 F.3d 369 (5th Cir. 2011).
5th Circuit denies safety valve where defendant failed to show that she was not completely truthful. (246) Defendant worked as a medical assistant in a private medical practice that fraudulently obtained large amounts of hydrocodone. Defendant challenged the district court’s refusal to grant her safety valve protection. The Fifth Circuit ruled that defendant failed to meet her burden of showing that the district court erred. The government had argued that defendant failed to truthfully debrief regarding several specific instances. For example, she denied selling hydrocodone to Jacobe, but Jacobe testified to the contrary at trial. The government also noted that defendant was less than completely truthful about when she stopped working for the doctor. Moreover, while defendant claimed she only acted pursuant to the doctor’s direction, the evidence only partially supported this contention. Defendant failed to rebut these contentions and relied on the simple response that she “truthfully disclosed all the information she had concerning the offense” and “accepted responsibility for her conduct” by pleading guilty. U.S. v. McElwee, 646 F.3d 328 (5th Cir. 2011).
5th Circuit says defendant cannot be made eligible for safety valve by reducing criminal history. (246) The PSR noted that defendant had two criminal history points, and concluded that he was not eligible for safety valve relief from the ten-year mandatory minimum. See 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The district court, however, found that defendant’s criminal history was overrepresented, and reduced his two criminal history points to one. The court later sentenced defendant to 70 months in prison, opining that the minimum sentence was “unjust.” The Fifth Circuit held that defendant’s two criminal history points made him ineligible for safety valve relief, and the district court had no discretion to sentence him below the mandatory minimum. Amendments to § 5C1.2(a) make clear that a defendant cannot have more than one criminal history point “as determined under the sentencing guidelines before application of subsection of 4A1.3″ The district court lacked authority to apply the safety valve based on its finding that his criminal history overstated the seriousness of his past criminal conduct. U.S. v. Jasso, 634 F.3d 305 (5th Cir. 2011).
5th Circuit holds that constructive possession of firearm disqualified defendant from safety valve protection. (246) Defendant pled guilty to cocaine conspiracy charges. Authorities searching the conspiracy’s primary stash house seized an assault rifle and ammunition, which were in plain view in an open bedroom closet. The leader of the conspiracy told the agents that the rifle was kept at the stash house for the protection of his workers, including defendant, and to protect the drugs. In order to be eligible safety valve relief under U.S.S.G. § 5C1.2, a defendant cannot have “possess[ed] a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.” The Fifth Circuit held that “possession” of a firearm for safety valve disqualification purposes includes both actual and constructive possession of firearms. The case relied on by defendant, U.S. v. Wilson, 105 F.3d 219 (5th Cir. 1997), held that a defendant should not be denied safety valve protection because a co-conspirator possessed a firearm. However, there is a significant different between co-conspirator liability and constructive possession. For a defendant to have constructive possession of a firearm, the defendant himself must have ownership, dominion, or control over the firearm, or dominion or control over the premises in which the firearm is concealed. U.S. v. Matias, 465 F.3d 169 (5th Cir. 2006).
5th Circuit upholds denial of safety valve relief to defendant who did not provide sufficient information. (246) The district court rejected defendant’s request for safety valve protection, finding that he had not satisfied the fifth criteria of the safety valve provision, § 5C1.2(a)(5). That provision requires that “not later than the time of the sentencing hearing, the defendant … truthfully provide[] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or a common scheme or plan” The court here went to great lengths to determine whether defendant had provided the information and evidence required by § 5C1.2(a)(5), even continuing sentencing to gather more information. Most importantly, the parties stipulated on the second day of sentencing that defendant had not provided the government with “all information or evidence regarding [defendant’s] methamphetamine production/ distribution.” U.S. v. Treft, 447 F.3d 421 (5th Cir. 2006).
5th Circuit holds that court had no authority to depart from statutory minimum sentence. (246) The district court found that defendant was responsible for a quantity of cocaine in excess of the 50 grams required to trigger a 10-year statutory minimum sentence, and that no legal basis existed for a downward departure. The court nonetheless refused to impose that sentence, citing U.S.S.G. § 5K2.0 and Koon v. U.S., 518 F.3d 81 (1996). The Fifth Circuit joined all other circuits that have addressed this issue to conclude that the procedures set forth in 18 U.S.C. § 3553(e) and § 3553(f) are the exclusive routes to depart below a statutory minimum sentence. Thus, a district court may impose a sentence below a statutory minimum for a drug crime only if (1) the government makes a motion pursuant to § 3553(e) asserting the defendant’s substantial assistance to the government; or (2) the defendant meets the “safety valve” criteria set forth in § 3553(f). Here, the government did not move for a substantial assistance departure, and defendant did not challenge the constitutionality of the government’s failure to so move. Moreover, the safety valve provision was inapplicable here because defendant was convicted of under 18 U.S.C. § 860, which is not listed under the safety valve provision. U.S. v. Phillips, 382 F.3d 489 (5th Cir. 2004).
5th Circuit finds no ineffective assistance where defendant not eligible for safety valve protection. (246) Defendant filed a petition under 28 U.S.C. § 2255, claiming that his attorney was deficient by failing to inform defendant about the 10-year mandatory minimum for his crime. He argued that, prior to trial, his attorney assured him that he would receive at most four to five years in prison, and that if his attorney had properly advised him, he would have pled guilty instead of standing trial. The Fifth Circuit found no ineffective assistance, because defendant could not demonstrate that he was prejudiced by his counsel’s allegedly deficient performance. The prosecutor made clear that she would only have permitted defendant to plead to the indictment. As a result, even if he had pled guilty, defendant would still have faced the ten-year mandatory minimum sentence. Defendant could only demonstrate prejudice if he could prove that the sentencing court could and would have departed below the statutory minimum sentence. However, defendant was not eligible for safety valve protection under U.S.S.G. § 5C1.2. The district court found in light of defendant’s alleged memory problems, he lacked credibility, and thus could not have satisfied the requirement in § 5C1.2 that he testify “truthfully.” U.S. v. Ridgeway, 321 F.3d 512 (5th Cir. 2003), abrogation on other grounds recognized by U.S. v. Grammas, 376 F.3d 433 (5th Cir. 2004).
5th Circuit holds that safety valve information must be given by commencement of sentencing hearing. (246) At sentencing, defendant continued to deny his involvement in the offense of conviction. After the judge repeatedly warned defendant that refusal to accept responsibility would result in an extended sentence, defendant finally admitted his guilt. The judge then ordered a recess so that defendant could meet with a DEA agent. After the recess, the court questioned the agent and found that defendant provided sufficient information to qualify for safety valve protection under 18 U.S.C. § 3553(f) and USSG § 5C1.2. The safety valve requires the defendant to provide information to the government “not later than the time of the sentencing hearing.” 18 U.S.C. § 3553(f)(5). The Fifth Circuit held that a defendant must disclose information by the time of the commencement of the sentencing hearing in order to qualify for safety valve relief. Defendant’s cooperation during the sentencing hearing was not sufficient and the district court erred as a matter of law in concluding that defendant qualified for safety valve protection. U.S. v. Brenes, 250 F.3d 290 (5th Cir. 2001).
5th Circuit reconsiders and says no substantial assistance departures without government motion. (246) Before defendant’s sentencing, the government said it would not move for a substantial assistance departure. The court purported to make a five-level downward departure under § 5C1.2, stating that it appeared defendant provided substantial assistance. The Fifth Circuit held that § 5C1.2 was not applicable to defendant because his guideline range was higher than the applicable mandatory minimum sentence. In addition, the Fifth Circuit vacated its earlier opinion at 161 F.3d 281 (5th Cir. 1998), which held that a district court can depart under § 5K2.0 based on a defendant’s substantial assistance, even in the absence of a government motion. Instead, the court held that a district court has no more authority to depart for substantial assistance under § 5K2.0 than it has under § 5K1.1. The court was persuaded by the Third Circuit’s opinion in U.S. v. Abuhouran, 161 F.3d 206 (3d Cir. 1998) that a court may only depart under § 5K2.0 based on substantial assistance in those cases where § 5K1.1 permits a departure without a government motion — where the government has improperly refused to make a motion, either because it has an unconstitutional motive or because it has acted in bad faith. U.S. v. Solis, 169 F.3d 224 (5th Cir. 1999).
5th Circuit uses firearm enhancement in drug guideline to interpret safety valve. (246) Arresting officers discovered marijuana at defendant’s home and two guns at his business. The court found that § 5C1.2, the safety valve provision, was not applicable because defendant possessed a gun in connection with the drug offense. The Fifth Circuit held that defendant was not entitled to safety valve protection because he did not prove that he did not possess a gun in connection with the drug conspiracy. Despite obvious differences in their language, the analysis of whether there is a sufficient nexus between a possessed gun and the offense is the same under both § 5C1.2(2) and § 2D1.1(b)(1). However, in contrast to § 2D1.1, the defendant has the burden of proving that he qualifies for sentencing under § 5C1.2. Defendant thus had to show by a preponderance of the evidence that he did not possess a gun in connection with the drug conspiracy. Defendant failed to meet this burden. He used his business to store drugs and drug proceeds. He sent the drug proceeds to his suppliers in Texas using his business as a return address on the packages. The court found it clearly probable that defendant possessed the guns to protect the money derived from the drug trafficking conspiracy. U.S. v. Vasquez, 161 F.3d 909 (5th Cir. 1998).
5th Circuit holds failure to apply 2-level safety valve was plain error but did not affect substantial rights. (246) Defendant pled guilty to drug conspiracy charges. He had an offense level of 33 and a criminal history category of I, but was subject to a ten-year mandatory minimum sentence. The district court granted the government’s motion for a one-level departure under § 5K1.1and an additional one-level “safety valve” departure under 18 U.S.C. § 3553(f). The court sentenced defendant to 108 months. For the first time on appeal, defendant argued that the district court should also have reduced his sentence by two levels for the separate “safety valve” in § 2D1.1(b)(4). This would have reduced his offense level to 30 with a guideline range of 97-121 months. The Fifth Circuit held that the district court plainly erred in not granting defendant the § 2D1.1(b)(4) “safety valve” reduction, because it is mandatory, not discretionary. However, the error did not affect his substantial rights because his 108-month sentence was within the 97-121 month range he would have received with the reduction. U.S. v. Leonard, 157 F.3d 343 (5th Cir. 1998).
5th Circuit says Commission properly chose not to make safety valve reduction retroactive. (246) Defendant pled guilty to drug charges. In August 1995, the district court sentenced him under the safety valve provision to a term that was ten months less than the otherwise applicable mandatory minimum. At the time of sentencing, the Sentencing Commission had proposed § 2D1.1(b)(4), which provided for a two-level reduction for defendants who met the safety valve criteria. The guideline became effective in November 1995. The Fifth Circuit rejected defendant’s argument that the Sentencing Commission should have made § 2D1.1(b)(4) retroactive. There was nothing to suggest that Congress wanted this guideline to take effect on the effective date of the safety valve statute in 1994. Section 2D1.1(b)(4) was passed under the authority of the safety valve legislation, but it was unnecessary to its basic objective. The Sentencing Commission was entitled to choose not to make this guideline retroactive under § 1B1.10. U.S. v. Flores-Ochoa, 139 F.3d 1022 (5th Cir. 1998).
5th Circuit says failure to seek continuance was not ineffective assistance. (246) Defendant pled guilty to drug charges. In August 1995, the district court sentenced him under the safety valve provision to a term that was ten months less than the otherwise applicable mandatory minimum. At the time of sentencing, the Sentencing Commission had proposed § 2D1.1(b)(4), which provided for a two level reduction for defendants who met the safety valve criteria. The guideline became effective on November 1, 1995. If defendant had been sentenced when § 2D1.1(b)(4) was in effect, he would have qualified for the reduction. The Fifth Circuit rejected defendant’s claim that his counsel was ineffective for failing to seek a continuance so that defendant could be sentenced after § 2D1.1(b)(4) took effect. Defendant could not show prejudice. Even if counsel acted improperly by failing to request a continuance, there was no evidence that the court would have granted the motion. Moreover, defendant’s theory would require attorneys to move for continuances in a substantial number of cases scheduled for sentencing between May and November, if a proposed guideline might affect the result. U.S. v. Flores-Ochoa, 139 F.3d 1022 (5th Cir. 1998).
5th Circuit upholds denial of safety valve protection. (246) The district court found that defendant did not give the government all information and evidence he possessed concerning the offense, as required to receive safety valve protection. The Fifth Circuit upheld the denial of safety valve protection. Defendant refused to discuss the facts of the case with the probation officer and would not share any information from his history in the drug trade. The information requirement did not violate defendant’s 5th Amendment rights. Although a defendant may receive a more lenient sentence by fully cooperating with the government, she is not compelled to so do. U.S. v. Torres, 114 F.3d 520 (5th Cir. 1997).
5th Circuit holds co‑conspirator’s firearm does not bar applying safety valve. (246) Defendant pled guilty to drug and firearms charges. The district court ruled that because of a co‑conspirator’s use of a firearm in the conspiracy, defendant was ineligible for safety valve protection under § 5C1.2. The Fifth Circuit disagreed, holding that a co‑conspirator’s firearm possession does not bar safety valve protection. The commentary provides that the use of the word “defendant” in § 5C1.2(2) “limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured or willfully caused.” This language mirrors the “relevant conduct” section, 1B1.3(a)(1)(A). However, it omits the broader language of § 1B1.3(a)(1)(B), which encompasses acts and omissions in a “jointly undertaken criminal activity.” U.S. v. Wilson, 105 F.3d 219 (5th Cir. 1997).
5th Circuit upholds constitutionality of information requirement in “safety valve.” (246) Defendant was arrested at the airport carrying 1339.5 grams of methamphetamine. The district court denied defendant “safety valve” protection under § 5C1.2 because defendant did not identify the other participants in the methamphetamine operation. She argued that § 5C1.2(5) was unconstitutional because it would force her to subject herself and her family to violent retaliation by the people she was required to identify, and would force her to work as a government informant. The Fifth Circuit upheld the constitutionality of the information requirement in the safety valve amendment. The fact that a more lenient sentence is imposed on a defendant who gives authorities all of the information she possesses does not compel a defendant to risk her family’s lives or to work for the government. Defendant can refuse the option and receive the statutory sentence under the regular sentencing scheme. U.S. v. Stewart, 93 F.3d 189 (5th Cir. 1996).
5th Circuit holds that court erred in failing to consider applicability of safety valve protection. (246) Defendant argued that the district court erred in failing to consider whether he was eligible for safety valve protection under § 5C1.2. The Fifth Circuit agreed that the court mistakenly believed it was bound by the mandatory minimum without first considering whether defendant qualified for the safety valve protection. There was no indication in the record that defendant failed to meet any of the five § 5C1.2 criteria. U.S. v. Flanagan, 87 F.3d 121 (5th Cir. 1996).
5th Circuit allows court to withdraw leadership finding to permit defendant to qualify for “safety valve.” (246) The district court originally found defendant was a leader of a drug conspiracy. Because the amount of drugs involved was incorrectly determined, the appellate court remanded for resentencing. By the time of resentencing, Congress had enacted the “safety valve” provision allowing a sentence below a mandatory minimum for defendants who meet five requirements. One requirement is that the defendant cannot be a leader. The district court withdrew its previous finding that defendant was a leader so he could qualify for the safety valve. The court explained that it had found defendant was a leader to establish a disparity in culpability between defendant and a co‑defendant, but it did not intend to establish a 500 percent disparity. The Fifth Circuit affirmed because the remand was a general remand, and any findings previously made were not binding. A defendant’s relative culpability is relevant to the application of the safety valve provision. U.S. v. Flanagan, 80 F.3d 143 (5th Cir. 1996).
5th Circuit says defendant has burden to provide “safety valve” information to government. (246) The government argued that defendant’s failure to provide any information to the government precluded the application of the “safety valve,” 18 U.S.C. § 3553(f) and guideline § 5C1.2. The district court applied the provision, stating that the government “can’t complain about his lack of answering questions if [it does not] ask him the questions.” The Fifth Circuit held that the defendant has the burden of ensuring that he has provided all the information regarding the offense to the government. He must do this by the time of sentencing regardless of whether the government asks for it. The district court erroneously placed the burden on the government. On remand, if the court finds that defendant failed to provide the government with all information, it shall allow him to comply with the provision. U.S. v. Flanagan, 80 F.3d 143 (5th Cir. 1996).
5th Circuit denies “safety valve” protection to defendant who lied about drug quantity. (246) Defendant testified that he received 10 ounces of methamphetamine. Three informants contradicted this testimony, stating that the bag contained at least one pound. The district court held defendant accountable for one pound, crediting the informants’ reports over defendant’s testimony. The Fifth Circuit agreed that defendant did not qualify for the “safety valve” provision in § 5C1.2 because he did not provide truthful information about drug quantity. Section 5C1.2 allows defendants to escape an applicable mandatory minimum if they meet certain criteria, including truthfully providing the government with all information about the offense. Defendant did not merely challenge the PSR’s factual findings. He offered testimony at sentencing that directly contradicted information gathered by the government. U.S. v. Edwards, 65 F.3d 430 (5th Cir. 1995).
5th Circuit holds that statements to probation officer do not satisfy “safety valve’s” disclosure requirement. (246) Defendant conspired to possess with intent to distribute more than five kilograms of cocaine, which carries a mandatory minimum sentence of 120 months. The district court determined that the “safety valve” provision of 18 U.S.C. § 3553(f) and guideline § 5C1.2 did not apply to defendant because he did not meet the requirement of providing full and truthful information to the government about the offense. Defendant argued that his statement to his probation officer satisfied this requirement. The Fifth Circuit disagreed, holding that the probation officer is not the government for purposes of § 5C1.2. The purpose of the safety valve is to allow less culpable defendants who have fully assisted the government to avoid the application of the statutory minimum sentences. A defendant’s statements to a probation officer do not assist the government. U.S. v. Rodriguez, 60 F.3d 193 (5th Cir. 1995).
6th Circuit finds defendant waived right to appeal safety valve issue. (246) Defendant argued that his guideline range, as calculated by the district court, was incorrect because he was entitled to “safety valve” protection in U.S.S.G. § 5C1.2. The Sixth Circuit held that defendant’s challenge was precluded by the waiver of appeal provision in his plea agreement. Defendant’s plea agreement stated Count I carried a prison term “of not less than five years.” The agreement contained a “Waiver of Appellate Rights” which stated that the defendant waived the right to appeal any sentence within the maximum provided as determined by the Court, or the manner in which that sentence was determined on the grounds set forth in 18 U.S.C. § 3742 or on any ground whatever. Defendant’s plea agreement tied the calculation of his guideline range to the statutory mandatory-minimum sentence and he clearly waived the right to appeal the calculation of his guideline range and sentence. U.S. v. Thomas, 605 F.3d 300 (6th Cir. 2010).
6th Circuit says fear of retaliation does not create exception to safety valve requirements. (246) Defendant did not give the prosecutors all the information he had about his drug trafficking offense. He nevertheless argued that the court should grant him safety valve protection because he feared retaliation if he made a full disclosure, and also because the government already obtained the information from another source. The Sixth Circuit ruled that the Guidelines do not recognize such exceptions, and noted that other circuits have consistently rejected defendant’s proposal. The court did not have the authority to carve out a public-policy exception to the requirement of full and truthful disclosure. A defendant’s fear of retaliation, however credible, does not create an exception to the safety valve’s complete and truthful disclosure requirement. U.S. v. Pena, 598 F.3d 289 (6th Cir. 2010).
6th Circuit says Booker did not give court authority to reduce criminal history score. (246) Defendant was convicted of drug charges that subjected him to a mandatory minimum sentence under 21 U.S.C. §841. He would have been eligible for safety valve relief, 18 U.S.C. §3553(f), except that he had more than one criminal history point. The district court believed that the number of criminal history points overstated defendant’s criminal history. It held that defendant’s criminal history warranted only one criminal history point, and thus found him eligible for safety valve protection. §3553(f)(1). The Sixth Circuit reversed, holding that Booker did not give a court authority to reduce a defendant’s criminal history score. To determine whether defendant was eligible for safety valve relief, the district court should have first followed the guidelines instructions for determining his criminal history category. Kimbrough also did not alter the validity of §3553(f)(1). U.S. v. Branch, 537 F.3d 582 (6th Cir. 2008).
6th Circuit rules cross-reference required applying guideline and specific offense characteristics. (246) Defendant pled guilty to money laundering. Section 2S1.1(a)(1) bases the offense level on the guideline for the underlying offense. In this case, defendant was laundering funds for a drug dealer. Defendant argued that because the district court cross-referenced § 2D1.1, the court was also required to apply the specific offense characteristics of § 2D1.1(b). The Sixth Circuit agreed. Section 1B1.5(b)(1) states that “[a]n instruction to use the offense level from another offense guideline refers to the offense level from the entire offense guideline (i.e., the base offense level, specific offense characteristics, [etc.]).” Thus, § 2S1.1(a)(1)’s direction to apply “the offense level for the underlying offense from which the laundered funds were derived,” meant applying § 2D1.1 in its entirety, rather than only § 2D1.1’s base offense level. Defendant was arguably eligible for a two-level safety valve reduction under § 2D1.1(b)(7). U.S. v. Anderson, 526 F.3d 319 (6th Cir. 2008).
6th Circuit rejects safety valve where defendant did not show gun was unconnected to drug dealing. (246) To be eligible for a safety valve reduction under USSG § 5C1.2, a defendant must meet several criteria, including the requirement that he “did not use violence or credible threats of violence or possess a firearm or other dangerous weapon … in connection with the offense.” Defendant acknowledged at sentencing that he kept firearms in his house, and that he used his house in furtherance of the conspiracy. The Sixth Circuit held that defendant was not entitled to safety valve protection because he did not show that it was more likely than not that the .22 caliber pistol in his house had no connection to the marijuana-manufacturing conspiracy. To make this showing, defendant testified that he used the pistol “for hunting strictly.” The district court, however, determined that defendant was not a credible witness in this regard. Defendant did not prove a convincing reason for the appellate court to second guess the district court’s credibility assessment. U.S. v. Moses, 289 F.3d 847 (6th Cir. 2002).
6th Circuit says criminal history departure cannot make defendant eligible for safety valve protection. (246) The district court found that defendant’s criminal history score overstated the seriousness of his criminal history, and departed downward under § 4A1.3. The judge then determined that defendant was properly reclassified as having a criminal history score of one, and thus, qualified for safety valve protection under 18 U.S.C. § 3553(f) and USSG § 5C1.2. The Sixth Circuit ruled that a downward criminal history departure cannot be used to qualify a defendant for safety valve protection. The language in the commentary to § 5C1.2 clearly limits the district court’s authority to apply the safety valve provision to cases where a defendant has no more than one criminal history point as calculated under § 4A1.1, regardless of whether the district court determines that a downward departure is warranted by § 4A1.3. The district court’s determination that defendant was entitled to a downward departure under § 4A1.3 had no effect on defendant’s criminal history score as calculated under § 4A1.1. U.S. v. Penn, 282 F.3d 879 (6th Cir. 2002).
6th Circuit holds that defendant did not satisfy safety valve’s disclosure requirement. (246) Defendant drove a car containing seven kilograms of cocaine from Florida to Louisville. He argued that he satisfied the safety valve’s disclosure requirement with the statement he made to police officers on the date of his arrest. However, defendant told authorities that he left from Miami, Florida, but the defense later claimed that he left from Tampa. Moreover, defendant stated that was driving a rental car, despite evidence that he drove a co-conspirator’s car, and claimed that he did not recall the make or model of the vehicle which he had driven for 1200 miles, the person who gave him the car, or the restaurant where he met the drug distributor who received the drugs. The Sixth Circuit upheld the district court’s denial of safety valve protection, agreeing that defendant did not truthfully provide all information that he had about the offense. U.S. v. Salgado, 250 F.3d 438 (6th Cir. 2001).
6th Circuit rejects safety valve for defendant who refused to provide information about co-conspirators. (246) Defendant’s cooperation consisted chiefly of unhelpful information provided only hours before his sentencing hearing. He refused to answer questions about marijuana growing activity aside from that undertaken in the barn on the farm property. The Sixth Circuit held that defendant did not meet the information requirement of the safety valve provision. Defendant demonstrated a lack of cooperation by failing to discuss in detail the extent of his marijuana smuggling and growing operation. The information defendant provided related to a supplier of growing lights, fertilizer, and other items which were lawfully sold. Defendant did not provide any information regarding his co-conspirators. Although defendant claimed that he answered all of the questions posed to him by the government, the government has no obligation to solicit information that could help a defendant meet the requirements for the safety valve. Therefore, merely answering all questions posed by the government may not be sufficient to qualify for the safety valve. U.S. v. O’Dell, 247 F.3d 655 (6th Cir. 2001).
6th Circuit holds that safety valve defendant should have LSD weighed using guideline dosage amounts. (246) In Chapman v. United States, 500 U.S. 453 (1991), the Supreme Court held that a court should consider the weight of the LSD and any carrier medium in determining the LSD’s weight for mandatory minimum purposes. Amendment 488 to the guidelines, effective November 1995, provides that the weight of a LSD mixture is calculated by multiplying the number of doses by .4 milligrams. In Neal v. United States, 516 U.S. 284 (1996), the Supreme Court concluded that Amendment 488 did not affect Chapman and applies only to calculating the weight of an LSD mixture under the guidelines. Defendant was eligible for safety valve relief under 18 U.S.C. § 3553(f), which directs the sentencing court to impose a sentence without regard to any statutory minimum sentence. The Sixth Circuit held that because defendant was not being sentenced under the mandatory minimum statute, the district court erred in using the gross weight of the LSD gel tabs to determine his sentence. Defendant’s eligibility for safety valve protection entitled him to be sentenced without regard to the 10-year mandatory minimum. Therefore, the governing law for determining the weight of defendant’s LSD was Amendment 488. U.S. v. Powers, 194 F.3d 700 (6th Cir. 1999).
6th Circuit holds that defendant waived safety valve claim. (246) Defendant argued for the first time on appeal that he was entitled to safety valve protection under 18 U.S.C. § 3553(f) and USSG § 5C1.2. He claimed that the district court erred by failing to make specific factual findings about his entitlement to safety valve protection. The Sixth Circuit held that defendant’s failure to raise his safety valve claim at sentencing waived the claim for appellate purposes. Defendant’s contention that the district court must make findings in regard to § 3553(f) was not supported by the statute. There is nothing that states a district court must make a finding in regard to the safety valve provision. Moreover, as § 5C1.2(5) makes clear, the burden is on the defendant to provide pertinent information, no later than the time of the sentencing hearing. Defendant failed to do so in the present case. U.S. v. Hoskins, 173 F.3d 351 (6th Cir. 1999).
6th Circuit says refusal to testify against co-conspirators does not bar safety valve. (246) Defendant pled guilty to a marijuana trafficking conspiracy. The parties stipulated that defendant met the first four criteria of the safety valve provision in 18 U.S.C. § 3553(f) and guideline § 5C1.2. They also stipulated that defendant had provided certain information to the government, but that defendant would refuse to testify if subpoenaed before a federal grand jury investigating others involved in the offense, or if subpoenaed to testify at a trial of his co-conspirators. The Sixth Circuit held that a defendant’s refusal to testify at criminal proceedings involving his co-conspirators does not bar him from receiving safety valve protection. The clear language of the statute obligates the defendant to provide information and evidence to the government, not to a court. A defendant can provide information that, while not admissible in court, can assist an investigation. A common-sense reading of the statute is that the evidence a defendant must provide is limited to those things in the possession of the defendant prior to his sentencing, excluding testimony, that are of potential evidentiary use to the government. U.S. v. Carpenter, 142 F.3d 333 (6th Cir. 1998).
6th Circuit holds safety valve statute applies to cases pending on appeal. (246) In 1991, defendant was sentenced to 121 months for an offense involving 160 grams of LSD. She later moved to reduce her sentence under 18 U.S.C. § 3582(c) based on a November 1993 retroactive amendment that revised the method for calculating LSD for sentencing purposes. In August 1994, the district court granted defendant’s motion and resentenced her to 120 months, the mandatory minimum sentence. One month later, while defendant’s appeal was pending, the so-called safety valve provision, § 3553(f) went into effect. The Sixth Circuit held that the safety valve statute should be applied broadly to cases pending on appeal when it became effective. A case is not final when it is pending on appeal. The initial sentence has not been finally “imposed” within the meaning of the safety valve statute because it is the function of the appellate court to make it final after review. Section 3553(a) authorizes consideration of the safety valve statute when a defendant is otherwise properly resentenced under § 3582 (c)(2). U.S. v. Clark, 110 F.3d 15 (6th Cir. 1997).
6th Circuit denies “safety valve” for refusing to reveal identity of courier. (246) On two occasions, defendant sold heroin to an undercover agent. He was convicted of distributing heroin. At sentencing, defendant testified that the man who accompanied him on both sales was not a drug courier but merely a friend who coincidentally was with him during the transactions. The district court found defendant was not eligible for safety valve protection under § 5C1.2 because he did not testify truthfully about the role of his companion as a courier. Defendant argued that because his offense of conviction was distribution, rather than conspiracy to distribute, § 5C1.2(5) only required him to provide information regarding his own involvement in the crime, not the identity or activities of the courier of the drugs involved. The Sixth Circuit rejected this interpretation. Section 5C1.2 requires a defendant to provide complete information regarding the immediate chain of distribution. The disclosure requirement does not hinge upon whether the particular conviction happens to be for conspiracy or for a substantive drug offense. U.S. v. Maduka, 104 F.3d 891 (6th Cir. 1997).
6th Circuit holds that § 3553(f) does not authorize further departure to 24‑month sentence. (246) Defendant had a guideline range of 57‑71 months, but pled guilty to an offense carrying a statutory minimum sentence of 60 months. The district court found her eligible for safety valve protection under 18 U.S.C. § 3553(f), and imposed a 57‑month sentence. Defendant argued that the court failed to recognize that § 3553(f) gave it authority to sentence her to as little as 24 months. The Sixth Circuit held that neither § 3553(f) nor § 5C1.2 authorized a downward departure from the applicable guideline range without an independent basis for the departure. The language defendant relied on, in 28 U.S.C. § 994, states that where the mandatory minimum is five years, the guidelines shall call for a guideline range in which the lowest term of imprisonment is at least 24 months. This merely establishes a floor below which the Sentencing Commission cannot lower the sentencing range. It does not provide a basis for departure. U.S. v. Pratt, 87 F.3d 811 (6th Cir. 1996).
6th Circuit requires more information for “safety valve” than acceptance of responsibility. (246) The Sixth Circuit held that the information requirement for safety valve protection is greater than for a reduction under § 3E1.1 for acceptance of responsibility. Here, defendant’s statement that he gave the government “all they asked,” if true, did not satisfy his burden under 18 U.S.C. § 3553(f)(5) and guideline § 5C1.2(5). These provisions require an affirmative act by the defendant truthfully disclosing all the information he possesses that concerns his offense or related offenses. Where the government challenges a defendant’s claim of complete and timely disclosure and the defendant does not produce evidence that demonstrates such disclosure, a district court’s denial of a motion under § 3553(f) and § 5C1.2 is not clearly erroneous. Where a defendant produces specific evidence as a basis for a safety valve treatment, the district court should make specific findings by reference to the criteria of the statute and the guideline. U.S. v. Adu, 82 F.3d 119 (6th Cir. 1996).
6th Circuit prohibits safety valve protection for organizers and continuing criminal enterprise. (246) One of the requirements to receive “safety valve protection” under 18 U.S.C. § 3553(f) and guideline § 5C1.2 is that the court must find that “the defendant was not an organizer, leader, manager or supervisor of others . . . and was not engaged in a continuing criminal enterprise.” Defendant argued that to deny him protection, the government must prove that defendant was both an organizer, leader, manager or supervisor and was engaged in a continuing criminal enterprise. The Sixth Circuit disagreed; a defendant who is either an organizer, leader or manager or engaged in a continuing criminal enterprise may not receive safety valve protection. U.S. v. Bazel, 80 F.3d 1140 (6th Cir. 1996).
7th Circuit says defendant who supervised one other person was disqualified from safety valve. (246) Defendant and his cousin sold crack cocaine to an FBI informant on three occasions. He received a § 3B1.1 leadership increase based on his supervision of his cousin. Focusing on the reference in the safety-valve provision to the plural “others,” defendant argued that the district court erred in finding that his supervision of just one person disqualified him from safety-valve relief under 18 U.S.C. § 3553(f)(4). The Seventh Circuit rejected this argument. Under the rules of construction for the United States Code, “words importing the plural include the singular” unless the context indicates otherwise. 1 U.S.C. § 1. Moreover, the plain language of § 3553(f)(4) conditions safety-valve relief on whether the defendant is characterized as a supervisor anywhere in the guidelines, and the commentary to § 3B1.1 authorizes the two-level adjustment as long the defendant supervised “one or more” participants. See Note 2 to § 3B1.1. Because defendant properly received the two-level adjustment under § 3B1.1, he was not eligible for safety-valve relief. U.S. v. May, 748 F.3d 758 (7th Cir. 2014).
7th Circuit denies safety valve to defendant who lied during debriefings despite later attempt to be truthful. (246) Defendant was caught lying during two safety-valve debriefings, and the district court denied him safety valve relief. On appeal defendant contended that, despite his lies, he came clean before sentencing, and thus was entitled to benefit from the safety valve. Months after the debriefings, he sent the government a letter that allegedly constituted a complete and truthful disclosure prior to sentencing. The Seventh Circuit upheld the denial of safety valve protection. The point of § 3553(f)(5) is that a defendant who waits until the last minute to seek the safety valve will not be penalized for his tardiness, but tardiness is very different from trying repeatedly to deceive the government until time has run out. Moreover, the court gave defendant the benefit of the doubt and evaluated his letter, but found the supposed cooperation was “too little too late, with emphasis on the too little.” Defendant’s letter was not a complete disclosure, and instead represented the “bare minimum” he was “willing to sign on for.” A defendant is not entitled to the safety valve when he provides only limited information instead of complete disclosure. U.S. v. Acevedo-Fitz, 739 F.3d 967 (7th Cir. 2014).
7th Circuit does not count animal abandonment misdemeanor in criminal history. (246) Defendant’s llama escaped from its pen and wandered off. For failing to prevent this escape, defendant was charged with misdemeanor abandonment under the Illinois animal cruelty statute. Rather than hire a lawyer, defendant chose to plead guilty and pay a $525 fine. Three years later, defendant pled guilty to marijuana charges carrying a mandatory minimum sentence of ten years. But for the misdemeanor llama conviction, defendant would have qualified for safety valve protection, 18 U.S.C. § 3553(f), and his guideline sentencing range would have been 18-24 months in prison. The Seventh Circuit held that defendant’s llama conviction was similar to misdemeanors listed in § 4A1.2(c) as offenses that should not count for any criminal history points, and the district court plainly erred in including it in defendant’s criminal history. Abandonment of a llama was similar to a listed offense, “fish and game violations.” The district court’s comments at sentencing showed that the judge believed that a much lower guideline-range sentence would have been sufficient. Thus, the panel could presume that defendant’s substantial rights were affected by the error. U.S. v. Burge, 683 F.3d 829 (7th Cir. 2012).
7th Circuit says court may deny safety valve to defendant who recanted earlier statements to government. (246) The district court found that defendant was ineligible for safety valve protection because he did not meet the information requirement of § 3553(f)(5). Defendant relied on U.S. v. Shrestha, 86 F.3d 935 (9th Cir. 1996), to argue that defendants who ultimately recant some of their earlier, truthful statements to the government are not ineligible for safety valve protection. The Seventh Circuit found no error. Shrestha did not hold that defendants who recant truthful statements must be given a safety valve reduction. It only held that those defendants are not rendered ineligible for the safety valve reduction as a matter of law. Here, the district court denied the reduction because it found that defendant’s credibility had been undermined by inconsistencies in his statements and his ultimate retraction. The court is entitled to refuse to apply the safety valve when it finds that defendant’s proffer was no longer reliable because he dishonestly claimed to have forgotten the information previously conveyed. U.S. v. Li Xin Wu, 668 F.3d 882 (7th Cir. 2011).
7th Circuit denies safety valve where defendant limited topics he would discuss at debriefing. (246) Defendant pled guilty to possessing over 500 grams of cocaine with intent to distribute. The district court denied him safety valve protection, finding he did not provide the government with all relevant information and evidence he had concerning the offense. 18 U.S.C. § 3553(f)(5). The court relied in part on limits defendant placed on the topics he was willing to discuss during his debriefing. Defendant provided information about his suppliers and the amount of drugs he dealt, but was unwilling to provide any information regarding his customers, or his co-defendants. The court also relied on hearsay statements made by confidential informants that defendant had lied to government agents during the debriefing. The Seventh Circuit affirmed the denial of safety valve protection, noting that it would have upheld the court’s decision even if it relied solely on the limits defendant placed on his debriefing. The district court did not clearly err in finding that defendant was ineligible for a safety valve adjustment. U.S. v. Nunez, 627 F.3d 274 (7th Cir. 2010).
7th Circuit upholds appeal waiver despite misunderstanding about safety valve’s applicability. (246) Defendant pleaded guilty to a drug-trafficking offense that carried a mandatory minimum 20-year sentence. The plea agreement contained a waiver of defendant’s right to appeal, and when he entered the plea, he stated that he understood the effect of the appeal waiver. When defendant entered the plea agreement, he and the government both understood that he would be eligible for the safety valve, 18 U.S.C. § 3553(f), which would have allowed the district court to impose a sentence below the mandatory minimum. The PSR determined, however, that defendant was not eligible for safety valve treatment. The district court accepted that conclusion and sentenced defendant to the mandatory minimum of 20 years. Defendant appealed, arguing that the appeal waiver should not be enforced because he and the government mistakenly believed that he would be eligible for the safety valve. The Seventh Circuit rejected defendant’s claim that the agreement rested on a mutual mistake as to defendant’s safety valve eligibility, enforced the appeal waiver, and dismissed defendant’s appeal. U.S. v. Chapa, 602 F.3d 865 (7th Cir. 2010).
7th Circuit holds that any error in denying safety valve was harmless. (246) Defendant argued that the district court erred by failing to provide an explanation for its denial of safety valve protection. The Seventh Circuit held that any error in the district court’s explanation was harmless, since defendant did not meet the requirements for the safety valve. The letter that defendant provided to meet the safety valve’s information requirement merely reiterated defendant’s claim of innocence. This claim was belied by the evidence in the case. The letter essentially rehashed a jury argument – that defendant never intended to rob the stash house. The jury rejected that version of the events. Defendant’s proffer failed to meet Congress’s purpose for enacting the safety valve statute “to allow lenience toward low-level defendants who did their best to cooperate.” U.S. v. Corson, 579 F.3d 804 (7th Cir. 2009).
7th Circuit upholds mandatory minimum for sexual predators. (246) Defendant pled guilty to attempting to entice a minor to engage in a criminal sexual act, in violation of 18 U.S.C. § 2422(b). He argued that § 2422(b)’s mandatory minimum 10-year sentence violates the Fifth and Eighth Amendments because it is not subject to a “safety valve” allowing for a sentence below the mandatory minimum term. The Seventh Circuit held that the mandatory minimum did not violate equal protection. Criminal defendants who violate § 2422(b) are not similarly situated for sentencing purposes with criminal defendants who violate the controlled substances offenses enumerated in § 3553(f). There is a rational distinction between first time, non-violent drug offenders who have cooperated with the government, and those offenders who have attempted to prey on children. The 10-year mandatory minimum sentence was not grossly disproportionate to the offense of sexual enticement of a minor and therefore it did not violate the Eighth Amendment. U.S. v. Nagel, 559 F.3d 756 (7th Cir. 2009).
7th Circuit denies safety valve to defendant who was not truthful about events surrounding his arrest. (246) Members of a drug task force arrested defendant after seeing co-defendant Barrera hand defendant a duffel bag that turned out to contain cocaine. During a safety valve interview, defendant told the government he went to the garage to give Barrera his car keys, and denied seeing the bag, or that Barrera handed him the bag. The government opposed defendant’s request for safety valve protection, arguing that his statement was an attempt to minimize his role in the offense by separating himself from the cocaine, by denying knowledge of Barrera’s drug activity, and by claiming he did not know why his roommate had shown him how to use the car’s “traps” or hidden drug compartments. Defendant argued that any lack of candor regarding the events surrounding his arrest was irrelevant because he admitted enough facts to render him culpable. The Seventh Circuit disagreed. The safety valve provision demands “all information” that the defendant has concerning the offense. Thus, it requires at a minimum that he be truthful about the details of his own involvement in the cocaine transaction and about any other activities related to the course of conduct. The court was entitled to credit the officers’ testimony that Barrera handed the bag to defendant. U.S. v. Montes, 381 F.3d 631 (7th Cir. 2004).
7th Circuit holds that defendant waived challenge to denial of safety valve protection. (246) In order to be eligible for safety valve protection under § 5C1.2, a defendant must show that he has no more than one criminal history point. Defendant had been assigned two criminal history points but argued to the district court that he should only be held responsible for one criminal history point, disputing the point assigned to a battery conviction. The district court found that defendant was properly assigned the criminal history point for the battery conviction, and denied him safety valve protection. On appeal, defendant argued for the first time that he should not have received a criminal history point for a state driving violation. The Seventh Circuit held that defendant waived this argument by failing to raise it at sentencing. He objected to the assignment of a criminal history point for the battery conviction; he similarly could have objected to the criminal history point for the driving violation. U.S. v. Adargas, 366 F.3d 879 (10th Cir. 2004).
7th Circuit denies safety valve reduction to defendant who did not provide truthful information. (246) At his sentencing hearing and in his proffer, defendant maintained that March 29, 2000, the day he was arrested, was the first time he had every participated in heroin trafficking. That conflicted with an earlier statement he gave to the officers at the time of his arrest, in which he acknowledged he had stayed at the motel where he was arrested one month earlier and had transported a large quantity of heroin to the same person as this delivery. The registration clerk at the motel corroborated that defendant stayed at the motel one month earlier and that he requested the same room on March 29, 2000 as he had previously occupied. The district court held defendant was not entitled to the safety valve reduction under § 2D1.1(b)(6) because he had not “truthfully provided to the government all information and evidence” that defendant had about the offense. U.S.S.G. § 5C1.2(a)(5). The Seventh Circuit affirmed. There was no reason to disturb the court’s credibility findings. Given that the earlier transaction was close in time, involved the same type of drug, the same contact person, and even the same motel room, the court did not err in holding that it was part of the same common scheme or plan. Therefore, defendant was not entitled to the safety valve reduction. U.S. v. Adeyeye, 359 F.3d 457 (7th Cir. 2004).
7th Circuit says defendant did not meet burden of proving entitlement to safety valve protection. (246) Defendant was involved in the transfer of over 1000 kilograms of marijuana from Texas to Illinois. The district court denied him safety valve relief, finding that defendant failed to show that he truthfully provided all relevant information to the government as required by U.S.S.G. § 5C1.2(a)(5) and 18 U.S.C. § 3553(f). Defendant denied being present in Texas for the drug pick-up, despite the fact that he was identified from a photograph by two DEA agents posing as drivers who maintained he was there. Moreover, he had told a confidential informant that he would be there. The Seventh Circuit held that the district court properly denied defendant’s safety valve protection. A defendant bears the burden of proving he has offered a full and complete disclosure. Defendant did not offer any evidence except for his own testimony to substantiate his version of the events. He also did not dispute that he did not volunteer relevant information at a second meeting with the government until after being confronted with contradictory evidence. A district court may consider a defendant’s lack of candor in determining eligibility for safety valve protection. U.S. v. Ponce, 358 F.3d 466 (7th Cir. 2004).
7th Circuit says counsel’s failure to proffer not completely truthful statement was not ineffective assistance. (246) In a motion under 28 U.S.C. § 2255, defendant argued that his counsel was ineffective in failing to proffer defendant’s written statement about the offense, and that because of this failure, he did not receive safety valve protection under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Because the Seventh Circuit concluded that his proffer would have been insufficient even if it had been submitted to the government, defendant could not show prejudice. It was defendants’ burden to prove that he would have been eligible for the safety valve reduction if the proffer had been correctly made. However, the proffer was not truthful and complete. Defendant contended that he was initially duped into assisting a heroin supplier in smuggling heroin into the U.S. The government, however, contended that he must have known all along that the supplier was smuggling heroin because defendant had previously been involved with dealing drugs with a different source. The district court accepted the findings of the probation officer, who believed the government’s version of the events. While it was possible the district court might have decided this issue differently had it been squarely presented for resolution via a safety valve proffer, the record did not support a finding that the written statement was entirely truthful. Therefore, any error was harmless. Emezuo v. U.S., 357 F.3d 703 (7th Cir. 2004).
7th Circuit says court had no discretion to examine validity of prior conviction to make defendant eligible for safety valve. (246) The district court found that it did not have authority to sentence defendant below the statutory minimum under the “safety valve” provision because he had three criminal history points. Defendant argued that two of those points, for committing the current offense while he was on supervision for a prior state court drunk driving conviction, were improper because the attorney in the state case sought numerous continuances and failed to provide him with an opportunity to plead guilty in a timely fashion. The district court, while acknowledging that the four-year delay in accepting his guilty plea was questionable, concluded that it did not have the authority to re-examine the state court proceedings and determine who was at fault for the delay. The Seventh Circuit agreed. District courts lack discretion to alter a defendant’s criminal history points so as to render him eligible for safety valve protection. The district court correctly concluded that it had no discretion to reexamine the validity of defendant’s prior conviction and permit a downward departure. U.S. v. Vega-Montano, 341 F.3d 615 (7th Cir. 2003).
7th Circuit holds that defendant who ceased cooperation was not entitled to safety valve. (246) Although defendant initially cooperated with the government after his arrest, at some point he began to act irrationally, and was found incompetent to stand trial. During this period, defendant filed a series of motions to undo his previous cooperative efforts. As soon as defendant was restored to competency, the case proceeded to trial. Defendant argued that he was entitled to safety valve protection because he cooperated fully with the government while he was of sound mind, and ceased his cooperation only when his mental condition deteriorated. The Seventh Circuit found no error in the denial of safety valve protection. Although defendant did offer to resume cooperation after he was restored to competency and before sentencing, the district court properly focused on defendant’s cooperation during the entire time period after he was restored to competency. During this period, defendant insisted that his grand jury testimony was coerced and untruthful. He also put the government to its burden at trial after he was restored to competency. These post-restoration facts were not outweighed by defendant’s belated offer to resume cooperation with the government. U.S. v. Bonsu, 336 F.3d 582 (7th Cir. 2003).
7th Circuit holds that cooperation after beginning of sentencing hearing is too late for safety valve. (246) One of the requirements for safety valve protection under U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f) mandates that: “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense ….” The Seventh Circuit held that this requires full disclosure before the sentencing proceedings begin. Cooperation that occurs after the sentencing hearing begins comes too late for safety valve protection. The district court here did not clearly err when it concluded that defendant had not informed federal agents about his sister’s telephone number during the proffer meeting (or at any other time prior to the beginning of the sentencing hearings). The court relied on its credibility assessments of the testimony and affidavits offered by several federal agents, an assistant U.S. attorney, and defendant himself. U.S. v. Alvarado, 326 F.3d 857 (7th Cir. 2003).
7th Circuit denies safety valve protection where defendant recanted grand jury testimony at trial. (246) While defendant provided complete testimony against other defendants in front of the grand jury, at trial he stated that he could not remember the facts as they related to the others. The district court found this purported lack of memory to be perjurious and thus an obstruction of justice. Defendant argued that he was nonetheless entitled to safety valve protection, and that his false trial testimony did not negate the fact that he provided the government with complete information. He cited U.S. v. Shrestha, 86 F.3d 935 (9th Cir. 1996), which upheld the district court’s application of the safety valve where the defendant recanted his helpful testimony at trial. The Seventh Circuit held that the district court did not clearly err in denying safety valve protection where, as here, the defendant recanted his testimony and perjured himself at trial. Because defendant dishonestly claimed to have forgotten the information previously conveyed, the district court found that defendant’s proffer was no longer reliable. Shrestha dealt with the question of whether a court was in clear error in allowing the adjustment. The question here was whether the district court was in clear error in denying it. U.S. v. Gonzalez, 319 F.3d 291 (7th Cir. 2003).
7th Circuit denies safety valve because defendant did not provide all the information he possessed. (246) Although the PSR concluded that defendant was eligible for the safety valve provision, the government argued that defendant failed to provide all the information he had. Not only did defendant’s proffer lack details to aid in the investigation of the source of the drugs he was transporting, defendant recanted his admission to prior drug runs and refused to give information for fear of putting his family in jeopardy. The Seventh Circuit ruled that the judge’s finding that defendant’s testimony did not qualify for the safety valve reduction was not clearly erroneous. U.S. v. Martinez, 301 F.3d 860 (7th Cir. 2002).
7th Circuit holds that defendant waived claim that co-conspirator’s gun possession did not bar safety valve. (246) Defendant’s plea agreement stipulated that if the district court found that he did not possess a firearm in connection with the offense, then he met the remaining requirements of the safety valve provision, and would be entitled to a reduction under § 2D1.1(b)(4). The district court imposed a § 2D1.1(b)(1) firearm enhancement based on his co-conspirator’s possession of firearms during the drug conspiracy, but did not grant defendant safety valve relief or a § 2D1.1(b)(4) reduction. Defendant argued for the first time on appeal that co-conspirator liability is not a basis for determining firearm possession under the safety valve provision. The Seventh Circuit did not reach the merits of this argument, ruling that defendant waived, rather than forfeited his challenge. Waiver occurs when a defendant intentionally relinquishes or abandons a known right, whereas forfeiture occurs when a defendant fails to timely assert his rights. Forfeited issues are reviewed for plain error, but an appellate court cannot review a waived issue. Here, the parties stipulated that defendant would be eligible for safety valve relief if the court determined that he did not possess a firearm. The court concluded otherwise, but the sentencing recommendations in the PSR made no mention of § 5C1.2 or § 2D1.2(b)(4), and both defendant and his counsel affirmatively stated that they had no objection to the PSR apart from the firearm enhancement. Thus, despite having raised the § 5C1.2 question during plea negotiations, defendant extinguished the issue by affirmatively declining to object at sentencing. Judge Ripple dissented, believing defendant had merely forfeited the issue. U.S. v. Harris, 230 F.3d 1054 (7th Cir. 2000).
7th Circuit says safety valve only applies to drug convictions under Title 21. (246) Defendant was convicted of various counts of wire fraud, money laundering, conspiracy and perjury. He argued that the district court should have found him eligible for safety valve protection under USSG § 5C1.2. The Seventh Circuit rejected the claim, since § 5C1.2 applies only to convictions under Title 21 (drug offenses). U.S. v. Polichemi, 201 F.3d 858 (7th Cir. 2000).
7th Circuit agrees defendant did not meet information requirement of safety valve provision. (246) One of the requirements of safety valve protection is that the defendant must “not later than the time of the sentencing hearing … truthfully [provide] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” See USSG § 5C1.2(5). Defendant gave one statement to law enforcement agents, on the day his home was searched. Following that, he did not make a proffer and did not expand on his initial statement regarding his co-defendants. The proffers of his co-defendants suggested that defendant was not forthcoming in his post-arrest interview. Accordingly, the Seventh Circuit upheld the denial of safety valve protection. U.S. v. Galbraith, 200 F.3d 1006 (7th Cir. 2000).
7th Circuit holds that statement and written offer to submit to interview satisfied safety valve. (246) Defendant submitted a six-page account of his offense and his attorney also wrote to the government to confirm defendant’s willingness to submit to a safety valve interview. However, the government took the position that defendant had not provided truthful information. No sworn interview was conducted because of the government’s belief that defendant had not been truthful. The district court, however, denied defendant safety valve protection because it found his statement was incomplete. The Seventh Circuit held that defendant’s written statement (if truthful) combined with his offer to meet with the government, satisfied the safety valve disclosure requirement. A defendant cannot satisfy the disclosure requirement simply by notifying the court of his willingness to submit to an interview. In this case, however, defendant acted affirmatively by inviting the government in writing to interview him. The government rebuffed him. Under these circumstances, defendant’s written statement and his offer to meet with the government satisfied the safety valve disclosure requirement. U.S. v. Brack, 188 F.3d 748 (7th Cir. 1999).
7th Circuit says plea agreement obligated government to argue gun not possessed in connection with offense. (246) In defendant’s plea agreement, the government agreed to recommend a § 5C1.2 safety valve reduction. To be eligible for this provision, a defendant cannot possess a dangerous weapon in connection with the offense. At sentencing, the government advised the court that a gun was found in defendant’s car when he was arrested, and that this fact was overlooked by prosecutors when they entered into the plea agreement. Since the case was being remanded on other grounds, the Seventh Circuit did not decide whether the government breached the plea agreement. However, it noted that the agreement did obligate the government to fully inform the court why it believed the defendant did not possess a weapon in connection with the offense, since this was the only way the government could meaningfully recommend the safety valve reduction. It was not clear from the record that the government adequately did so. On remand, “the government is bound by the promises it made in the plea agreement and the district court can further reflect upon the appropriateness of the safety valve reduction.” U.S. v. Grimm, 170 F.3d 760 (7th Cir. 1999).
7th Circuit requires safety valve disclosure before sentencing hearing. (246) At sentencing, the government presented testimony indicating that defendant had not been truthful during an interview with government agents. The court recessed the hearing, and suggested that defendant think about making “a clean breast of things.” At the continuation of the hearing, the court offered defendant the opportunity to meet with an FBI agent to give another statement. After the meeting, there was further disagreement as to whether defendant had provided full disclosure. The court continued the sentencing hearing again. Defendant then presented a letter detailing his involvement in the crime, which was different from what he told the FBI agent at the previous hearing. The district court ultimately ruled defendant qualified for safety valve protection. The Seventh Circuit reversed, holding that a defendant must meet the safety valve’s requirement of complete and truthful disclosure by the commencement of the sentencing hearing. The safety valve provision does not allow a defendant who provides an untruthful version of his offense before sentencing to be given repeated opportunities to change his story and attempt to make a more complete disclosure. A defendant may not deliberately mislead the government and wait until the middle of sentencing to cure his prior misstatements. U.S. v. Marin, 144 F.3d 1085 (7th Cir. 1998).
7th Circuit holds defendant’s lies made him ineligible for safety valve. (246) After defendant’s arrest on drug charges, he sent a letter to a friend directing him to remove money hidden in a house in Pennsylvania before it could be seized by the government. During his interviews, defendant mentioned the house, but did not disclose that he used the house to hide drug proceeds. He also denied that he possessed any assets from drug trafficking, and claimed he was broke. He also said that a safe deposit box for which he had the key belonged to a recently-deceased friend. At the Pennsylvania house the government found $202,000, a Rolls Royce, and a false identification bearing defendant’s picture in the name of the safe deposit holder. Agents also seized $48,000 in cash from the safe deposit box. The Seventh Circuit held that defendant’s lies disqualified him from safety valve protection. Government investigators caught defendant in lie after lie. He denied writing a letter to anyone regarding the concealment of drug proceeds, and he denied that he had any assets in a safe deposit box until he was confronted directly with the letter. This was not good-faith cooperation. U.S. v. Ramunno, 133 F.3d 476 (7th Cir. 1998).
7th Circuit holds court could consider proffer statements in denying safety valve credit. (246) After his arrest, defendant gave two formal proffers to the government admitting only a limited knowledge of drug trafficking. The proffer agreement required him to provide a completely truthful statement of his activities. It also provided that statements made during the proffer would not be used against him at trial, but could be used for any purpose at sentencing. The district court found defendant was not eligible for safety valve protection, finding he had not truthfully stated all information he had concerning the offense. The Seventh Circuit held that the district court could properly consider the proffered statements to establish defendant’s ineligibility for safety valve protection. The contract made clear that if he ever presented a position contrary to the proffer, the government could use the statements. The district court determined that defendant knew of his co-conspirator’s drug operation and therefore was less than truthful in his contrary assertion in the proffer statements. U.S. v. Cobblah, 118 F.3d 549 (7th Cir. 1997).
7th Circuit says defendant who qualifies for safety valve may be denied a § 3E1.1 reduction. (246) Defendant failed to appear for a plea hearing on drug charges. He surrendered seven months later, pled guilty and admitted packaging drugs, but denied distributing the drugs himself. He argued that the district court’s denial of an acceptance of responsibility reduction under § 3E1.1 was inconsistent with its decision to grant him safety valve protection under § 5C1.2. The Seventh Circuit held that a defendant who qualifies for safety valve protection is not automatically entitled a § 3E1.1 reduction. In one respect, the information requirement in Section 5C1.2(5) requires more of an effort from the defendant than § 3E1.1(a), but in other respects it demands less. Assuming the § 5C1.2 reduction was proper, the district court was nevertheless permitted to refuse a § 3E1.1(a) reduction because defendant failed to appear and remained absent for seven months, and denied distributing drugs. U.S. v. Webb, 110 F.3d 444 (7th Cir. 1997).
7th Circuit rejects “safety valve” for defendants who denied all knowledge of marijuana. (246) Defendants were stopped driving a rental truck containing a large quantity of marijuana from California to New York. Both defendants claimed ignorance of the marijuana found in the truck. One defendant explained that she was moving to New York, and that a man she had met a few months earlier had asked her to take some of his furniture for him because he had a broken leg. The other defendant’s story differed slightly. Both defendants denied any knowledge of the tail vehicle the police noticed following the truck before it was stopped. The Seventh Circuit agreed that defendants did not satisfy the information requirement of the safety valve provision. Neither defendant cooperated with the government in good faith. Moreover, the jury rejected defendants’ claimed ignorance in convicting them. U.S. v. Thompson, 106 F.3d 794 (7th Cir. 1997).
7th Circuit puts burden on defendant to prove eligibility for “safety valve.” (246) To qualify for “safety valve” protection, a defendant must truthfully provide to the government all information and evidence he has concerning his offense. Defendant argued that once a defendant offers his information and states that such evidence is the full extent of his knowledge, the burden shifts to the government to proffer evidence that the defendant has not provided his information completely or truthfully. The Seventh Circuit rejected defendant’s burden-shifting theory. The burden in on defendant to come forward and supply the government with full and truthful information. The government is not required to show that defendant’s response was not truthful or complete. Of course, the court must allow the government the chance to comment on the defendant’s eligibility under the safety valve provision. U.S. v. Ramirez, 94 F.3d 1095 (7th Cir. 1996).
7th Circuit does not decide whether “safety valve” can be applied if original sentencing was before 9/23/94. (246) Defendant moved to reduce his sentence under 18 U.S.C. § 3583(c)(2) based on the retroactive LSD guideline amendment. The district court ruled that under U.S. v. Neal, 46 F.3d 1405 (7th Cir. 1995), the amendment did not alter the fact that defendant was still subject to a mandatory minimum sentence of 10 years. The district court found that the “safety valve” in 18 U.S.C. § 3553(f) provided no relief from the mandatory minimum because the “safety valve” applies only to sentences imposed after September 23, 1994 and his original sentence was imposed July 5, 1989. On appeal, the Seventh Circuit reaffirmed Neal, but found it unnecessary to address whether the safety valve could be applied on resentencing. At defendant’s original sentencing, the district court found he was an organizer or a leader, which disqualified him from safety valve protection. This finding was affirmed on defendant’s first appeal. U.S. v. Marshall, 83 F.3d 866 (7th Cir. 1996).
7th Circuit applies “safety valve” to defendant who was forthright to extent of her abilities. (246) Defendant was convicted of conspiracy to possess with intent to distribute cocaine. The Seventh Circuit agreed that defendant met the “safety valve” standards in § 5C1.2 for a sentence below the mandatory minimum. Before sentencing, defendant provided the government all information and evidence she had concerning the offense. The district court, relying on expert testimony presented at the sentencing hearing concerning defendant’s perceptual and analytical abilities, concluded that defendant was forthright within the range of her ability. U.S. v. Thompson, 76 F.3d 166 (7th Cir. 1996).
7th Circuit denies “safety valve” protection to defendant who stipulated to offense but made no effort to cooperate. (246) Defendant pled guilty to conspiring to distribute crack cocaine. He stipulated in his plea agreement to the basic details of the offense, but made no further attempt to cooperate. The Seventh Circuit held that defendant was not entitled to protection from the mandatory minimum because he did fulfill the requirements of the “safety valve,” § 3553(f)(5). Defendant failed to respond to a proffer letter sent by the government outlining the terms that would apply if he provided additional information. He could have at least provided the name of the source who sold him crack cocaine. A court may reasonably require a defendant to reveal information regarding his chain of distribution. It was not inconsistent to hold that defendant’s stipulation qualified him for an acceptance of responsibility reduction under § 3E1.1. Section 3553(f) requires more cooperation than § 3E1.1. It did not violate the Fifth Amendment to require defendant to volunteer information about his conduct beyond the offense of conviction. U.S. v. Arrington, 73 F.3d 144 (7th Cir. 1996).
7th Circuit defers to finding that defendant did not provide sufficient information under “safety valve.” (246) Defendant was arrested after landing at the airport carrying two kilograms of cocaine in his suitcase. The district court refused to sentence him below the five year mandatory minimum, finding defendant had not provided the government with all the information he had concerning his offense. The Seventh Circuit, applying the clearly erroneous standard to this determination, affirmed that defendant was not eligible for the § 5C1.2 reduction. The district court’s determination is fact-specific and will often depend on credibility determinations that cannot be replicated with the same accuracy on appeal. Here, the district court believed defendant did not furnish all the information that was within his knowledge, and sentenced him to the statutorily mandated five-year sentence. There was no legal error. U.S. v. Rodriguez, 69 F.3d 136 (7th Cir. 1995).
8th Circuit rejects safety valve for leaders or organizers of drug conspiracy. (246) Defendants Paul and Randy each pled guilty to conspiracy to grow marijuana. The district court sentenced both defendants to 60 months, the mandatory minimum, ruling that the “safety valve” in 18 U.S.C. § 3553(f) did not apply because of their aggravating roles under § 3B1.1(c). The Eighth Circuit upheld the role enhancements for both defendants. Traci, Paul’s ex-wife, testified that Paul directed her to water marijuana plants. She also watched their children while defendant harvested marijuana; bought products like Ziploc bags, potting soil, and a food saver machine; watered marijuana plants; and transplanted marijuana plants. Randy also held an aggravating role, because part of Paul’s “responsibility” was to water Randy’s plants occasionally while Randy was out of town. A farmhand also testified that the Randy asked him to retrieve a bag of marijuana from another building and deliver it to Randy. This farmhand also testified that he helped drill holes in the field for Randy so that Randy could plant marijuana. U.S. v. Irlmeier, 750 F.3d 759 (8th Cir. 2014).
8th Circuit rules possession of marijuana in car is not similar to careless or reckless driving. (246) Defendant was denied safety-valve relief based in part on two minor offenses involving marijuana. Defendant argued that his 2009 conviction for possession of marijuana in a motor vehicle was sufficiently similar to careless or reckless driving to avoid an added criminal history point based on this conviction. The Eighth Circuit disagreed. The first two factors, punishment and seriousness of the offense, weighed in defendant’s favor. All three offenses have the same maximum penalty. However, the remaining factors weighed in favor of the government. Different elements comprised the offenses. Although all three offenses involved operation of a motor vehicle, the crimes are listed in separate chapters of the Minnesota statutes. If the operating-a-motor-vehicle commonality sufficed, then no criminal history points would be awarded for several driving-related offenses like driving under the influence of alcohol. Further, the level of culpability favored the government. Possession of marijuana requires that defendants knowingly commit a crime. Reckless and careless driving require only that defendants drive recklessly or carelessly without knowledge that they are committing a crime. U.S. v. Ruacho, __ F.3d __ (8th Cir. Mar. 11, 2014) No. 12-3760.
8th Circuit finds misdemeanor marijuana possession not similar to public intoxication or disorderly conduct. (246) Defendant was denied safety-valve relief based in part on two minor offenses involving marijuana. He argued that his 2010 conviction for possession of marijuana was sufficiently similar to public intoxication or disorderly conduct to avoid an added criminal history point under § 4A1.2(c). The Eighth Circuit disagreed. The elements of possession of marijuana and disorderly conduct are completely different. Moreover, drug possession “suggests a more calculating, a more resourceful, and a more dangerous criminal” than disorderly conduct. See U.S. v. Foote, 705 F.3d 305 (8th Cir. 2013) (petty misdemeanor conviction for possession of marijuana not similar to a minor traffic infraction). Convictions involving illegal narcotics correlate strongly to recidivism. U.S. v. Ruacho, __ F.3d __ (8th Cir. Mar. 11, 2014) No. 12-3760.
8th Circuit denies safety valve relief to defendant who gave inconsistent statement before and during trial. (246) Drug conspirators hired defendant to transport 10 kilograms of cocaine from Texas to Alabama. Defendant testified he was not involved in drug trafficking, and initially believed he would be paid $700 to transport pipe to Louisiana. He also claimed that he tried to back out, but was forced at gunpoint to take the job, and that he was “very afraid” he might be shot if he did not comply. At trial, defendant’s co-conspirators told a different story, testifying that he was being paid $10,000 and was aware of the drugs, which had been delivered before the trip. One co-conspirator testified that he never saw anyone threaten defendant, and there were no weapons involved in the trip. The district court found defendant ineligible for safety valve relief, concluding he failed to provide completely and truthfully all of the evidence and information he had concerning the offense. His testimony was internally inconsistent and did not “hold together under a very simple common-sense analysis.” The Eighth Circuit held that the district court did not commit clear error or otherwise abuse its discretion in denying safety valve relief. U.S. v. Diaz, 736 F.3d 1143 (8th Cir. 2013).
8th Circuit denies safety valve based on interviewer’s testimony that defendant was not completely truthful. (246) Defendant was convicted of conspiracy to manufacture and distribute 1000 or more marijuana plants. At sentencing, the police sergeant who interviewed defendant expressed his belief that defendant was “evasive” during the interview, and also identified inaccuracies in defendant’s written statement. The district court denied safety-valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a)(5), and sentenced defendant to 120 months, finding that he did not satisfy the information requirement in § 5C1.2(a). On appeal, the Eighth Circuit found no clear error. Defendant never admitted to participating in the conspiracy, which was contrary to the jury’s verdict and trial evidence. The sergeant’s testimony explaining why defendant was untruthful, along with the district court’s own review of the recording of the safety-valve interview, provided a sound basis for the denial of the motion. U.S. v. Polk, 715 F.3d 238 (8th Cir. 2013).
8th Circuit holds that misdemeanor possession of marijuana was not similar to minor traffic infraction. (246) The district court found defendant was ineligible for safety valve relief based in part on his prior petty misdemeanor conviction for possession of 0.4 grams of marijuana. Defendant argued that it should not have been counted in his criminal history because it was similar to a minor traffic infraction excluded by § 4A1.2(c)(2). The Eighth Circuit disagreed. The punishments as well as the perceived seriousness of minor traffic infractions are similar to those for possession of small amounts of marijuana. Both were petty misdemeanors under Minnesota law. However, a conviction for marijuana possession is more serious than a minor traffic infraction because the statute requires the defendant to attend a drug-education program. The two types of offenses also differ in their elements, culpability, and likelihood of recurrence. Drug possession requires mens rea, where most traffic offenses do not. Thus, defendant’s previous conviction had a higher level of culpability than an ordinary traffic infraction. A petty misdemeanor resulting in a fine is a sentence under the guidelines, and possession of marijuana was not similar to any enumerated exceptions. U.S. v. Foote, 705 F.3d 305 (8th Cir. 2013).
8th Circuit says defendant’s safety valve claim did not contradict jury’s verdict. (246) A jury convicted defendant of aiding and abetting the manufacture of marijuana plants, but acquitted him of conspiring to manufacture the plants and aiding and abetting the manufacture of plants with intent to distribute. The district court granted defendant safety valve relief, finding that he was a victim of his own family, who used his property to support a marijuana growing operation on a neighboring property. The government argued that defendant’s safety-valve statement directly conflicted with the jury’s verdict, because defendant “categorically denied all knowledge of any illegal activity,” while the jury found that he knowingly aided and abetted the manufacturing of marijuana. The Eighth Circuit held that defendant’s safety valve statement did not contradict the jury’s verdict because in his proffer statement, defendant admitted deliberate ignorance (i.e., that he failed to investigate facts that put him on notice that criminal activity was likely occurring). Based on the jury’s acquittal of defendant on the conspiracy and aiding and abetting counts, the district court reasonably concluded that the jury rejected significant portions of the testimony offered by defendant’s family members. U.S. v. Honea, 660 F.3d 318 (8th Cir. 2011).
8th Circuit denies safety valve relief to defendant in constructive possession of firearm. (246) Defendant was convicted of conspiracy to possess and distribute crack cocaine and related charges. The Eighth Circuit found the evidence sufficient to establish that defendant was in constructive possession of a firearm, and this was sufficient to preclude him from receiving safety valve relief. Defendant was a passenger in a car traveling from Minneapolis to Duluth to complete a methamphetamine sale. Defendant had arranged to sell the meth at a Duluth hotel, admitted possessing the meth hidden in the dashboard compartment of the car, and admitted recruiting Soto to accompany him on the drug trafficking trip. This was overwhelming evidence that defendant was in constructive possession of the loaded firearm found with 81.4 grams of actual meth in the compartment. Defendant failed to prove that he “did not … possess a firearm or other dangerous weapon or induce another participant to do so in connection with the offense.” 18 U.S.C. § 3553(f)(2). U.S. v. Muniz Ochoa, 643 F.3d 1153 (8th Cir. 2011).
8th Circuit says even after Booker, court cannot ignore criminal history points for safety valve relief. (246) Defendant had three criminal history points—one for a prior criminal conviction for second-degree home invasion, and two points under § 4A1.1(d) because he committed the current offense while on probation for that offense. Because he had three criminal history points, defendant was not eligible for safety valve relief. Defendant argued that the district court erred in finding that it was required to assess criminal history points based on his probationary status at the time of his current offense. According to defendant, because the Guidelines are now advisory, a district court has discretion to determine whether to assess two points to a defendant’s criminal history. The Eighth Circuit rejected this argument. Title 18, section 3553(f)(1) is a statutory directive requiring no more than one criminal history point for safety valve relief. The fact that the statute cross-references the Guidelines does not make the statute advisory. U.S. v. Scott, 627 F.3d 702 (8th Cir. 2010).
8th Circuit denies safety valve relief where defendant threatened and assaulted co-conspirator (246) Defendant pled guilty to drug conspiracy charges. The district court found that defendant’s assault on and threat toward a co-conspirator made him ineligible for safety-valve relief, and the Eighth Circuit agreed. To be eligible, the defendant must not have used “violence or credible threats of violence” while “attempting to avoid detection or responsibility for the offense of conviction.” 18 U.S.C. § 3553(f)(2), USSG § 5C1.2(A)(2). The court found that by threatening a co-conspirator, defendant willfully obstructed justice and used violence or credible threats of violence for the purpose of attempting to avoid detection or responsibility for the offense of conviction. Thus, defendant was not eligible for safety-valve relief. U.S. v. Sandoval-Sianuqui, 632 F.3d 438 (8th Cir. 2011).
8th Circuit denies “safety valve” where defendant was not truthful. (246) Defendant was convicted of conspiring to distribute 50 grams or more of methamphetamine. He challenged the district court’s denial of safety valve protection, claiming that the court failed to apply the correct standard when determining whether he truthfully provided information to the government. The Eighth Circuit found no error. The district court actually agreed with defendant that safety valve relief may be granted even when a defendant maintains that he is innocent. However, the court found that such a defendant must persuade the court that he has fully and completely revealed everything. Here, the court felt that defendant had not done that. In defendant’s safety-valve statement, defendant continued to proclaim his innocence, despite the government’s proof that he participated in a conspiracy to possess and distribute methamphetamine. The district court simply did not believe that defendant was telling the subjective truth as he knew it, and this finding was not clearly erroneous. U.S. v. Aguilera, 625 F.3d 482 (8th Cir. 2010).
8th Circuit finds defendant’s obstruction of justice precluded safety valve relief. (246) Defendant argued that the district court erred by failing to rule on, and failing to grant, defendant’s request to be sentenced pursuant to the safety valve provision in 18 U.S.C. § 3553(f)(5) and guideline § 5C1.2. The Eighth Circuit affirmed the denial of safety valve relief. Although the district court did not make any explicit findings as to whether defendant qualified for safety valve relief, the district court’s finding that defendant obstructed justice under the facts of the case precluded relief. U.S. v. Alvarado, 615 F.3d 916 (8th Cir. 2010).
8th Circuit rejects safety valve where defendant’s statement contradicted his trial testimony. (246) The district court denied safety valve relief under § 5C1.2(a)(5), finding that defendant’s safety valve statement was not credible and did not represent a truthful account of his involvement in the drug conspiracy. The Eighth Circuit found no clear error. The safety valve statement directly contradicted defendant’s testimony at trial. The testimony of several witnesses also contradicted the facts set forth in the safety valve statement. The district court agreed with the government that defendant attempted to minimize his role when he made the safety valve statement. U.S. v. Nguyen, 608 F.3d 368 (8th Cir. 2010).
8th Circuit says calculating criminal history points is not advisory for safety valve purposes. (246) The district court found that defendant had three criminal history points, and thus was ineligible for safety valve protection under 18 U.S.C. § 3553(f). Defendant argued that under Booker, the district court could have considered its assessment of criminal history points as advisory and used its discretion to reduce his criminal history score to meet the requirements of the safety valve provision. The Eighth Circuit rejected the notion that a criminal history point calculation is advisory post-Booker. The district court could not have reduced defendant’s criminal history score simply to make him eligible for safety valve relief. U.S. v. Barrera, 562 F.3d 899 (8th Cir. 2009).
8th Circuit denies safety valve even though co-conspirator only briefly handled gun. (246) Defendant sent Alfred and his brother to exchange crack for a machine gun. The drug buyers were actually undercover agents, and after agents gave Alfred the machine gun, the conspirators were arrested. Defendant pled guilty to conspiracy to distribute and possess more than 50 grams of cocaine base. The district court found defendant ineligible for safety valve protection under 18 U.S.C. § 3553(f)(2) and Guideline § 5C1.2(a)(2) because of the gun. Defendant argued that Alfred’s momentary handling of the gun did not constitute actual or constructive possession because the officers rented the hotel room and demonstrated their continuing ownership and control of the machine gun when they seized the weapon and arrested Alfred immediately after he put the gun in his backpack. The Eighth Circuit held that Alfred was in constructive possession of the weapon, and this was sufficient to preclude defendant from receiving safety valve relief. U.S. v. Denis, 560 F.3d 872 (8th Cir. 2009).
8th Circuit bars safety valve relief because defendant constructively possessed weapon. (246) While staying in a spare bedroom at his mother’s house, defendant discovered crack and a firearm hidden in the room. The weapon and drugs were purportedly owned by defendant’s nephew, who had access to the home. In an alleged effort to raise funds to move out of the house, defendant stole and sold some of his nephew’s crack. He claimed he never touched the weapon after its discovery. Agreeing with the majority of circuits that have decided this issue, the Eighth Circuit held that defendant’s constructive possession of the firearm was sufficient to bar him from receiving safety valve protection under §5C1.2. A defendant who possesses a weapon on his person and one who has a weapon within his dominion and control have the same culpability. There is no reason to distinguish between actual, physical possession and constructive possession when defining what constitutes possession for purposes of §5C1.2. U.S. v. Jackson, 552 F.3d 908 (8th Cir. 2009).
8th Circuit says court cannot impose downward variance based on same factors used for safety valve relief. (246) Defendant pled guilty to methamphetamine conspiracy charges. His advisory guideline range was 108-135 months, but the district court sentenced defendant to 60 months’ imprisonment. The court cited (1) the presence of the same factors that made defendant eligible for the § 3553(f) safety-valve, including that this was his first offense, that the crime did not involve violence, and that he was not a leader or manager, (2) the drugs used to calculate his offense level was substantially the result of six controlled purchases by law enforcement, (3) he faced deportation following his term of imprisonment, (4) he had lived an underprivileged life, and (5) his motivation for the crime was to gain money to provide treatment for his son’s cancer. The Eighth Circuit reversed. The court erred in considering the same facts that it considered in finding defendant eligible for the safety valve. Substantial variances based upon factors already taken into account in a defendant’s guideline sentencing range seriously undermine sentencing uniformity. The court also clearly erred when it found that police made six controlled purchases – they only made three, and the second and third purchases did not increase defendant’s guideline range. Given defendant’s history of reentering the country following deportation, the fact that he would be deported following his imprisonment would not support a variance. Finally, while defendant’s underprivileged background and need for money to pay for his son’s medical treatment were relevant, they did not by themselves support a variance of this magnitude. U.S. v. Morales-Uribe, 470 F.3d 1282 (8th Cir. 2006).
8th Circuit, en banc, upholds denial of safety valve where judge found defendants’ story unbelievable. (246) Defendant and her husband were arrested after selling cocaine to a confidential informant. After pleading guilty to drug charges, they attempted qualify for safety valve protection. The district court found that they did not satisfy their burden of providing the government with all information and evidence they had concerning the offense. The Eighth Circuit, en banc, agreed. Defendants both made limited admissions in the face of evidence implicating them in major drug activity. Very large amounts of drugs were found in the trailer to which they had access and in their apartment. In addition, there was almost $4000 in cash in their apartment, they had receipts for $6000 wired to Mexico, and there was evidence that they had recently wired another $99,000 over a short period of time. Despite this evidence, both claimed the husband had only one drug customer, who happened to be the informant, and that he sold only cocaine. The husband’s explanation for the large amount of methamphetamine in the apartment was that his supplier, whom he really did not know, had offered him an opportunity to sell it. That so much methamphetamine would be fronted to a new dealer was not credible. Finally, no plausible source was identified by defendants to explain the money that was wired to Mexico. U.S. v. Alvarado-Rivera, 412 F.3d 942 (8th Cir. 2005), on rehearing en banc of 386 F.3d 861 (8th Cir. 2004).
8th Circuit holds that § 2D1.1(b)(6) reduction is not limited to offenses listed in safety valve provision. (246) Guideline § 2D1.1(b)(6) provides for a two-level reduction if the defendant meets the criteria for safety valve protection in subsections (1) – (5) of § 5C1.2. The district court held that the reduction was inapplicable to defendant because she was convicted under 21 U.S.C. § 856, an offense that is not listed in § 5C1.2(a). Defendant argued that the plain language of § 2D1.1(b)(6) does not incorporate the safety-valve’s limitation to the specific offenses listed in § 5C1.2(a). The Eighth Circuit agreed, holding that the court erred by refusing to grant defendant the § 2D1.1(b)(6) reduction. By its terms, § 2D1.1(b)(6) refers only to the criteria listed in subdivisions (1) through (5) of § 5C1.2(a). The error was not harmless, and resentencing was required. U.S. v. Mashek, 406 F.3d 1012 (8th Cir. 2005).
8th Circuit holds that refusal to provide certain information barred defendant from safety valve relief. (246) Defendant admitted his role in three drug sales and explained the roles of others in those transactions. However, while he admitted that he drove cars from Nebraska to California, he refused to admit that he knew the cars contained drugs or give any other details about the trips. Defendant told the interviewer he was scared for his family and would rather be sentenced to the mandatory minimum ten years of imprisonment than tell anything more. The Eighth Circuit upheld the district court’s finding that defendant’s refusal to discuss his involvement in the transportation of drugs to or from California disqualified him from receiving safety valve protection. The district court could properly find that defendant’s involvement in other drug activity, occurring during the same time period as his drug sales, was part of the same course of conduct or part of a common scheme or plan. U.S. v. Rojas-Coria, 401 F.3d 871 (8th Cir. 2005).
8th Circuit says court erred in denying safety valve simply because it found defendants’ story improbable. (246) Despite the fact that authorities found one pound of methamphetamine in defendant’s apartment, almost $4,000 in cash, and receipts and notes indicating wire transfers to Mexico of $6000 and $99,000, defendant claimed to only have one drug customer, the informant, and denied selling any drugs other than cocaine. The explanation for the meth was that defendant’s supplier, whom he did not really know, had offered him an opportunity to sell it. Defendant and his wife both denied knowledge of an additional 27 pounds of meth found in their trailer. The district judge denied safety valve protection, finding that the accounts were “improbable” and stating that he did not believe defendants had told the truth. The Eighth Circuit reversed, finding defendants met their burden of showing that they told the government what they knew of the criminal enterprise at issue. If a government disputes the truthfulness or completeness of the defendant’s proffer, the government then has the burden to present evidence on the point, and the adequacy of the proffer cannot be negated by the government’s mere conclusory assertion that the proffer is not truthful or complete. The fact that the court found defendants’ accounts “improbable” was an inadequate basis for declining to find a defendant’s statement truthful. U.S. v. Alvarado-Rivera, 386 F.3d 861 (8th Cir. 2004), vacated, U.S. v. Alvarado-Rivera, 412 F.3d 942 (8th Cir. 2005).
8th Circuit denies safety valve for assaulting potential witness. (246) Prior to trial, defendant and two other men assaulted a co-conspirator in jail in an alleged attempt to prevent the co-conspirator from testifying against defendant. The Eighth Circuit held that this assault barred defendant from receiving safety valve protection. Section 3553(f)(2) says a defendant must not have used “violence or credible threats of violence … in connection with the offense.” The “offense” means the offense of conviction and all relevant conduct. Relevant conduct includes conduct “in the course of attempting to avoid detection or responsibility for that offense…” Because defendant’s conduct qualified as an attempt “to avoid detection or responsibility for that offense” (i.e. threatening and attacking a witness to dissuade him from testifying at trial against the defendant), that conduct disqualified him from a safety-valve reduction. U.S. v. Carrillo, 380 F.3d 411 (8th Cir. 2004).
8th Circuit says defendant sentenced under guideline for listed chemical was not eligible for safety valve. (246) Defendant pled guilty to possessing 864 pills containing pseudoephedrine, in violation of 21 U.S.C. § 841(c)(2). Because defendant was sentenced pursuant to U.S.S.G. § 2D1.11, the district court found that she was not eligible for a safety valve reduction under § 2D1.1(b)(6). The Eighth Circuit agreed. Section 2D1.11 does not provide for a two-level reduction if the criteria from § 5C1.2 are met. Moreover, safety valve relief is intended to avoid imposition of a mandatory minimum sentence, and defendant’s sentence under § 841(c)(2) did not involve imposition of a mandatory minimum sentence. U.S. v. Anton, 380 F.3d 333 (8th Cir. 2004).
8th Circuit says court cannot disregard actual sentence later reduced to obtain favorable federal sentence. (246) For leaving the scene of an accident, defendant received a one year term of probation, which should have resulted in one criminal history point. § 4A1.2(c)(1)(A). For driving while intoxicated, defendant was placed on probation for two years, which should have resulted in another criminal history point. Finally, because defendant was on probation at the time of the current drug offense, he should have received two criminal history points under § 4A1.1(d). However, after he plead guilty to the current federal offense, but before sentencing, defendant filed motions in state court seeking to modify his state sentences. Although the probationary terms had already been completed, defendant obtained a reduction of the first term of probation from 365 to 364 days for the express purpose of avoiding a criminal history point. For the second probation, he received a reduction of the term of probation so that he would be off supervision during the time the federal drug conspiracy took place. The district court calculated defendant’s criminal history based on the modified state sentences and granted him safety valve relief. Given the timing and purpose of defendant’s state sentence reductions, the Eighth Circuit held that the court should have found that defendant had four criminal history points and was ineligible for safety valve relief. Defendant’s state convictions were not expunged. Rather, his probation terms were reduced after they were served merely to obtain favorable federal sentencing. Defendant’s modification of his sentences after they were served for reasons unrelated to his innocence or errors of law was not a valid basis for not counting the sentences for criminal history purposes. U.S. v. Martinez, 354 F.3d 830 (8th Cir. 2004).
8th Circuit defers to finding that defendant did not truthfully provide all the information he had. (246) In order to receive safety valve protection, a defendant must, among other things, truthfully provide all the information he possessed about his offenses to the government. Defendant argued that he satisfied this condition, but the district court disagreed, stating: “I think it is true that before the time of this hearing [defendant] had not truthfully provided the government with all information that he had about it, and I cannot accept the idea that he has provided that here at this hearing.” At sentencing, defendant’s testimony directly contradicted that of several of the other witnesses who testified. Because the district court was able to directly observe each of these witnesses, the Eighth Circuit ruled that its assessment of their credibility was not clear error. U.S. v. Quintana, 340 F.3d 700 (8th Cir. 2003).
8th Circuit says defendant who refused to meet with government failed to show right to safety valve relief. (246) Before sentencing, defendant was given the opportunity to participate in an interview with the government to convey his knowledge about his drug crime, but defendant refused to be interviewed. Defendant contended that the information he conveyed during his plea colloquy and to the probation officer who prepared his PSR were sufficient to satisfy the safety valve’s disclosure requirement, 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5). The Eighth Circuit disagreed. The factual basis of defendant’s guilty plea was limited to a recitation of his own actions about the crime, and his statements to the probation officer were also limited and incomplete. Defendant’s refusal to submit to a government interview precluded the government from determining whether defendant had provided truthful and complete information warranting safety valve relief. It was defendant’s burden to make this showing. U.S. v. Gutierrez-Maldonado, 328 F.3d 1018 (8th Cir. 2003).
8th Circuit holds that continuance of sentencing did not deprive court of jurisdiction to grant safety valve relief. (246) In order to receive safety valve relief, the defendant must provide full information to the government “not later than the time of the sentencing hearing.” During defendant’s first sentencing hearing, the parties discussed whether defendant had provided sufficient information to qualify for safety valve protection. The court decided to continue the hearing, indicating that the government would have an opportunity to debrief defendant. At the second sentencing hearing a month later, the court determined that defendant had during a debriefing session between the two sentencing hearings truthfully provided the government with all information he had concerning his offense and granted him safety valve protection. The government argued that defendant was required to provide information prior to the beginning of the first sentencing hearing, and the further debriefing did not satisfy this requirement. The Eighth Circuit held that the continuation of the sentencing hearing did not deprive the court of jurisdiction to grant safety valve relief. Although an average defendant would not be entitled to a continuance, the district court emphasized that defendant’s lack of understanding of English played an important role in its determination. Moreover, defendant’s familiarity with a different culture produced a mistrust of government authority. Finally, defendant’s counsel believed in good faith that defendant could wait until sentencing to address the safety valve issue. Defendant did not mislead, stall or delay, and the district court did not coax the defendant into cooperation with the government. U.S. v. Madrigal, 327 F.3d 738 (8th Cir. 2003).
8th Circuit denies safety valve protection to defendant who never implicated co-conspirator. (246) In order to obtain safety valve relief, a defendant must truthfully provide to the government “all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan” no later than the time of sentencing. The Eighth Circuit held that the district court did not clearly err in finding that defendant did not meet this burden. Defendant claimed he knew Armandariz-Chavez, and the latter was also present with defendant at the time of their arrests. However, defendant never implicated Armandariz-Chavez and claimed that others were involved in the sale of marijuana from this location. The district court had recently presided over the trial at which Armandariz-Chavez was convicted of the conspiracy and possession charges. The court was permitted to consider this evidence in evaluating the credibility of defendant’s claim that he was not aware of Armandariz-Chavez’s involvement in the conspiracy. The district court could conclude that defendant was in fact aware of Armandariz-Chavez’s role in the conspiracy and doubt the truthfulness of defendant’s proffer to the government. U.S. v. Alarcon-Garcia, 327 F.3d 719 (8th Cir. 2003).
8th Circuit upholds finding that defendant was ineligible for safety valve protection. (246) Defendant provided information to the government and testified before he was sentenced. However, the district court found that defendant’s testimony was unreliable and contradicted that of other witnesses, as well as that in his plea agreement. A district court’s findings regarding the credibility of witnesses are virtually unreviewable on appeal. Furthermore, “a district court’s decision to credit a witness’s testimony over that of another can almost never be a clear error unless there is extrinsic evidence that contradicts the witness’s story or the story is so internally inconsistent or implausible on its face that a reasonable fact-finder would not credit it.” Such evidence was lacking in this case. Accordingly, the Eighth Circuit upheld the district court’s determination that defendant was ineligible for safety valve protection. U.S. v. Gutierrez-Manzanarez, 323 F.3d 613 (8th Cir. 2003).
8th Circuit says safety valve protection not available to defendant convicted under schoolyard statute. (246) Defendant pled guilty to possession of methamphetamine with intent to distribute within 1000 feet of a public playground, in violation of 21 U.S.C. § 860(a). He argued that the district court erred by not granting him a safety valve reduction under 18 U.S.C. § 3553(f). Section 3553(f) provides that a safety valve reduction may be granted to an offender convicted under the following statutes: 21 U.S.C. §§ 841, 844, 846, 960 or 963. The Eighth Circuit ruled that the reduction is not available as a matter of law to someone convicted under § 860. Other circuits agree. See, e.g. U.S. v. Kakatin, 214 F.3d 1049 (9th Cir. 2000); U.S. v. Anderson, 200 F.3d 1344 (11th Cir. 2000). U.S. v. Koons, 300 F.3d 985 (8th Cir. 2002).
8th Circuit denies safety valve and applies enhancement based on firearm found in car. (246) The district court did not clearly err in finding that it was not clearly improbable that the gun found in defendant’s car was connected with criminal activity. Thus, the Eighth Circuit upheld a § 2D1.1(b)(1) firearm increase. In addition, the panel agreed that defendant did not qualify for a safety valve protection under § 5C1.2 and 18 U.S.C. § 3553(f)(2). A safety valve defendant has the burden of proving, among other things, that he did not possess a firearm or other dangerous weapon in connection with his offense. The district court found that there was a nexus between defendant’s gun and his drug activities. This finding was not clearly erroneous. U.S. v. Tyler, 238 F.3d 1036 (8th Cir. 2001).
8th Circuit holds that departure does not delete criminal history points for safety valve purposes. (246) Defendant had three criminal history points, placing her in criminal history category II. The district court found that category II overstated her past criminal conduct, and departed downward under § 4A1.3 to category I. Although defendant’s sentencing range was reduced to 70-87 months, the amount of drugs involved triggered a mandatory minimum sentence of ten years’ imprisonment. To qualify for safety valve protection, a defendant may not have more than one criminal history point “as determined under the sentencing guidelines.” USSG § 5C1.2(1). The district court decided that given its downward departure, it could apply the safety valve. The Eighth Circuit reversed, holding that a criminal history departure does not remove criminal history points for purposes of the safety valve. Because defendant was properly charged with three criminal history points under § 4A1.1, she did not qualify for the safety valve reduction under § 5C1.2. U.S. v. Langmade, 236 F.3d 931 (8th Cir. 2001).
8th Circuit says departure could not have been implicit safety valve reduction. (246) Defendant pled guilty to traveling interstate to promote and facilitate the commission of felony drug offenses, in violation of 18 U.S.C. § 1952(a)(3). He had two criminal history points, one from a conviction for trespass to his father’s vehicle—that would have resulted in a category II criminal history and a guideline range of 63 to 78 months. However, comparing the trespass offense to a family feud, the court excluded the criminal history point for that conviction, thus lowering the criminal history to category I, and announced a guideline range of 57-71 months. The court then imposed a 48-month sentence. Defendant attempted to support the departure by claiming that the court also decreased his offense level by implicitly granted him a safety valve reduction. See USSG § 2D1.1(b)(6) (granting two-level decrease in offense level if defendant’s meets § 5C1.2 criteria). The Eighth Circuit ruled that the sentence was an abuse of discretion because defendant was ineligible for safety valve relief. Defendant pled guilty to violating 18 U.S.C. § 1952, not 21 U.S.C. § 841. Section 5C1.2 applies only to statutes with mandatory minimum sentence. Moreover, defendant could not have received safety valve relief because of his two criminal history points. U.S. v. Heilmann, 235 F.3d 1146 (8th Cir. 2001).
8th Circuit denies safety valve reduction where defendant did not provide evidence to support claim. (246) The district court denied defendant a two-level safety valve reduction under USSG § 2D1.1(b)(6), finding that he had not been fully truthful in his statements to the government about the extent of his involvement in the drug conspiracy. The Eighth Circuit ruled that the district court did not clearly err in finding that defendant had not been fully truthful. The government’s position was supported by the unobjected to facts in the PSR, and defendant did not introduce any evidence in support of his position. U.S. v. Castaneda, 221 F.3d 1058 (8th Cir. 2000).
8th Circuit agrees that defendant was not sufficiently truthful for safety valve protection. (246) At his sentencing hearing, a government agent testified that even after his conviction, defendant continued to deny his involvement in the essential conduct of which the jury found him guilty. For example, in his presentence interview, defendant maintained that he had no knowledge of transporting drugs from Arizona to Iowa. Defendant also stated in the interview that he felt the wire transfers were for cars, not drugs, and he denied that he ever stored any drugs at his house. The district court, based on this testimony and its own credibility assessments, concluded that defendant had no been “completely truthful” in his debriefing, and therefore denied a reduction under the safety valve provision. The Eighth Circuit held that this finding was not clearly erroneous. U.S. v. O’Dell, 204 F.3d 829 (8th Cir. 2000).
8th Circuit upholds firearm enhancement and denies safety valve protection for weapons found at house. (246) Defendant participated in a drug distribution conspiracy by (a) allowing his house to serve as the storage facility for the drugs, and (b) helping unload the drug shipment once the co-conspirators delivered them to his house. The Eighth Circuit affirmed a § 2D1.1(b)(1) firearm enhancement. The government can show that a weapon is connected with an offense by establishing a temporal and spatial relation between the weapon, the defendant, and the drugs. In this case, police found several firearms in defendant’s bedroom, including a loaded weapon under defendant’s pillow. Police also found a small quantity of drugs in his bedroom, a large quantity of methamphetamine in the next room, and 20 pounds of marijuana in the basement. This constituted a sufficient temporal and spatial relation between defendant, the weapon and the drugs. Since the § 2D1.1 (b)(1) enhancement was proper, defendant was ineligible for “safety valve” protection under § 5C1.2(2). U.S. v. Moore, 184 F.3d 790 (8th Cir. 1999).
8th Circuit denies safety valve relief where defendant recanted initial truthful explanation. (246) Upon his arrest, defendant told an investigator that Morales agreed to participate in the marijuana delivery. Some months later, defendant claimed that Morales was not involved in the delivery, and denied that he previously told the agent that Morales was involved. The district court found that this later story was a lie, and that defendant was not entitled to safety valve relief because he did not truthfully provide all information to the government. Defendant argued that he was entitled to safety valve relief because he told the full truth regarding Morales’ involvement in his initial interview, regardless of his later recantation. The Eighth Circuit disagreed. A defendant who materially changes his story before sentencing present a difficult safety valve issue. Defendants who withhold material information until the eve of sentencing, and then are completely truthful, are not precluded from receiving the reduction. Safety valve relief may be granted if the last story is complete and truthful. However, a defendant who initially tells the truth and later recants is not entitled to the reduction. U.S. v. Morones, 181 F.3d 888 (8th Cir. 1999).
8th Circuit denies safety valve reduction where defendant did not admit own guilt. (246) At sentencing, defendant attempted to fulfill the information requirement of the safety valve provision by making a proffer. The district court found that because the proffer did not include any information as to defendant’s own guilt or complicity in the charged offenses, defendant failed to prove that he had provided all of the information and evidence he had concerning the offense. The Eighth Circuit agreed that defendant’s failure to admit his own guilt made him ineligible for safety valve protection. Defendant argued that because he knew that admitting his complicity would qualify him for the safety valve, the fact that he did not make such an admission suggested that he truthfully provided all of the information that he had. However, defendant had a motive to lie. At trial, he had denied his involvement in the offense. To admit complicity at sentencing would have exposed him to potential perjury charges. U.S. v. Surratt, 172 F.3d 559 (8th Cir. 1999).
8th Circuit upholds safety valve relief despite tardiness in providing full information. (246) Seeking to qualify for safety valve relief, defendant submitted to three government interviews in the months before her sentencing. Convinced she was withholding information, the government advised defendant it would oppose safety valve relief. She then agreed to a fourth interview in which she made additional admissions. Convinced she was still lying, the government filed a sentencing memorandum urging no safety valve relief. Just before the sentencing hearing, defendant filed an affidavit containing still more admissions. At sentencing, the government conceded that defendant had provided complete and truthful information prior to the hearing, but argued that her previous lies and omissions made her ineligible for safety valve relief. The Eighth Circuit upheld the district court’s decision to grant defendant safety valve relief despite the tardiness of her cooperation. The plain language of § 3553(f)(5) says the information must be provided “not later than the time of the sentencing hearing.” Although a defendant’s tardy or grudging cooperation is a factor in deciding whether a defendant accepted responsibility or provided substantial assistance, it is not a bar to safety valve relief. U.S. v. Tournier, 171 F.3d 645 (8th Cir. 1999).
8th Circuit holds that safety valve provision applies to both imprisonment and supervised release. (246) Defendant was convicted of drug charges, which carried a mandatory minimum sentence of 20 years in prison and ten years of supervised release. The district court found that defendant qualified for safety valve protection under § 5C1.2. The district court sentenced defendant to 76 months of imprisonment, but nevertheless imposed the statutory minimum ten years of supervised release, stating that it was bound by the mandatory minimum statute. The Eighth Circuit held that the safety valve provision applies to both terms of imprisonment and terms of supervised release. See § 5C1.2, note 9. The district court erred in its belief that it was bound by law to impose the statutory minimum period of supervised release. Once the district court determined that defendant was subject to safety valve protection, the court was not bound by the mandatory minimum statute, and had no authority to consider it. The court’s statement that it believed a ten-year term of supervised release was appropriate was not sufficient, by itself, to support an upward departure. U.S. v. Hendricks, 171 F.3d 1184 (8th Cir. 1999).
8th Circuit says failure to grant safety valve provision not plain error. (246) Defendant argued for the first time on appeal that the district court erred when it failed to apply the “safety valve” provision in § 5C1.2 and 18 U.S.C. § 3553(f). The only issue was whether defendant provided the government with truthful information about the relevant crimes before sentencing. While defendant did meet with law enforcement authorities prior to sentencing, the government contended that he failed to provide truthful information regarding his crimes. Defendant did not dispute the government’s contention at sentencing. The Eighth Circuit concluded that because defendant failed to produce evidence of his eligibility, the trial court’s decision to sentence him without regard to the safety valve provision was not plain error. In fact, it would have been plain error to apply the safety valve provision on this record. U.S. v. Rios, 171 F.3d 565 (8th Cir. 1999).
8th Circuit holds that safety valve amendment is not retroactive. (246) In 1993, defendant was convicted of drug charges. In 1996, he filed a § 2255 motion, claiming ineffective assistance and a right to be resentenced under the new “safety valve” provision in § 5C1.2. The Eighth Circuit held that the safety valve provision was not applicable because it applies only to sentences imposed on or after September 23, 1994. Favorable guideline amendments may be used to reduce an earlier sentence only if such a reduction is consistent with applicable policy statements. Section 1B1.10(c) lists the guideline amendments that may be retroactively applied to lower a previous sentence. Consistent with Congress’s decision not to make § 3553(f) retroactive, amendment 509, which enacted § 5C1.2, is not listed in § 1B1.10(c). Therefore, § 5C1.2 could not be applied to reduce defendant’s sentence. Moreover, defendant did not satisfy his burden of providing the government with truthful information about the relevant crimes. Delgado v. U.S., 162 F.3d 981 (8th Cir. 1998).
8th Circuit denies safety valve for failure to provide information to government. (246) Defendant was convicted of drug conspiracy charges. He contended that he should have received a two-level reduction under § 2D1.1(b)(6) for providing information to the government in accordance with the “safety valve” in § 5C1.2. The Eighth Circuit found no error because nothing in the record indicated that defendant provided any information whatsoever before sentencing. U.S. v. Santana, 150 F.3d 860 (8th Cir. 1998).
8th Circuit denies safety valve reduction based on guns in car and at drug lab. (246) Defendant was involved in a conspiracy to manufacture methamphetamine. Section 2D1.1 (b)(4) provides a two-level reduction in sentence if the defendant qualifies for the “safety valve” under § 5C1.2. The Eighth Circuit held that defendant was ineligible for a reduction under § 2D1.1(b)(4) because she her possessed weapons connected to the drug conspiracy. The safety valve¾and hence § 2D1.1(b)(4)¾ excludes defendants who possess a firearm or other dangerous weapon in connection with the offense. Fourteen guns were found in defendant’s car and licensed in her name. These were not the type of guns commonly associated with a sporting activity. In addition, police found 10 guns at the farmhouse where the conspirators manufactured methamphetamine. The guns were in strategic positions, suggesting that their intended use was to protect the residence and the methamphetamine laboratory. Finally, defendant told a cooperating witness making a delivery of iodine to the farmhouse that he should have called the house in advance to avoid being shot. U.S. v. Coleman, 148 F.3d 897 (8th Cir. 1998).
8th Circuit finds defendant provided sufficient information for safety valve. (246) Defendant and an associate sold drugs to undercover agents on the campus of a hospital. After one of the sales, defendant and his associate fled. Defendant was apprehended, but his associate managed to escape. The district court found that defendant met the information requirement of the safety valve provision. After his arrest, he provided information about the various crimes, including the identification of his associate as a participant, the location of defendant’s residence, and many other details. The Eighth Circuit upheld the court’s finding that defendant provided all the information he had concerning the offenses as not clearly erroneous. U.S. v. Dukes, 147 F.3d 1033 (8th Cir. 1998).
8th Circuit rules affidavit provided on day of sentencing did not satisfy safety valve. (246) To receive safety valve benefits under § 5C1.2, a defendant must show, in part, that he has truthfully provided to the government all information regarding the relevant crime before sentencing. Defendant claimed that he met this information requirement by presenting to the government, on the day of sentencing, an affidavit purporting to set forth in his knowledge of the crime. The Eighth Circuit ruled that the affidavit did not satisfy the safety valve’s information requirement. Defendant was not interviewed by the government concerning the affidavit, and government counsel told the district court that the government did not believe that the affidavit was entirely truthful. The district court noted that certain information in the affidavit was inconsistent with the court’s understanding of the facts of the case based upon a co-defendant’s trial. U.S. v. Velasquez, 141 F.3d 1280 (8th Cir. 1998).
8th Circuit says “safety valve” applies at resentencing on retroactive amendments. (246) In 1992, defendant was sentenced to 160 months for growing marijuana. Three years later, on November 1, 1995, the Commission adopted a retroactive amendment reducing the equivalency ratios for marijuana plants. Defendant filed a motion under 18 U.S.C. § 3582(c)(2) to be resentenced. His new guideline range was 78-97 months, but he was still subject to a statutory 120-month minimum sentence. He sought relief from the statutory minimum under the “safety valve,” 18 U.S.C. § 3553(f). The district court held that the “safety valve” did not apply because it had not been enacted until September 23, 1994, two years after defendant was originally sentenced, and it was not retroactive. The Eighth Circuit disagreed, holding that the “safety valve” can apply at a § 3582(c)(2) resentencing, because it is a “distinct sentencing exercise,” that results in a sentence “imposed on or after” September 23, 1994. The court acknowledged that this leads to a troublesome anomaly because only extensive growers like defendant were initially sentenced under the guidelines, rather than the statutory minimum. However, it would violate the rule of lenity to deny § 3553(f) relief simply because there are others to whom it should also have been extended. U.S. v. Mihm, 134 F.3d 1353 (8th Cir. 1998).
8th Circuit denies safety valve where defendant refused to take polygraph test. (246) The probation office originally said defendant appeared to qualify for safety valve protection under 18 U.S.C. § 3553(f). But the report was revised after a co-defendant told a DEA investigator that defendant had a larger role in the offense than defendant had revealed. The co-defendant agreed to take a polygraph test and passed. Defendant, however, rejected the government’s request to take a polygraph test. The Eighth Circuit upheld the denial of safety valve protection based in part on defendant’s refusal to take a polygraph test. Defendant failed to meet her burden of showing that she truthfully provided to the government all information she had concerning the offense. The conflict between the co-defendant’s account and defendant’s account of the offense also supported the court’s finding that defendant was not entirely truthful. The court properly drew the inference that defendant, not her co-defendant, was untruthful. Judge Bright dissented. U.S. v. Weekly, 118 F.3d 576 (8th Cir. 1997).
8th Circuit finds defendant ineligible for safety valve because of gun in nearby motel room. (246) Defendant was arrested on a rural road in South Dakota as he and an accomplice were in the process of planting marijuana in the field of an unsuspecting farmer. They brought the marijuana from Colorado and were staying in a motel in the area while they traveled at night to different farms. In defendant’s motel room police found $6,500, handwritten maps showing the location of 602 marijuana plants and a large cache of weapons that defendant admitted were his. The Eighth Circuit found defendant ineligible for safety valve protection under 18 U.S.C. § 3553(f) and guideline § 5C1.2 because he possessed the gun in connection with the offense. Although the guns were not in defendant’s possession when he was arrested, he possessed them while traveling with the marijuana to South Dakota. They were also available to him when he traveled between the farms and his motel room. Wright v. U.S., 113 F.3d 133 (8th Cir. 1997).
8th Circuit says gun need not actually be used, to deny “safety valve” protection. (246) To receive “safety valve” protection under § 5C1.2, a defendant cannot possess a firearm or other dangerous weapon “in connection with the offense.” Defendant admitted his gun possession constituted relevant conduct but contended that he did not possess it “in connection with” the instant offense. The Eighth Circuit held that “in connection with” should be interpreted consistently with identical language in § 2K2.1(b)(5). Under that section, a defendant receives an enhancement if he used or possessed a firearm “in connection with” another felony offense. Caselaw holds that the government is not required to show a firearm was actually used to facilitate a felony offense to support a § 2K2.1(b)(5) enhancement. The district court correctly concluded that defendant was not eligible for safety valve protection here. U.S. v. Burke, 91 F.3d 1052 (8th Cir. 1996).
8th Circuit rules defendant did not provide sufficient information to qualify for “safety valve.” (246) Under 18 U.S.C. § 3553(f)(5) and guideline § 5C1.2, a defendant who meets certain criteria may be sentenced below the mandatory minimum. One of the requirements for “safety valve” protection is that defendant provide to the government all information and evidence he has concerning the offenses that were part of the same course of conduct or common scheme or plan. The Eighth Circuit ruled that defendant did not provide sufficient information to qualify for the safety valve. Although defendant gave the government some limited information about his crime, he did not tell the government the whole story about his role in the distribution chain and his gang’s involvement. Defendant failed to respond to the government’s initial request for a written chronological summary of his drug trafficking activities. He also did not respond to the government’s presentence letter expressing concern about his failure to give accurate and specific information about his drug activities. U.S. v. Romo, 81 F.3d 84 (8th Cir. 1996).
8th Circuit denies “safety valve” relief where defendant misstated relevant conduct. (246) Defendant was arrested with a companion at the Minneapolis airport after attempting to discard ten ounces of crack she had carried on a flight from Chicago. The companion was posing as defendant’s husband and carried the husband’s identification. The Eighth Circuit held that defendant did not qualify for “safety valve” relief under 18 U.S.C. § 3553(f) because of misstatements she made about relevant conduct. As an airline employee, defendant could obtain employee non‑revenue airline tickets for family members. When asked why her companion had her husband’s identification, defendant denied that it was so she could obtain an employee ticket for him. However, when confronted with several non-revenue tickets purchased by defendant for travel by her companion between Chicago and Minneapolis. Defendant admitted she had provided her companion with non‑revenue tickets on at least four occasions. Giving airline tickets to a co‑conspirator was clearly part of the same course of conduct as the drug trafficking offense. U.S. v. Long, 77 F.3d 1060 (8th Cir. 1996).
8th Circuit finds no need to consider “safety valve” where court departed below mandatory minimum. (246) Defendant argued that the district court erroneously failed to consider the “safety valve” provision in 18 U.S.C. ‘3553(f). The Eighth Circuit found no error. The “safety valve” would not have provided any relief in light of the district court’s departure below the mandatory minimum and the applicable guideline range. U.S. v. Goodwin, 72 F.3d 88 (8th Cir. 1995).
8th Circuit says “safety valve” does not authorize departure from guidelines. (246) The mandatory minimum for defendant’s drug crime was five years, but his guideline range was 63-78 months. Defendant challenged his 63-month sentence, arguing that 18 U.S.C. § 3553(f), which provides a “safety valve” from mandatory minimums in certain situations, allowed the court to depart from the guidelines. The Eighth Circuit disagreed, holding that § 3553(f) and guideline § 5C1.2 only authorize a downward departure from the statutory mandatory minimum, not from the guidelines. [Ed. Note: Effective November 1, 1995, the Commission amended § 2D1.1(b) to provide a two level decrease for defendants who qualify for the safety valve, if the base offense level is 26 or greater.] U.S. v. Collins, 66 F.3d 984 (8th Cir. 1995).
8th Circuit rejects departure for disparity but suggests applying new “safety valve.” (246) Defendant helped his brother deal narcotics. His guideline range was 51-63 months, but was subject to a mandatory minimum 60-month sentence. The district court departed to a 36-month sentence, finding it “bizarre” that defendant would be subject to the same 60-month sentence as his more culpable brother. The Eighth Circuit reversed, since disparity between co-defendants is not a proper basis for departure, and the fact that defendant had no criminal record could not justify a departure. However, the government conceded at oral argument that under the new “safety valve,” § 5C1.2, defendant could be sentenced without regard to the mandatory minimum, if he provided full information to the government prior to resentencing. This would broaden defendant’s sentencing range to the guideline range of 51-63 months. U.S. v. Polanco, 53 F.3d 893 (8th Cir. 1995).
9th Circuit allows judicial finding that safety valve applies. (246) Defendant was convicted of a drug-trafficking offense carrying a 10-year mandatory minimum sentence. At sentencing, the district court found that defendant was not eligible for the “safety valve” under 18 U.S.C. § 3553(f) because he had five criminal history points. The Ninth Circuit held that the district court did not engage in impermissible judicial fact-finding by deciding that the safety valve was not applicable, nor does Apprendi v. New Jersey, 530 U.S. 466 (2000) require the facts regarding the safety valve to be alleged in the indictment or submitted to a jury. U.S. v. Lizarraga-Carrizales, __ F.3d __ (9th Cir. July 2, 2014) No. 10-50148.
9th Circuit reverses insufficient explanation for denying safety valve. (246) Defendant was convicted of importing marijuana, in violation of 21 U.S.C. § 952 and 960. Conviction under that statute carries a mandatory minimum sentence. Defendant sought a sentence below the mandatory minimum, arguing that he qualified for the “safety valve.” Under 18 U.S.C. § 3553(f), a defendant may receive a safety valve sentence below the mandatory minimum if, among other factors, he truthfully provided the government with all information about the offense. Defendant provided some information to the government during the investigation, but gave false testimony about the offense during trial. The district court declined to give the safety valve adjustment. The Ninth Circuit found that the district court had failed adequately to explain its failure to give the reduction and vacated the sentence. U.S. v. Rangel-Guzman, 752 F.3d 1222 (9th Cir. 2014).
9th Circuit, en banc, holds eligibility for safety valve cannot be obtained “nunc pro tunc.” (246) After being convicted of drug offenses carrying mandatory minimum sentences, defendants learned that they would not be eligible for a reduced sentence under the “safety valve” in 18 U.S.C. § 3553(f) because they were on probation for a prior state conviction. So each defendant returned to state court and convinced the court to enter an order terminating probation “nunc pro tunc” as of the day before they committed the federal crime. Based on the “nunc pro tunc” termination of probation, each defendant argued that he was not on probation when he committed the federal crime and therefore was eligible for the safety valve. Sitting en banc, the Ninth Circuit, in a per curiam opinion, held that a defendant’s guidelines range must be calculated at the time he commits the crime and cannot be altered by an order retroactively terminating probation. Judge Wardlaw, joined by four judges, dissented. U.S. v. Yepez, 704 F.3d 1087 (9th Cir. 2012).
9th Circuit finds safety valve inapplicable where defendant denied guilt during proffer. (246) Before his trial for cultivating marijuana, defendant gave a proffer to the government in which he said that someone else had hired him to stay at the house where the marijuana was found. Defendant denied that he knew that marijuana was growing at the house. After defendant’s conviction, he sought a sentence below the mandatory minimum on the ground that he was eligible for the “safety valve.” A defendant is eligible for a reduction in sentence under the safety valve if he truthfully provides to the government all the information he has about the offense. The district court denied a safety valve reduction, and that Ninth Circuit held that the district court’s finding was not clearly erroneous. U.S. v. Hieng, 679 F.3d 1131 (9th Cir. 2012).
9th Circuit says retroactive termination of probation created eligibility for safety valve. (246) Defendants pleaded guilty to federal controlled substance offenses carrying mandatory minimum sentences. At the time defendants committed the offenses, they were serving California state probationary sentences and therefore were not eligible for a “safety valve” reduction of sentence below the mandatory minimum. Before sentencing, each defendant obtained an order from the state court retroactively terminating the state probationary sentence as of the day before defendant committed the federal crime. The Ninth Circuit held that the state courts’ retroactive termination of probation rendered defendants eligible for a safety valve sentence below the mandatory minimum. U.S. v. Yepez, 652 F.3d 1182 (9th Cir. 2011).
9th Circuit denies safety valve to defendant who arranged drug buy. (246) Defendant was convicted of conspiracy to aid and abet the manufacture of methamphetamine and to possess a methamphetamine precursor knowing that it would be used to manufacture methamphetamine. The evidence at trial showed that defendant arranged the purchase of a substantial quantity of the precursor from undercover police officers. Other evidence suggested that defendant was acting on behalf of others who determined the amount to be purchased, the purchase price, and the location of the transaction. At sentencing, the district court declined to decrease defendant’s sentence under the safety valve, 18 U.S.C. § 3553(f), because the court found that defendant was an organizer of the drug transaction and therefore barred from safety valve relief by § 5C1.2(a)(4). The Ninth Circuit held that even if defendant was not the ultimate purchaser, his role in orchestrating the transaction justified the district court’s decision to deny him the safety valve. U.S. v. Nobari, 574 F.3d 1065 (9th Cir. 2009).
9th Circuit says safety valve does not apply to Maritime Drug Law Enforcement Act. (246) The safety valve provision, 18 U.S.C. § 3553(f), lists the offenses for which a court may impose a sentence under the mandatory minimum if it finds that the defendant meets the requirements of that statute. Section 3553(f) does not list the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. App. § 1903, among the offenses subject to the safety valve. The Ninth Circuit held that the safety valve does not apply to the MDLEA and that defendants convicted of possession of cocaine on board a vessel in violation of the MDLEA may therefore not rely on the safety valve to obtain a sentence below the mandatory minimum. U.S. v. Gamboa-Cardenas, 508 F.3d 491 (9th Cir. 2007).
9th Circuit estops government from arguing against safety valve. (246) Prior to defendant’s trial for possession of cocaine on a vessel, in violation of the Maritime Drug Law Enforcement Act (MDLEA), 42 U.S.C. App. § 1903, the government convinced defendant to waive his right to silence by telling him that he was eligible for a safety valve sentence below the mandatory minimum if he provided the government with information. At his subsequent trial, defendant chose not to testify because he did not want to jeopardize the assurance he received from the government that his pretrial statement would qualify him for the safety valve. After trial, the government argued that the safety valve provision did not apply to the MDLEA. The Ninth Circuit agreed that defendants convicted under the MDLEA were not eligible for relief under the safety valve, but that the government was estopped from arguing that defendant could not receive a safety valve sentence because defendant had detrimentally relied on the government’s assurance that he could obtain a safety valve sentence. The court found that another defendant could not show that the government was estopped because during the interview, induced by the government’s promise that the safety valve would apply, he simply repeated information he had already given the government in a prior interview. U.S. v. Gamboa-Cardenas, 508 F.3d 491 (9th Cir. 2007).
9th Circuit says safety valve is available to defendant who gives useless information at sentencing. (246) Defendant was convicted of drug offenses in 2001. He appealed, the court of appeals vacated his sentence. After he was resentenced, he again appealed, and the court of appeals again vacated his sentence. Prior to his third sentencing, after his codefendants had pleaded guilty and been sentenced, defendant offered to cooperate with the government so that he could obtain a “safety valve” sentence below the mandatory minimum. When the government refused his cooperation because it already knew everything that defendant could offer, defendant wrote the government a letter setting forth all his knowledge about the offense and his codefendants. At sentencing, the district court declined to find that defendant was entitled to the safety valve because his cooperation was untimely and therefore did not represent a good faith effort to cooperate with the government. The Ninth Circuit reversed, holding that a defendant’s cooperation is sufficient to trigger the safety valve even if the defendant provided information at sentencing solely to take advantage of the safety valve provision, even if the defendant’s tardiness deprived the information of its usefulness. U.S. v. Mejia-Pimental, 477 F.3d 1100 (9th Cir. 2007).
9th Circuit holds that Booker left intact safety valve criminal history requirement. (246) To be eligible for the safety valve that allows a court to sentence a defendant below a mandatory minimum sentence, a defendant may “not have more than 1 criminal history point, as determined under the Sentencing Guidelines.” 18 U.S.C. § 3553(f) (1). The Ninth Circuit held that by rending the guidelines advisory in U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court did not render that requirement advisory. For that reason, the court concluded, a district court has no discretion to sentence a defendant who has more than one criminal history point below a mandatory minimum. U.S. v. Hernandez-Castro, 473 F.3d 1004 (9th Cir. 2007).
9th Circuit says ineligibility for safety valve did not result in Eighth Amendment violation. (246) Defendant received a mandatory minimum 60-month sentence for his drug-trafficking offense. He was not eligible for a sentence below the mandatory minimum under the safety valve, 18 U.S.C. § 3553(f), because he had a prior conviction for a minor offense and he had committed the instant offense while on probation for that offense. He argued that denial of relief from the mandatory minimum under the safety valve constituted cruel and unusual punishment, in violation of the Eighth Amendment. The Ninth Circuit rejected that argument and held that § 3553(f) does not violate the Eighth Amendment by limiting its benefit to defendants who have no more than one criminal history point. U.S. v. Gomez, 472 F.3d 671 (9th Cir. 2006).
9th Circuit holds that safety valve provision survives Booker. (246) The safety valve statute, 18 U.S.C. § 3553(f), requires a district court to impose a guidelines sentence below a statutory mandatory minimum if certain conditions are met. In this drug case, the district court refused to apply the safety valve, reasoning that because 3553(f) requires a sentence within guideline range, it was rendered “advisory” by U.S. v. Booker, 543 U.S. 220 (2005). And because it was “advisory” it was “trumped” by the statutory mandatory minimum sentence required by 21 U.S.C. §841(b). The Ninth Circuit rejected this reasoning and held that 18 U.S.C. § 3553(f) survives Booker and requires district courts to impose sentences pursuant to the advisory guidelines when the requirements for a safety valve sentence have been met. U.S. v. Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006).
9th Circuit says drug guideline safety-valve applies even if there is no mandatory minimum. (246) Under § 2D1.1(b)(7), a defendant may receive a two-level reduction in offense level if he meets the criteria set forth in the guideline safety-valve provision, § 5C1.2. The Ninth Circuit held that a defendant may receive a reduction under § 2D1.1(b)(7) even if he is not subject to a mandatory minimum sentence. U.S. v. Feingold, 454 F.3d 1001 (9th Cir. 2006).
9th Circuit upholds finding that defendant possessed 11 firearms in connection with marijuana grow. (246) During the search of defendant’s home, police officers found a substantial quantity of packaged and growing marijuana and 11 firearms, including loaded handguns in the master bedroom and a loaded shotgun by the front door. Defendant pleaded guilty to manufacturing marijuana. Under the safety valve provision, 18 U.S.C. § 3553(f), a court may not impose a sentence below the mandatory minimum if the defendant possessed a firearm “in connection with the offense.” The district court held that the firearms were possessed in connection with the offense because they were placed around the home in a way that enabled defendant to protect his marijuana. The Ninth Circuit upheld the district court’s finding that defendant had not carried his burden of showing that he did not possess the firearms in connection with the offense. U.S. v. Ferryman, 444 F.3d 1183 (9th Cir. 2006).
9th Circuit holds that safety valve factors need not be found by a jury. (246) Under the “safety valve” provision, 18 U.S.C. § 3553(f), a defendant may receive a sentence below a mandatory minimum if he can establish five factors. Under the statute and the implementing guidelines, the district court determines whether the defendant has met the five-factor test. The Ninth Circuit held that the safety valve statute is not unconstitutional because it does not require the facts that allow a decrease in a defendant’s sentence to be found by the court instead of by the jury. U.S. v. Labrada-Bustamante, 428 F.3d 1252 (9th Cir. 2005).
9th Circuit finds government breached plea agreement by arguing for facts inconsistent with agreed sentencing recommendation. (246) Defendant agreed to plead guilty to drug offenses in a plea agreement that provided (1) that the government would recommend a sentence below the mandatory minimum sentence if defendant met the requirements of the “safety valve” in § 5C1.2, and (2) that the parties could “recommend and argue for adjustments” not addressed in the agreement. The government argued to the probation officer and the court that defendant was the organizer or leader of the drug organization. The district court agreed, and that finding rendered defendant ineligible for the safety valve. The Ninth Circuit held that the plea agreement contemplated that the government would remain neutral with respect to matters that would affect the safety valve determination and that the government breached the plea agreement by arguing for a fact that would make it impossible for defendant to qualify for the safety valve. U.S. v. Franco-Lopez, 312 F.3d 984 (9th Cir. 2002).
9th Circuit rejects “clearly improbable” test for denying safety valve based on gun possession. (246) Once the government demonstrates that a defendant possessed a dangerous weapon under § 2D1.1(b)(1), the burden of proof is on the defendant to prove that it is “clearly improbable” that he possessed the weapon in connection with the offense. By contrast, a defendant need only show by a preponderance that he is eligible for the “safety valve” under § 5C1.2, and this includes showing that a weapon was not used in connection with the offense under § 5C1.2(2). In the present case, the judge applied the “clearly improbable” test in denying the safety valve. The Ninth Circuit held this was improper and reversed. U.S. v. Nelson, 222 F.3d 545 (9th Cir. 2000).
9th Circuit finds plea agreement obliged government not to oppose safety valve. (246) In the plea agreement, the government said it had a “good faith belief” that defendant was eligible for the safety valve under § 5C1.2 “based on information currently available.” Nevertheless, when the presentence report stated that defendant was not eligible because guns were found in the house near the drugs, the government offered the testimony of its case agent in opposition to the safety valve at sentencing. The Ninth Circuit held that the plea agreement required the government not to oppose defendant’s request for the safety valve. The government’s statements in the agreement encouraged defendant to believe that the safety valve would apply to his case, and “no facts were developed after the time of [defendant’s] plea which could have altered the government’s calculus and undercut its duty to perform under the agreement.” The government was aware of the guns at the time it entered into the plea agreement. U.S. v. Nelson, 222 F.3d 545 (9th Cir. 2000).
9th Circuit holds “safety valve” does not apply to conviction for selling drugs near school. (246) Agreeing with the Third and Eleventh Circuits, the Ninth Circuit held that the “safety valve” provision of 18 U.S.C. § 3553(f) does not apply when the defendant is convicted of possessing drugs with intent to distribute within 1000 feet of a school, in violation of 21 U.S.C. § 860. See U.S. v. McQuilkin, 78 F.3d 105, 109 (3rd Cir. 1996); U.S. v. Anderson, 200 F.3d 1344, 1348 (11th Cir. 2000). By its terms, § 3553(f) applies only to convictions under 21 U.S.C. §§ 841, 844, 846, 960 and 963. It does not matter that § 841 is a lesser-included offense of § 860. The panel rejected defendant’s argument that Congress may have believed that § 860 was just a “sentencing enhancement” for a violation of § 841, not a separate offense, noting that the Ninth Circuit and several other circuits have held that Congress intended the two offenses to be separate substantive offenses. See U.S. v. Crawford, 185 F.3d 1024, 1027 n.9 (9th Cir. 1999). The “rule of lenity” has no application here because “it is clear that § 841 and § 860 are separate substantive offenses.” U.S. v. Kakatin, 214 F.3d 1049 (9th Cir. 2000).
9th Circuit says inclusion of certain provisions in a statute implies the exclusion of others. (246) The Ninth Circuit held that it is a “general rule of statutory construction” that “ the inclusion of certain provisions in a statute implies the exclusion of others.” See Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169, 1177 (9th Cir. 1999). Thus, the court held that because 21 U.S.C. § 860 is not included in the list of statutes to which the “safety valve” applies, Congress intended to exclude § 860. U.S. v. Kakatin, 214 F.3d 1049 (9th Cir. 2000).
9th Circuit says increase for gun possession necessarily defeats “safety valve.” (246) Defendant grew marijuana in the mountains of Nevada. When he saw agents in the marijuana patch, he laid his backpack in the path and tried to hide. He had a semi-automatic pistol in the backpack. The trial court increased his sentence by two levels under § 2D1.1(b)(1) for possessing a firearm in a drug offense, and denied his request for “safety valve” credit under § 5C1.2 because he possessed a firearm “in connection with the offense.” On appeal, defendant did not challenge the increase under 2D1.1, but sought safety valve credit. The Ninth Circuit rejected the argument, noting that “every circuit to consider the issue has held that conduct which warrants an increase in sentence under § 2D1.1(b)(1) necessarily defeats application of the safety valve.” See U.S. v. Vasquez, 161 F.3d 909, 911-12 (5th Cir. 1998); U.S. v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996); cf. U.S. v. Burke, 91 F.3d 1052, 1053 (8th Cir. 1996) (equating “in connection with” for enhancement purposes under § 2K2.1(b)(5) with the phrase as used in the § 5C1.2 safety valve provision). U.S. v. Smith, 175 F.3d 1147 (9th Cir. 1999).
9th Circuit denies “safety valve” credit where defendant did not tell all he knew. (246) At the time of his arrest, defendant told DEA agents that Farias had told him to deliver the heroin. He added that Mendez and Sandoval had brought the heroin to him at the apartment after Farias left for work. Defendant then changed his story and told the agents that Mendez and Sandoval did not deliver the heroin, but that he found the heroin on the sofa at the apartment after Farias left for work. Because of defendant’s recantation, the district court found that he did not truthfully tell everything he knew. Therefore, he was not eligible for credit under the “safety valve” in §§ 2D1.1(b)(6) and 5C1.2. On appeal, the Ninth Circuit affirmed, finding that it was “plain from what he first blurted out to the DEA agents that he had an idea of who furnished the heroin.” Defendant’s “story of finding the heroin in the sofa rings false, as does his confinement of his confession to persons he knew were already implicated.” The Ninth Circuit distinguished U.S. v. Shrestha, 86 F.3d 935 (9th Cir. 1996) and U.S. v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996) on the ground that defendant’s recantation in this case cast doubt on his truthfulness. U.S. v. Lopez, 163 F.3d 1142 (9th Cir. 1998).
9th Circuit uses information from proffer session to deny safety valve and role. (246) The proffer agreement permitted the government to use information “to rebut any evidence offered by [defendant] in connection with . . . sentencing.” At sentencing, defendant did not introduce new “evidence” but he did rely on his own written statement about the offense of conviction that he provided to the probation officer that was part of the presentence report. The government countered with information that defendant had disclosed¾and what he hadn’t disclosed¾during the proffer session. The Ninth Circuit agreed with the district court that the government’s response was within the scope of the proffer agreement, because defendant’s statement was “evidence” which the government could “rebut” by showing that it was not a full and truthful disclosure of all information had concerning the offenses that were part of the same course of conduct. U.S. v. Miller, 151 F.3d 957 (9th Cir. 1998).
9th Circuit says “safety valve” requires information about relevant conduct, not just offense of conviction. (246) In U.S. v. Washman, 128 F.3d 1305 (9th Cir. 1997), the Ninth Circuit held that to qualify for the “safety valve” under 18 U.S.C. § 3553(f), a defendant must disclose all that he knows about relevant conduct, not just the offense of conviction. However, that case declined to address a statutory argument that Washman waived but defendant in this case made, i.e. that the use of the term “offense or offenses” limits the disclosure required to the offense of conviction. The Ninth Circuit rejected this statutory argument because § 3553(f)(5) on its face requires disclosure “concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” This plainly includes uncharged related conduct and therefore requires a defendant to disclose all information he has concerning offenses that were part of the same course of conduct, to be entitled to safety valve relief. U.S. v. Miller, 151 F.3d 957 (9th Cir. 1998).
9th Circuit reaffirms that resentencing on retroactive amendment did not allow “safety valve” credit. (246) Defendant obtained a reduction in his sentence for growing marijuana plants based on a retroactive amendment that reduced the marijuana equivalency from one kilogram per plant to one-tenth of a kilogram per plant. However, this reduced his sentence by only one month because he remained subject to a ten-year statutory minimum sentence. He argued that the district court should have applied the “safety valve” provision in 18 U.S.C. § 3553(f), even though it was enacted after his original sentence and is not retroactive. In its original opinion, 129 F.3d 1066 (9th Cir. 1997), the Ninth Circuit rejected the argument, refusing to “apply through the guidelines a retroactivity of the safety valve statute that is contrary to the plain words of that statute.” Moreover, the modification of defendant’s sentence pursuant to § 1B1.10(c) “does not amount to a new sentencing for the purposes of the safety valve statute.” In denying rehearing, the majority said they were bound by U.S. v. Mullanix, 99 F.3d 323 (9th Cir. 1996), even though two other circuits are to the contrary. U.S. v. Clark, 110 F.3d 15 (6th Cir. 1997) and U.S. v. Mihm, 134 F.3d 1353 (8th Cir. 1998). Judge Canby did not agree that Mullanix is controlling, and therefore would have granted rehearing. U.S. v. Stockdale, 139 F.3d 767 (9th Cir. 1998), amending 129 F.3d 1066 (9th Cir. 1997).
9th Circuit rules “safety valve” requires defendant to talk to prosecutor, not probation officer. (246) Defendant invoked his Miranda rights, and later refused a request to talk to a DEA agent. His plea agreement provided for a 37-month sentence, provided he was eligible for the “safety valve” reduction in 18 U.S.C. § 3553(f). In his presentence interview with the probation officer, defendant explained he had become involved through friends who were affiliated with a marijuana supplier named Lopez, and that Lopez had offered to pay him $5,000 to transport the load. The district court ruled that these statements did not qualify for the “safety valve” because 3553(f) requires defendant to talk to the “government,” and statements to the probation officer do not qualify. On appeal, the Ninth Circuit affirmed, holding that “government” means “the prosecutor.” The First and Fifth Circuits, in U.S. v. Jiminez Martinez, 83 F.3d 488, 495 (1st Cir. 1996) and U.S. v. Rodriguez, 60 F.3d 193 (5th Cir. 1905) have reached the same conclusion. U.S. v. Contreras, 136 F.3d 1245 (9th Cir. 1998).
9th Circuit says “safety valve” requires disclosure of unconvicted conduct despite self-incrimination claim. (246) In a 2-1 opinion, the Ninth Circuit held that 18 U.S.C. § 3553(f) requires a defendant to disclose information concerning conduct of which he has never been convicted in order to qualify for “safety valve” relief from a mandatory minimum sentence. The majority rejected defendant’s argument that this violated his Fifth Amendment right against self-incrimination, agreeing with the Seventh Circuit’s opinion in U.S. v. Arrington, 73 F.3d 144, 149 (7th Cir. 1996), that § 3553(f)(5) does not raise constitutional concern because it does not mete out additional punishment if a defendant decides not to disclose under § 3553(f)(5). The majority found this consistent with the intent of Congress “to remedy an inequity in the guidelines whereby more senior operatives could obtain lighter sentences than less culpable lower level operatives because the former had more information to offer than the latter so could benefit from the Substantial Assistance downward departure under USSG § 5K1.1.” Judge Norris dissented, arguing that despite the Sentencing Commission’s interpretation, the word “offense” in subsection (f)(5) was intended to require disclosure only of convicted conduct. U.S. v. Washman, 128 F.3d 1305 (9th Cir. 1997).
9th Circuit says offer to discuss involvement in return for a misdemeanor did not satisfy “safety valve.” (246) The safety valve, 18 U.S.C. § 3553(f)(5) requires that “not later than the time of the sentencing hearing,” the defendant must truthfully provide to the government all information and evidence the defendant has concerning the offense. In this case, defendant argued that he offered to discuss his involvement, apparently during bargaining for a misdemeanor plea. Since the government rejected his plea offer he did not provide the information. In these circumstances, the Ninth Circuit upheld the district court’s finding that defendant did not provide the information required by the safety valve statute. U.S. v. Otis, 127 F.3d 829 (9th Cir. 1997).
9th Circuit says “safety valve” does not supersede statutory ban on probation. (246) Defendant was convicted of cultivating more than 1,000 marijuana plants in violation of 21 U.S.C. § 841(a)(1). Section 841(b) prescribes the mandatory minimum prison term and also indicates the “notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph.” Defendant argued that the safety valve provision in 18 U.S.C. § 3553(f) “trumped” this prohibition on probation. The Ninth Circuit disagreed, holding that the safety valve only permits the judge to sentence below the mandatory minimum. It does not affect the statutory ban on probation. Defendant’s sentence of probation was reversed. U.S. v. Green, 105 F.3d 1321 (9th Cir. 1997).
9th Circuit says court may reject guilty verdict in applying “safety valve.” (246) The jury necessarily found by its verdict that defendant knew there were three kilograms of heroin concealed in the sides of the suitcase he was carrying. Defendant denied knowledge at trial and at sentencing, but the district court nevertheless found him eligible for the “safety valve” in §5C1.2. On appeal, the Ninth Circuit affirmed, holding that after Koon v. U.S., 116 S.Ct. 2035, 2050 (1996) “a district court may reconsider facts necessary to the jury verdict in determining whether to apply the safety valve provision of the guidelines.” Moreover, “we hold that where actual knowledge is judicially established by a guilty verdict for purposes of punishment and therefore is an incontrovertible fact, there is no need for a defendant to relate it back at sentencing.” Defendant had provided the government with substantial information, including the names of those involved abroad. Thus “only the truthfulness of [defendant’s] claimed ignorance regarding the hidden drugs is disputed,” and it was apparent that the district court believed defendant had shown, by a preponderance of the evidence, “that he was being truthful.” U.S. v. Sherpa, 97 F.3d 1239 (9th Cir. 1996).
9th Circuit remands where court failed to make findings in denying “safety valve.” (246) At sentencing, the court merely stated, “with the knowledge that the court has in this particular case, the court feels that the appropriate sentence is . . . [the] 60-month mandatory minimum.” The Ninth Circuit reversed, ruling that this was insufficient to permit meaningful appellate review. The district court “must provide reasons for agreeing or refusing to apply § 5C.12 [the safety valve] at the time of sentencing.” U.S. v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996).
9th Circuit says to be eligible for “safety valve,” defendant need not give information to particular government agent. (246) The Ninth Circuit disagreed with the government’s argument that defendant failed to provide information to the government merely because he did not discuss his involvement in the 1993 incident with the current prosecutor. “A defendant need not disclose information to any particular government agent to be eligible for relief under § 5C1.2.” Thus the fact that the current AUSA was not present when another AUSA de-briefed defendant in the 1993 incident was “not relevant” to the question of whether defendant provided information to the “government.” U.S. v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996).
9th Circuit says “safety valve” requires “complete candor.” (246) The Ninth Circuit agreed that § 5C1.2 requires “complete candor regarding the charged offense prior to sentencing.” The defendant must provide all information available to him, “regardless of whether it was useful or already known to the government. See 18 U.S.C. § 3553(f)(5). The defendant need not meet the requirements of the acceptance of responsibility section of the guidelines, but “he must truthfully supply details of his own culpability.” U.S. v. Shrestha, 86 F.3d 935 (9th Cir. 1996). Here, the case was remanded for the court to determine whether defendant had truthfully provided all information. U.S. v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996).
9th Circuit says court need not provide evidentiary hearing on truthfulness for “safety valve.” (246) Defendant argued that the district court should have conducted an evidentiary hearing to determine his truthfulness for purposes of applying the “safety valve” in guideline § 5C1.2. The Ninth Circuit held there is no general right to an evidentiary hearing at sentencing, and the district court has discretion to determine whether to hold such a hearing. Where a fact relevant to sentencing is disputed the district court must provide the parties a “reasonable opportunity” to present information to the court. See Fed. R. Crim. P. 32(c)(3)(A); see also U.S.S.G. § 6A1.3(a). On remand, the district court may hold an evidentiary hearing but any such hearing is discretionary, not mandatory. U.S. v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996).
9th Circuit says eligibility for “safety valve” does not depend on acceptance of responsibility. (246) When arrested, defendant admitted knowing he was carrying heroin. He gave the name of the man who gave him the heroin and a description of the person to whom he was to deliver it in New York. Thereafter, however, he pleaded not guilty and claimed at trial that he had no knowledge of the drugs. At sentencing, he did not recant his trial testimony. Nevertheless the district court reduced his sentence by two levels under the “safety valve,” U.S.S.G. § 5C1.2. The government appealed, and on appeal, the Ninth Circuit affirmed. The court rejected the government’s attempts to analogize the safety valve to the acceptance of responsibility provision, § 3E1.1. The court also rejected the government’s argument that defendant’s recantation of his guilty knowledge cast doubt on his original confession and that his perjury at trial should automatically defeat his claim that he truthfully provided to the government all information and evidence about the offense. “The safety valve statute is not concerned with sparing the government the trouble of preparing for and proceeding with trial.” The fact that defendant denied his guilty knowledge at trial and at sentencing did not render him ineligible for the safety valve. U.S. v. Shrestha, 86 F.3d 935 (9th Cir. 1996).
9th Circuit explains burden of proof in “safety valve” cases. (246) The Ninth Circuit held that the initial burden is on the defendant to demonstrate by a preponderance of the evidence that he is eligible for the “safety valve.” U.S. v. Howard, 894 F.2d 1085, 1089-90 (9th Cir. 1990). “Once he has made this showing however, it falls to the government to show that the information he has supplied is untrue or incomplete.” Here, the government failed to meet that burden. U.S. v. Shrestha, 86 F.3d 935 (9th Cir. 1996).
9th Circuit says government reserved right to oppose “safety valve” credit in plea agreement. (246) In the plea agreement, the government reserved the right to argue that the “safety valve” was inapplicable “based on the criteria set forth therein,” including the right to argue that defendant had an aggravating role despite the government’s agreement not to seek a leadership enhancement. Defendant argued that agreement not to seek a leadership enhancement prevented the government from arguing the fifth prong of the safety valve, i.e. that defendant truthfully provided all information to the government. The Ninth Circuit rejected the argument, ruling that the language of the plea agreement was not ambiguous, and clearly allowed the government to oppose the application of the safety valve on all grounds. The government did not breach the plea agreement. U.S. v. Ajugwo, 82 F. 3d 925 (9th Cir. 1996).
9th Circuit says defendant has burden of proving qualification for “safety valve.” (246) The Ninth Circuit held that the defendant has the burden of proving, by a preponderance of the evidence, that she qualifies for the safety valve provision. This is consistent with the general rule that the burden of proof at sentencing is on the party seeking to adjust the offense level. Here, defendant’s bare assertion that she had provided all the relevant information to the government because she “had at least two meetings with the government” was not a preponderance of the evidence. Moreover, the district court could properly consider information learned from other sources which indicated that defendant had been less than forthcoming. U.S. v. Ajugwo, 82 F. 3d 925 (9th Cir. 1996).
9th Circuit says defendant must reveal source of drugs to qualify for “safety valve.” (246) The district court refused to apply the “safety valve” provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, because it found that, by refusing to reveal the source of the methamphetamine, defendant failed to fulfill the requirement of subsection 5—to provide the government with all the information and evidence he had concerning the offense. The court therefore sentenced defendant to the mandatory minimum sentence. On appeal, the Ninth Circuit affirmed, holding that the statute requires the defendant to reveal all the information he has concerning the offense “including the name of the source of the drugs.” The court said this is consistent with U.S. v. Arrington, 73 F.3d 144, 148 (7th Cir. 1996); U.S. v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995), and U.S. v. Buffington, 879 F.Supp. 1220, 1222 (N.D. Ga. 1995). The court rejected defendant’s argument that this interpretation of § 5C1.2 confused the safety valve provision with the substantial assistance provision in § 5K1.1. U.S. v. Thompson, 81 F.3d 877 (9th Cir. 1996).
9th Circuit finds “safety valve” inapplicable despite downward criminal history departure. (246) The “safety valve,” 18 U.S.C. § 3553(f) and guideline § 5C1.2, permit a sentence below a statutory mandatory minimum if the defendant has no more than one criminal history point, and meets certain other criteria. Defendant argued that he was eligible for the “safety valve,” because the district court granted him a downward departure from criminal history category II to category I pursuant to guideline § 4A1.3. The Ninth Circuit found this argument contrary to the plain language of § 3553(f). That section expressly precludes application of the safety valve to defendants who have more than one criminal history point. U.S. v. Valencia-Andrade, 72 F.3d 770 (9th Cir. 1995).
9th Circuit says “safety valve” applies only to defendants sentenced after Sept. 23, 1994. (246) Section 80001(a) of the Violent Crime Control and Law Enforcement Act of 1994 provides a “safety valve” from the statutory mandatory minimum for defendants who meet five criteria. The statute applies “to all sentences imposed on or after the 10th day beginning after the date of enactment of this act.” See Pub. L. No. 103-322, §80001(c), 108 Stat. 1796, 1986 (1994) (codified at 18 U.S.C. § 3553, and added to the guidelines as § 5C1.2. The Act was signed on September 13, 1994, so the effective date of the “safety valve” was ten days later on September 23, 1994. Since defendant’s sentence was imposed before the effective date of the act, he was not entitled to the “safety valve” relief. U.S. v. Rodriguez-Lopez, 63 F.3d 892 (9th Cir. 1995).
10th Circuit says court not required to consider safety valve disclosures made during sentencing. (246) Defendants were convicted of drug charges with 10-year mandatory minimum sentences. The district court found that neither defendant qualified for safety valve relief because neither satisfied the disclosure requirement. The Tenth Circuit found that the district court did not err in refusing to allow defendants to make further disclosures after the sentencing hearing commenced. First, the resolution of disputes relating to the debriefing process is within the sound discretion of the district court. The court may determine whether a defendant should be allowed more than one debriefing session. Generally, disclosures for safety valve purposes are timely only if they occur before the sentencing hearing. Requiring the government to wait until the middle of a sentencing hearing to obtain such information conflicts with the government’s interest in full and truthful disclosures from defendants, and forces the government to conduct further investigation to determine the truthfulness of the disclosures. U.S. v. Galvon-Manzo, 642 F.3d 1260 (10th Cir. 2011).
10th Circuit rejects minor role and safety valve claims for meth dealer. (246) Defendant was convicted of two counts related to dealing in methamphetamine. She argued that the court should have granted her a “safety valve” departure from the mandatory minimum sentence and that her offense level should have been lowered because she was only a minimal participant in the conspiracy. The Tenth Circuit rejected both claims. The record as a whole did not support her claim of being a minor participant. There was testimony that defendant was calling for drugs several times a day in one two-week period. There was evidence she helped “round up” funds with which to buy quantities of meth for those at a higher level in the conspiracy and that she was re-selling at least some of the meth she purchased. As for the safety valve protection, the judge found that defendant did not satisfy the information requirement. This finding followed defendant’s testimony at sentencing. In her testimony, defendant continued to deny any involvement in the crimes for which she had been found guilty and maintained her innocence. U.S. v. Allen, 603 F.3d 1202 (10th Cir. 2010).
10th Circuit allows court to consider trial testimony in determining whether defendant qualified for safety valve. (246) Defendant argued that he fulfilled the information requirements of the safety valve provision in § 5C1.2(a)(5) by testifying at trial, because he provided the government with “all information and evidence” he had concerning his drug trafficking crime. The district court found that trial testimony alone can never support safety-valve consideration and denied defendant’s request. The Tenth Circuit held that a district court is not categorically precluded from considering a defendant’s trial testimony in determining whether he qualifies for safety valve adjustment. Most often a defendant’s trial testimony includes a denial of the essential factual elements of guilt and directly conflicts with the jury’s finding of guilt. Here, however, defendant’s testimony primarily sought to convince the jury that while he knew he possessed marijuana, he did not know that he possessed methamphetamine. Thus, it was possible that a fact-finder could believe defendant’s testimony without contradicting the conviction. On remand, the burden remained on defendant to establish his eligibility for the reduction by a preponderance of the evidence. U.S. v. De La Torre, 599 F.3d 1198 (10th Cir. 2010).
10th Circuit says nunc pro tunc order did not make defendant eligible for safety valve. (246) In 2007, defendant pled guilty to drug charges. His PSR assigned him one criminal history for a California misdemeanor conviction, and two criminal history points for having committed the instant drug offense while on probation. With three criminal history points, defendant was ineligible for safety valve protection. Before sentencing, defendant obtained a nunc pro tunc order from a state court terminating his probation as of September 30, 2007. The district court found that defendant’s action in shortening his probationary period for reasons unrelated to his innocence or errors of law was not a valid basis for excluding the prior sentences from his criminal history. The Tenth Circuit agreed. Section 4A1.2(j) directs courts not to count “expunged” convictions, but the application notes say that convictions set aside for reasons unrelated to innocence or errors of law are to be counted. The district court correctly found that defendant was not eligible for safety valve protection. U.S. v. Pech-Aboytes, 562 F.3d 1234 (10th Cir. 2009).
10th Circuit holds that letter stating that defendant was willing to provide additional information did not satisfy safety valve. (246) Subsection (a)(5) of the safety valve provision requires the defendant to “truthfully provide[] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or part of a common scheme or plan.” In an attempt to satisfy this requirement, defendant provided the government with a “proffer letter” describing his drug-smuggling trip to Arizona. The letter also stated that defendant was willing to provide additional information if the Government deemed the proffer insufficient to satisfy the safety valve disclosure requirement. The Tenth Circuit held that the letter stating that defendant was willing to provide additional information did not satisfy the safety valve’s disclosure requirements. First, the letter itself was insufficient because it did not include a complete admission of defendant’s relevant conduct. When the offense involves conspiracy or a jointly undertaken criminal venture, the defendant must disclose not only everything he knows about his own actions, but also everything he knows about his co-conspirators. Defendant’s offer to provide additional information upon the Government’s request did not satisfy the disclosure requirement. The government does not have an obligation to seek information from defendant despite his offer to provide additional information. The subsection plainly requires an affirmative act by the defendant truthfully disclosing all the information he possesses, and this duty cannot be met by only disclosing some information and making the rest available at the request of the government. U.S. v. Stephenson, 452 F.3d 1173 (10th Cir. 2006).
10th Circuit holds that weapon possession for § 2D1.1(b)(1) purposes did not bar safety valve relief. (246) Searching the home of a murder victim, police found drugs, five firearms and cash. A loaded handgun was found in the bedroom where defendant, who had spent the night, was lodging. He admitted selling drugs for the murder victim, and stipulated in his plea agreement that a § 2D1.1(b)(1) enhancement for possession of a firearm was appropriate. The Tenth Circuit held that the court’s finding that defendant possessed a dangerous weapon for purposes of § 2D1.1(b)(1) did not bar him from receiving safety valve protection under § 5C1.2. Although a defendant who “possess[es]” a firearm “in connection with the offense” is ineligible for safety valve protection, the word “possessed” is used in two different senses in the two different provisions. Under § 2D1.1(b)(1), the government need only show that the weapon was found at the same location where drugs were stored, while § 5C1.2(2) is written in the active voice, mandating that possession be “in connection with the offense.” Thus, the scope of activity covered by § 2D1.1 is broader than the scope of activity covered by § 5C1.2. U.S. v. Zavala-Rodriguez, 379 F.3d 1182 (10th Cir. 2004).
10th Circuit denies safety valve to defendant who provided incomplete and contradictory information. (246) In order to satisfy the information requirement of the safety valve provision, U.S.S.G. § 5C1.2(5), a defendant must disclose “everything [he] knows about his own actions and those of his co-conspirators.” U.S. v. Roman-Zarate, 115 F.3d 778, 784 (10th Cir. 1997). Defendant challenged the denial of safety valve protection, contending that the government presented no evidence that the information he provided concerning the cocaine distribution scheme was “incomplete.” However, the burden is on the defendant who seeks a reduction under § 5C1.2 to prove entitlement to it. Defendant did not meet this burden, and the Tenth Circuit upheld the denial of the reduction. One officer who interviewed defendant testified that defendant several times refused to provide information when asked, and much of the information he did provide about the distribution scheme turned out to be incomplete or contradictory. U.S. v. Salazar-Samaniega, 361 F.3d 1271 (10th Cir. 2004).
10th Circuit rejects safety valve reduction to defendant who gave affidavit in direct contradiction to guilty plea. (246) The district court found that defendant did not qualify for safety valve protection because he failed to provide any useful information in his affidavit about his co-conspirators. See U.S.S.G. § 5C1.2(a)(5) and 18 U.S.C. § 3553(f)(5). The Tenth Circuit held that this finding was not clearly erroneous. For example, defendant’s affidavit explained that he was involved in the conspiracy, however, he denied being involved with any other drugs but methamphetamine. This statement was in direct contradiction with his guilty plea of conspiracy to possess with the intent to distribute cocaine. U.S. v. Virgen-Chavarin, 350 F.3d 1122 (10th Cir. 2003).
10th Circuit holds that another’s gun possession does not bar safety valve unless defendant induced possession. (246) In order to receive safety valve protection under 18 U.S.C. 3553(a) and USSG § 5C1.2, “the defendant [must] not … possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.” In U.S. v. Hallum, 103 F.3d 87 (10th Cir. 1997), a Tenth Circuit panel held that a defendant’s possession of a firearm under USSG § 5C1.2 could be established by another person’s reasonably foreseeable possession of a firearm in furtherance of joint criminal activity. However, Application Note 4 to § 5C1.2 states that “the term ‘defendant’ … limits the accountability of the defendant to his own conduct and conduct that he aided and abetted, counseled, commanded, induced, procured, or willfully caused.” This language mirrors the definition of relevant conduct in USSG § 1B1.3(a)(1)(A). Noticeably absent is any language similar to the second definition of relevant conduct in subsection (1)(B) which discusses the acts of others acting in concert with the defendant. Thus, other circuits have rejected Hallum’s interpretation of § 5C1.2. Following the other circuits, the Tenth Circuit held that a joint criminal actor’s firearm possession is not attributable to a defendant for safety valve purposes unless the defendant induced such possession in accordance with Note 4 to § 5C1.2. This opinion was circulated to the en banc court and the court voted unanimously to overrule Hallum to the extent it was inconsistent with this rule. U.S. v. Pena-Sarabia, 297 F.3d 983 (10th Cir. 2002).
10th Circuit holds safety valve reduction does not apply to sentences under §§ 2D1.11 and 2S1.1. (246) A defendant sentenced under § 2D1.1 who meets the five criteria listed in the safety valve provision of § 5C1.2 shall receive a two-level reduction if the defendant has an offense level of 26 or greater. See § 2D1.1(b)(6). Although defendant met the five criteria, the Tenth Circuit ruled that she was not eligible for the § 2D1.1(b)(6) reduction because she was sentenced under §§ 2D1.11 and § 2S1.1, not § 2D1.1. Defendant did not fall within § 2D1.11’s cross-reference to § 2D1.1 because her offense did not involve manufacturing a controlled substance. Defendant also was not eligible for safety valve protection under § 5C1.2, which applies to offenses under 21 U.S.C. § 841, § 844, § 835, § 960, or § 963. An offense under the money laundering statute, 21 U.S.C. § 1956(c), is not among those listed within § 5C1.2. Although defendant also was convicted of an offense under § 841(d)(2), that offense did not carry a statutory minimum. U.S. v. Saffo, 227 F.3d 1260 (10th Cir. 2000).
10th Circuit holds that lie about cocaine source precluded safety valve reduction. (246) Defendant pled guilty to cocaine conspiracy charges, and sought a two-level decrease under § 2D1.1(b)(6), which applies to certain defendants who meet the criteria set forth in § 5C1.2, the safety valve provision. The district court found he was ineligible for the reduction because he falsely claimed that he obtained the cocaine from an individual named Ernesto Garbonio. The Tenth Circuit held that because § 5C1.2 and § 2D1.1(b)(6) are “inexorably interwoven,” a defendant has the burden of demonstrating that he qualifies for the § 2D1.1(b)(6) reduction. A defendant can satisfy his burden under § 2D1.1(b)(6) by demonstrating by a preponderance of the evidence that he meets the criteria set forth in § 5C1.2. Defendant did not meet that burden. The sole factual issue at sentencing was whether defendant lied when he identified Garbonio as the source of the cocaine. By overruling defendant’s objections to the PSR, the district court necessarily found that defendant had lied about Garbonio. This finding was corroborated by the testimony of a co-conspirator at sentencing. Thus, the district court did not commit clear error in finding that defendant lied about the source of the cocaine. This factual finding “fatally undermine[d]” defendant’s contention that he truthfully provided investigators with all information he had concerning the offense of conviction. U.S. v. Patron-Montano, 223 F.3d 1184 (10th Cir. 2000).
10th Circuit holds that downward departure cannot make defendant eligible for safety valve protection. (246) Defendant had four criminal history points and thus fell within criminal history category III. The district court departed to category II, stating that it would have departed to category I if doing so would have triggered the safety valve provision and permitted the court to sentence defendant below the mandatory minimum. A defendant with more than one criminal history point is ineligible for safety valve protection. USSG § 5C1.2(1). The Tenth Circuit ruled that eligibility for safety valve protection may not be based on a defendant’s reduced criminal history category after a § 4A1.3 downward departure. Section 4A1.3 does not authorize a court to add or subtract criminal history points from a defendant’s record. Rather, it permits the court to use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. In addition, the commentary to the safety valve provision in § 5C1.2 clearly states that “more than one criminal history point” means criminal history points “as determined under § 4A1.1.” U.S. v. Owensby, 188 F.3d 1244 (10th Cir. 1999).
10th Circuit denies safety valve reduction to defendant who minimized role in the offense. (246) Defendant was convicted of drug conspiracy charges. The Tenth Circuit held that because defendant minimized his role in the offense, he did not satisfy the information requirement of the safety valve provision. Defendant insisted he was too drunk on one occasion to knowingly participate in a drug deal or be aware of the contents of a bag. His written statement that he had consumed 10-12 beers conflicted with his trial testimony that he drank as many as 25 beers. Both of these claims belied the lucidity he displayed at the time of arrest. Moreover, he denied knowing a co-conspirator’s name or conversing with him prior to the drug transaction. Although the safety valve does not have the same standard as the acceptance of responsibility provision, § 3553(f)(5) goes beyond merely barring the defendant from denying the offense of conviction. Under the safety valve provision, a defendant must volunteer all he knows, including facts beyond the basic elements of the crime. U.S. v. Gonzalez-Montoya, 161 F.3d 643 (10th Cir. 1998).
10th Circuit requires court to evaluate defendant’s information for safety valve. (246) Defendant requested safety valve protection under § 5C1.2. However, the district court refused to make a finding on whether defendant had satisfied the information requirement in § 5C1.2(5), stating that it was “not well equipped with all the information furnished to make a finding under Subsection 5.” In response to defense counsel’s question on whether the court had found that defendant had not complied with subsection 5, the court responded “No…. I made a finding the information that you have furnished me is insufficient to justify an affirmative finding. It’s a question of evidence as to the completeness and as to the truthfulness.” The Tenth Circuit held that the district court erred in refusing to evaluate and make a finding as to whether the information satisfied the safety valve provision. The court must determine the quality and completeness of all information furnished to the government by the defendant. Moreover, defendant’s attempt to furnish information to the court and the government in the judge’s chambers before the sentencing hearing was not “too late.” U.S. v. Gama-Bastidas, 142 F.3d 1233 (10th Cir. 1998).
10th Circuit holds marijuana amendment did not allow reduction below statutory minimum. (246) Defendant pled guilty to manufacturing more than 100 marijuana plants. He later moved under 18 U.S.C. § 3582 to reduce his sentence based on his medical condition and retroactive amendment 516, which altered the drug equivalencies for marijuana plants. The district court denied the motion, because defendant had been sentenced under a statutory minimum sentence rather than the guidelines. Defendant then filed a motion under § 3553(b), claiming that the district court was permitted to depart from the mandatory minimum under the “safety valve” provision of § 3553(f) and that his medical condition warranted a reduction under § 3553(b). The Tenth Circuit held that defendant was not entitled to resentencing. Section 3582(c)(1)(A), which arguably might support a modification based on defendant’s medical condition, required a motion by the Director of the Bureau of Prisons. Section 3583(c)(1)(B) only permits the modification of a sentence where a statute expressly provides for a reduction of an earlier sentence. The lowering of the guideline range did not affect the mandatory minimum sentence, and the “safety valve” in § 3553(f) had not yet been enacted when defendant pled guilty. U.S. v. Smartt, 129 F.3d 539 (10th Cir. 1997).
10th Circuit rejects safety valve where defendant failed to disclose details of drug operation. (246) The district court refused to grant defendant safety valve protection because he had not provided the government with all of the details of his drug transaction. Three DEA agents testified at sentencing that defendant had failed to fully disclose details such as the name of his courier and his contacts in the town where he was delivering drugs. Defendant defended his limited cooperation on the ground that complete disclosure would have endangered his life. The Tenth Circuit rejected safety valve protection based on defendant’s failure to fully disclose the details of his drug operation. Defendant was entitled not to reveal the names of his drug couriers or contacts because he was afraid of them. However, if he does not, he is not entitled to special treatment from the court. U.S. v. Roman-Zarate, 115 F.3d 778 (10th Cir. 1997).
10th Circuit says “safety valve” is mandatory if defendant meets all five criteria. (246) Police found a substantial marijuana growing operation in the attic of defendant’s house. The district court sentenced defendant to the mandatory minimum of 60 months, holding it had discretion not to give a qualified defendant “safety valve” protection under 18 U.S.C. § 3553(f) and guideline § 5C1.2. The Tenth Circuit held that the safety valve provision is mandatory if the defendant meets all five of the criteria listed in § 3553(f). The statute directs a court to disregard the statutory minimum if the defendant meets the five criteria. The word “shall” indicates a mandatory intent. However, the sentence was still proper because defendant did not meet section 5 of the safety valve provision, which required him to disclose all information and evidence concerning the offense. Defendant informed the police about his own actions, but refused to provide information concerning his buyers or others connected to the operation. Although defendant did not believe the information would be helpful, section 5 requires disclosure whether or not relevant or helpful to the government. U.S. v. Myers, 106 F.3d 936 (10th Cir. 1997).
10th Circuit holds defendant has burden to show eligibility for “safety valve.” (246) Defendant was convicted of drug charges. She argued that she qualified for “safety valve” protection under 18 U.S.C. § 3553(f) and § 5C1.2. The Tenth Circuit held that a defendant has the burden of proving entitlement to “safety valve” protection. Here, defendant did not show that she provided the government with sufficient information about her offense. At the sentencing hearing, defendant was given the opportunity to comment on her knowledge of the crime and of other participants, and she declined to do so. Although at sentencing she denied knowing about the crime, she previously made a statement indicating her knowledge of the drug activity at her house. There was reason to believe that defendant had undisclosed information about the offense. U.S. v. Verners, 103 F.3d 108 (10th Cir. 1996).
10th Circuit finds gun’s proximity was enough to bar “safety valve” protection. (246) Defendants were arrested as they carried duffel bags containing marijuana from a rural marijuana patch to their vehicles. Police also found a .22 rifle in one vehicle. One defendant testified that he brought the rifle to shoot snakes, and that while he could have used it to protect against another person, he did not have that intention. The district court found defendants ineligible for “safety valve” protection under § 5C1.2 because the gun was close to the marijuana cultivation. It was not “clearly improbable” that the weapon was possessed in connection with the marijuana offense. Defendants argued that § 2D1.1(b)(1)’s “clearly improbable” standard was incorrectly referenced, and that the burden was on the government to prove that the gun was used “in connection with” the offense. The Tenth Circuit held that the gun’s proximity and potential to facilitate the offense was enough to bar application of § 5C1.2. The burden is on a defendant who seeks a reduction in sentence under § 5C1.2 to prove entitlement to it. U.S. v. Hallum, 103 F.3d 87 (10th Cir. 1996).
10th Circuit says failure to delay sentencing until “safety valve” became law was not ineffective assistance. (246) At the time of sentencing, defendant was subject to a mandatory minimum 20-year sentence. He argued that his counsel was ineffective in not seeking a continuance until the effective date of the “safety valve,” 18 U.S.C. § 3553(f), [guideline § 5C1.2], which permits a sentence below the statutory minimum if the defendant meets certain criteria. The Tenth Circuit held that counsel’s failure to seek the continuance was not unreasonable. At the time of sentencing, it was unclear whether the “safety valve” would be enacted by Congress. Clairvoyance is not a required attribute of effective representation. Defendant’s theory would require attorneys to attempt to delay sentencing each time lawmakers debate a new statute or amendment. U.S. v. Gonzalez-Lerma, 71 F.3d 1537 (10th Cir. 1995), overruled on other grounds by U.S. v. Flowers, 464 F.3d 1127 (10th Cir. 2006).
10th Circuit reverses “safety valve” relief where defendant did not reveal identities and acts of others. (246) Defendant pled guilty to drug charges, but refused to cooperate with the government. He did, however, provide the government with a letter describing his own involvement in the conspiracy. The district court found that defendant qualified for relief from the mandatory minimum sentence, under the “safety valve,” 18 U.S.C. § 3553(f). The Tenth Circuit reversed, holding that § 3553(f)(5) requires a defendant to tell the government all he knows about the offense of conviction and relevant conduct, including the identities and participation of others. The phrase “all information and evidence” is broad, and includes the acts of others if the offense of conviction is a conspiracy or other joint activity. This interpretation does not make § 5K1.1 redundant. Section 5K1.1 requires a government motion and the government’s evaluation of defendant’s assistance. In contrast, under § 3553(f), and § 5C1.2, the court determines whether a defendant has complied with its provisions. U.S. v. Acosta-Olivas, 71 F.3d 375 (10th Cir. 1995).
11th Circuit says firearm increase does not automatically bar safety valve relief. (246) One of the criteria for safety valve relief under 18 U.S.C. 3553(f) and U.S.S.G. § 5C1.2 is that the defendant “not … possess a firearm … in connection with the offense.” The Eleventh Circuit held that not all defendants who receive a § 2D1.1(b)(1) firearm enhancement are precluded from safety valve relief. Section 2D1.1 imposes an enhancement if “a weapon was possessed,” not if “a weapon was possessed in connection with the offense.” Where a firearm was possessed by the defendant personally, and the defendant also seeks safety valve protection, the district court must determine whether there is a connection between the firearm and the offense. The panel held that a defendant possesses a firearm “in connection with a drug offense” if the firearm is in proximity to drugs or if the firearm facilitated the drug offense, whether by emboldening an actor, by serving as an integral part of a drug transaction, by instilling confidence in others, or serving as a “badge of office.” A “connection” is shown by less evidentiary proof than is required to show possession “in furtherance of” a drug offense. U.S. v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013).
11th Circuit says drug offenses on high seas are not eligible for safety valve. (246) Defendant pled guilty to committing drug offenses on the high seas, in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) & (b), and penalized under 21 U.S.C. § 960(b)(1)(B)(ii). His guideline sentence range would normally have been 108-135 months. However, § 960(b)(1)(B) (ii) provided for a 10-year mandatory minimum, so defendant’s guideline range became 120-135 months. Defendant argued that he should have been sentenced below the mandatory minimum under the safety valve provision, 18 U.S.C. § 3553(f). The Eleventh Circuit held that defendant’s offenses did not qualify for safety valve relief. By its terms, the safety valve applies only to convictions for five specified offenses: 21 U.S.C. § 841, § 844, § 846, § 960, and § 963. “The selection of these five statutes reflects an intent to exclude others[.]” Although the safety valve statute, § 3553(f), references § 960, it refers to “an offense under” § 960, not to an “offense penalized under” § 960. U.S. v. Pertuz-Pertuz, 679 F.3d 1327 (11th Cir. 2012).
11th Circuit bars safety-valve relief in sentence-modification proceedings. (246) Defendant was convicted of crack cocaine offenses that subjected her to a statutory minimum sentence of 120 months. The district court sentenced her to 121 months, at the bottom end of her advisory guideline range. Later, based on the recent amendment to the crack cocaine guidelines, the court reduced the sentence to 120 months. Defendant appealed, arguing that the district court should have determined her eligibility for safety valve relief because the bottom end of her new guideline range (97 months) was below the statutory minimum. The Eleventh Circuit disagreed, holding that the safety valve does not apply to sentence-modification proceedings, so the district court could not sentence below the 120-month mandatory minimum. The applicable policy statement, § 1B1.10(b)(1), says the court “shall substitute only the [pertinent] amendments listed … and shall leave all other guideline application decisions unaffected.” U.S. v. Jackson, 613 F.3d 1305 (11th Cir. 2010).
11th Circuit holds that safety valve protection is not discretionary. (246) Defendant pled guilty to drug charges that subjected him to a mandatory minimum sentence of 120 months under 21 U.S.C. § 841(a)(1). The PSR recommended a sentence within the advisory guideline range of 70-87 months because defendant satisfied the criteria for safety valve protection in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The government did not object to this recommendation. The district court, however, stated that although defendant met the five criteria for safety valve protection, its application was discretionary, not mandatory. The court decided not to accept the safety valve “recommendation,” and imposed a 120-month sentence. The Eleventh Circuit disagreed, holding that the safety valve provision is not discretionary; its terms are plainly mandatory. When the requirements of § 3553(f) are met, if a defendant has an advisory guidelines range lower than an otherwise applicable mandatory minimum, he must be given the benefit of the guideline range in arriving at the advisory guideline range. Of course, since the guidelines are advisory, a court may still vary upward to and even past the mandatory minimum point after considering the § 3553(a) factors. U.S. v. Quirante, 486 F.3d 1273 (11th Cir. 2007).
11th Circuit holds that government is not required to solicit information from defendant for safety valve purposes. (246) Defendant admitted that he did not satisfy the information requirement in the safety valve provision that he truthfully provide to the government all information and evidence he had concerning the offense. See 8 U.S.C. § 3553(f)(5). However, he asserted that he was willing to, and the government made it impossible or impractical for him to proffer such information and evidence. The Eleventh Circuit agreed with other circuits holding that the government is under no obligation to solicit information from defendants who seek to satisfy the § 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5) requirement to provide information. Acting in good faith is not sufficient – the defendant is still required to come forward and truthfully supply all information that he possessed about his involvement in the offense. U.S. v. Milkintas, 470 F.3d 1339 (11th Cir. 2006).
11th Circuit holds that firearm acquittal did not prevent court from finding defendant possessed gun for safety valve purposes. (246) A jury convicted defendant of various drug-related offenses, but acquitted him of possessing a firearm in connection with a drug trafficking offense. The district judge believed that defendant in fact possessed a firearm both in furtherance and in connection with the drug trafficking offense, but found that the jury verdict precluded him from denying defendant safety valve protection, 18 U.S.C. § 3553(f). The Eleventh Circuit held that the jury’s firearm acquittal did not preclude the district court from denying defendant safety valve relief based on its finding, by a preponderance of the evidence, that defendant did in fact possess a firearm in connection with the offense. Booker does not prevent district courts from considering acquitted conduct at sentencing so long as the sentence imposed does not exceed the statutory maximum authorized by the jury’s verdict. There is no requirement in § 3553(f) that the jury make findings beyond a reasonable doubt with regard to the five prerequisites for application of the safety valve. U.S. v. Poyato, 454 F.3d 1295 (11th Cir. 2006).
11th Circuit says court may continue sentencing to give defendant more opportunity to comply with safety valve. (246) The only issue was whether defendant satisfied the temporal requirement of the safety valve provision contained in § 5C1.2 (a)(5), i.e. whether he provided full and complete information “not later than the time of the sentencing hearing.” At sentencing, when it became apparent to defendant that he had not completely debriefed to the satisfaction of the government, he moved for a continuance of the sentencing. The Eleventh Circuit found that the district court had the discretion to grant a continuance, and that defendant’s circumstances warranted a continuance. First, defendant, a first-time drug offender, did not speak English, and all translation at the initial debriefing was performed by an agent rather than an independent translator. Second, his counsel erroneously believed that defendant had already made a sufficient statement to qualify for the safety-valve and that he had been assured by the government agents that they would follow-up with additional debriefings. Finally, there was no evidence that defendant’s failure to fully debrief prior to the commencement of the sentencing hearing was an attempt to mislead, manipulate, stall or delay. Defendant’s failure to fully disclose prior to the commencement of sentencing was due to a misunderstanding and not in disregard for the requirements of § 5C1.2. U.S. v. Garcia, 405 F.3d 1260 (11th Cir. 2005).
11th Circuit holds that safety valve required marijuana grower to give information about distribution. (246) Defendant pled guilty to cultivating marijuana after police seized 273 live marijuana plants from his residence. At a debriefing session, he gave authorities a detailed analysis of cultivating marijuana, but refused to tell them what he had planned to do with the marijuana he had been cultivating. He argued that he satisfied the full disclosure requirement of the safety valve provision, 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, because the information about distribution was unrelated to his offense of cultivation, and that the scope of information he was required to disclose was related solely to the crime of cultivation. The Eleventh Circuit disagreed. Given the large number of plants, the district court reasonably inferred that defendant was growing marijuana for distribution. The district court properly found that information about the intended distribution related to defendant’s offense of conviction. Thus, the court did not err by finding that defendant failed to satisfy the full scope of disclosure required by the safety valve requirement. U.S. v. Johnson, 375 F.3d 1300 (11th Cir. 2004).
11th Circuit denies safety valve where there was conflicting evidence about defendant’s cooperation. (246) The district court, after holding an evidentiary hearing, concluded that defendant was not truthful during his debriefing with law enforcement. Thus, the court refused to apply the “safety valve” provision. Given that the court was faced with conflicting evidence about whether defendant cooperated fully with arresting officers, the Eleventh Circuit ruled that the district court did not err in finding that defendant was not entitled to safety valve relief. There was no error in the court’s evaluation of defendant’s demeanor and testimony, nor in its conclusion that defendant did not satisfy his burden of persuasion to convince the court that he had provided truthful and complete information. U.S. v. Acosta, 287 F.3d 1034 (11th Cir. 2002).
11th Circuit holds that previous lies and omission did not bar defendant from safety valve protection. (246) During his initial proffer to DEA agents regarding his involvement in the sale of cocaine, defendant did not truthfully disclose the source of the cocaine. However, on the morning of defendant’s sentencing hearing, defendant met with the prosecutor and case agent and disclosed that co-defendant Wright was the source of the cocaine. However, the district court held that defendant did not meet the information requirement of the safety valve provision, 18 U.S.C. 3553(f) and USSG § 5C1.2(5). The Eleventh Circuit held that a defendant’s past lies and omissions do not automatically disqualify him from safety valve relief so long as the defendant makes a complete and truthful proffer not later than the commencement of the sentencing hearing. Defendant made full disclosure the morning of the sentencing hearing; therefore his disclosure was timely. However, a defendant’s prior lies are not completely irrelevant. The evidence of his lies becomes “part of the total mix of evidence for the district court to consider in evaluating the completeness and truthfulness of the defendant’s proffer.” U.S. v. Brownlee, 204 F.3d 1302 (11th Cir. 2000).
11th Circuit rejects safety valve for defendant convicted under schoolyard statute. (246) By its terms, the safety valve provision in § 5C1.2 applies only to convictions under five specified statutes: 21 U.S.C. §§ 841, 844, 846, 960 and 963. Defendant violated the so-called “schoolyard statute,” 21 U.S.C. § 860, by possessing with intent to distribute crack within 1000 feet of a public elementary school. He argued that, even though § 860 does not itself trigger the “safety valve” provision, he was also convicted under § 841 and thus was entitled to safety valve protection. Section 841(a)(1) is a lesser-included offense of § 860. See U.S. v. Freyre-Lazaro, 3 F.3d 1496 (11th Cir. 1993). The Eleventh Circuit held that a defendant convicted and sentenced for violating § 860 is not eligible for safety valve protection, even though the § 860 violation was predicated on and necessarily included a § 841(a) violation. U.S. v. Anderson, 200 F.3d 1344 (11th Cir. 2000).
11th Circuit rejects safety valve even if withheld information would not have aided prosecution. (246) The district court granted defendant safety valve protection, despite the fact that it found her disclosures incomplete and untruthful. However, the court took pains to point out that it did not believe defendant had more information regarding “who was in charge of th[e] importation … where the drugs came from … [or] who was up the line in th[e] operation.” The Eleventh Circuit held that the safety valve provision requires full and truthful disclosure of all information and evidence concerning the offense; the provision may not be applied merely because the information a defendant chooses to withhold or misrepresent would not, if disclosed, be of use to the government. The guideline does state that “the fact that the defendant has no relevant or useful other information to provide … shall not preclude a determination by the court that the defendant has complied with this requirement.” However, this language merely makes clear that the information disclosed to the government need not be helpful before the safety valve provision can be applied. U.S. v. Figueroa, 199 F.3d 1281 (11th Cir. 2000).
11th Circuit says safety valve does not apply to sentence imposed before effective date. (246) On September 23, 1994, after defendant was sentenced, the federal “safety valve” provision, 18 U.S.C. § 3553(f) took effect. However, defendant did not assert on appeal that the provision should be applied to him. Instead, he later brought a motion under 18 U.S.C. § 3582(c)(2) for a modification of his sentence. He agreed that § 3553(f) could not be applied retroactively to sentences imposed before September 23, 1994. However, he contended that a sentence is not “imposed” until the sentence is affirmed by the Court of Appeals on direct appeal. The Eleventh Circuit found no merit to this argument, holding that a sentence is imposed when the district court enters the final judgment. U.S. v. Pelaez, 196 F.3d 1203 (11th Cir. 1999).
11th Circuit says information requirements for acceptance reduction and safety valve are different. (246) Defendant claimed that the sentencing court’s finding that he had truthfully admitted the conduct comprising the offense of conviction for purposes of an acceptance of responsibility reduction was inconsistent with its finding that he had failed to satisfy the information requirement of the safety valve provision. The Eleventh Circuit ruled that a sentencing court’s conclusion that a defendant accepted responsibility under § 3E1.1 does not preclude a finding that the defendant failed to meet the affirmative disclosure requirements of § 5C1.2(5). Section 5C1.2(5) requires a defendant to truthfully disclose to the government all information and evidence that he has about the offense and all relevant conduct. It is a “‘tell-all’ provision, demanding a different kind of disclosure than section 3E1.1 demands.” U.S. v. Yate, 176 F.3d 1309 (11th Cir. 1999).
11th Circuit says court improperly deferred to government in making safety valve finding. (246) Before sentencing, defendant gave the government a statement concerning his cocaine trafficking. At sentencing, he asked the court to determine the truthfulness of the information he had provided, and to give him the benefit of the safety valve reduction in § 2D1.1(b)(6). The government argued that defendant had not been truthful, since his trafficking scheme involved 300 kilograms of cocaine, while defendant admitted only 30 kilograms. The court’s response to the dispute was to say that because defendant had not testified at trial, it had no way of knowing whether he was telling the truth. Therefore, the court accepted the government’s position and denied defendant’s request for the reduction. The Eleventh Circuit held that the district court erred in deferring to the government in making the safety valve determination. The responsibility for determining the truthfulness of the information defendant provided to the government was the court’s. However, the burden of proof on the truthfulness issue still lay with the defendant. U.S. v. Espinosa, 172 F.3d 795 (11th Cir. 1999).
11th Circuit holds that co-defendant’s possession of weapon did not bar safety valve relief. (246) Defendant worked in two marijuana grow houses. Police found a shotgun, belonging to a co-conspirator, in a third grow house. Although defendant had no knowledge of the firearm, he nonetheless “possessed” the firearm under the broad language of § 2D1.1(b)(1). The district court ruled that because defendant received the § 2D1.1(b)(1) firearm enhancement, he was ineligible for safety valve protection under § 5C1.2. One of the requirements of safety valve protection is that the defendant not possess a firearm or induce another to possess a firearm. The Eleventh Circuit, agreeing with the Fourth, Fifth, and D.C. Circuits, and disagreeing with the Tenth Circuit, held that a defendant is not precluded from safety valve protection merely because a co-defendant possessed a weapon. The commentary to § 5C1.2 says that the term “defendant” limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused. In addition, the plain language of § 5C1.2 requires that the defendant possess a firearm “or induce another participant to do so.” If “possession” in § 5C1.2 encompassed constructive possession by a co-defendant, then the “induce” language would be unnecessary. U.S. v. Clavijo, 165 F.3d 1341 (11th Cir. 1999).
11th Circuit holds that defendant with offense level below 26 still entitled to safety valve protection. (246) The district court stated that because defendant’s offense level was below 26, he was precluded from receiving safety valve protection. The Eleventh Circuit held that a defendant need not have an offense level below 26 to receive safety valve protection. Section 2D1.1(b)(6) provides for a two-level reduction in offense level if the safety valve criteria in § 5C1.2(2) are met and the defendant’s offense level is 26 or greater. However, even if a defendant’s offense level is under 26, he is still entitled to safety valve protection. He just does not get the additional two-point reduction. U.S. v. Clavijo, 165 F.3d 1341 (11th Cir. 1999).
11th Circuit holds lack of safety valve finding barred appellate review. (246) Defendant appealed the district court’s failure to apply the safety valve provisions of § 5C1.2. At sentencing, in denying the reduction, the district court said only that it did “not feel the safety valve applies in this case. The Eleventh Circuit held that the lack of safety valve findings prevented the appellate court from conducting a meaningful review of the district court’s decision. Other than the court’s brief comment, nothing in the record explained why the court concluded that defendant did not qualify for the § 5C1.2 reduction. The case was remanded. U.S. v. Reid, 139 F.3d 1367 (11th Cir. 1998).
11th Circuit says safety valve does not apply where court departs down to criminal history category I. (246) Defendant pled guilty to a drug conspiracy carrying a mandatory minimum sentence of 120 months. He had 3 criminal history points, placing him in criminal history category II. The court departed downward to category I. Defendant argued that the safety valve provision of 18 U.S.C. § 3553(f) applied because of the downward departure to category I. The Eleventh Circuit held that when a defendant has more than one criminal history point, the safety valve provision is unavailable, even if the defendant’s criminal history category is I due to a downward departure. U.S. v. Orozco, 121 F.3d 628 (11th Cir. 1997).
11th Circuit says 2-level reduction for “safety valve” applies even if no mandatory minimum. (246) Defendant was convicted of using a telephone to facilitate a crack cocaine conspiracy, in violation of 21 U.S.C. § 843(b). He sought a two level reduction under § 2D1.1(b)(4), which applies to defendants who meet the standards of the “safety valve” in § 5C1.2. The district court refused to consider whether defendant met these standards, finding § 5C1.2 did not apply because defendant was not subject to a mandatory minimum sentence under § 843(b). The Eleventh Circuit reversed, holding that a defendant need not be subject to a mandatory minimum sentence to be eligible for a reduction under § 2D1.1(b)(4). Section 2D1.1(b)(4) does not limit consideration of the two level reduction to the enumerated offenses in § 5C1.2. As long as defendant’s base offense level under § 2D1.1 is 26 or greater, a two level reduction is appropriate if defendant satisfies the five factors listed in § 5C1.2. U.S. v. Mertilus, 111 F.3d 870 (11th Cir. 1997).
11th Circuit agrees that defendant did not meet information requirement of § 5C1.2. (246) To receive safety valve protection, § 5C1.2(5) requires a defendant to truthfully provide the government with all information he has concerning the offense of conviction. Defendant argued that the unsigned letter he submitted to his probation officer satisfied this requirement. In this letter, defendant admitted that he made some false statements to the agents at the time of his arrest but reasserted that he did not know that van he was driving contained illegal drugs. The Eleventh Circuit agreed that defendant did not meet his burden of demonstrating a complete and honest disclosure to the government. His written statement provided little new information regarding the commission of the offense, and defendant continued to deny that he knew that the van contained illegal drugs. However, there was substantial evidence that defendant did know the van contained drugs. U.S. v. Cruz, 106 F.3d 1553 (11th Cir. 1997).
11th Circuit upholds jurisdiction to review denial of safety valve protection. (246) Defendant challenged the district court’s refusal to grant him safety valve protection under 18 U.S.C. § 3553(f) and § 5C1.2. The government contended that the court’s decision was not reviewable on appeal. The Eleventh Circuit upheld its jurisdiction to review the denial of safety valve protection. Application of § 5C1.2 is not a downward departure from the guideline range; it allows a defendant to be sentenced within the guideline range by granting relief from a minimum sentence mandated by statute. While other circuits have not directly held that the denial of safety valve relief is appealable under § 3742(a), they have uniformly entertained appeals challenging such decisions. U.S. v. Cruz, 106 F.3d 1553 (11th Cir. 1997).
11th Circuit says “safety valve” does not authorize sentence below guideline range. (246) Defendant’s offense carried a mandatory minimum of 60 months. The district court found defendant eligible for “safety valve” protection in § 5C1.2, and imposed a sentence of 57 months, the bottom of the otherwise applicable guideline range. Defendant argued that the district court erroneously believed that it did not have authority to sentence him below the guideline range after applying § 5C1.2. He argued that Congress intended to give first‑time offenders who meet the statutory criteria a two level reduction in offense level, pointing to an amendment to § 2D1.1(b)(4) that directs the sentencing court to decrease a drug defendant’s offense level by two if the defendant meets the criteria in § 5C1.2 and has an offense level greater than 26. The Eleventh Circuit held that the two level decrease is limited to defendants who come within § 2D1.1(b)(4). U.S. v. McFarlane, 81 F.3d 1013 (11th Cir. 1996).
D.C. Circuit requires defendant to disclose source of drug sample to be eligible for safety valve reduction. (246) Defendant arranged a drug sale between one supplier, Toure, and one buyer. However, the deal also involved two samples, one acquired for marketing purposes from Toure (but never actually delivered to the buyer), the other delivered to the buyer (but acquired from an apparently unrelated source). The D.C. Circuit held that in order to satisfy the information requirement of the safety valve provision, 18 U.S.C. § 3553(f)(5), defendant had to disclose the fate of the sample provided by the seller but not delivered in the transaction, and the origin of the sample that he did deliver to the buyer. The sample from the unknown supplier was “information … concerning the offense.” Defendant used the sample both directly and as a benchmark for proclaiming the superiority of Toure’s drugs. The sample was “integrally linked” to the offense of conviction. As for the Toure sample, defendant refused to answer any questions about his disposition of this sample. U.S. v. Danso, 664 F.3d 936 (D.C. Cir. 2011).
D.C. Circuit finds court did not improperly impose debriefing requirement. (246) Defendant contended that the district court erred in ruling that he was required to debrief the government in order to qualify for safety-valve treatment. The plain text of the statute does not require a debriefing, i.e. a face-to-face interrogation with government prosecutors. At sentencing, the government had argued that such a debriefing was required in order to receive safety valve protection. The court responded that a full debriefing “in the normal sense of the word would not be necessarily required, but an affirmative sharing of information” must be provided to the government. The D.C. Circuit held that the district court did not improperly impose a requirement that defendant had to debrief the government in order to qualify for safety valve protection. Defendant did not dispute that he declined to provide any information to the government, whether by debriefing or otherwise. The district court’s found that defendant’s stipulation to the government’s factual allegations in the plea proffer was neither candid nor complete, and its denial of safety valve protection was proper. U.S. v. Tate, 630 F.3d 194 (D.C. Cir. 2011).
D.C. Circuit rejects safety valve where defendant induced co-defendant to carry loaded gun to drug deal. (246) Defendant was arrested during a drug transaction with a confidential informant. A co-defendant who was present at the time of the arrest had a loaded pistol in his possession. The co-defendant, who had been staying with a friend in an apartment shared by defendant, testified that defendant had called him and asked him to retrieve the gun and bring it to the drug transaction. The D.C. Circuit upheld the district court’s finding that defendant was ineligible for safety valve protection because he had induced the co-defendant to carry a loaded gun to the drug deal. Defendant’s ineligibility for the safety valve provision was established by the fact that the co-defendant carried, at defendant’s request, a loaded pistol in the same vehicle used to transport the cocaine to the site of a planned drug transaction, and that the co-defendant had the pistol inside the van at the moment the drugs and money changed hands. U.S. v. Erazo, 628 F.3d 608 (D.C. Cir. 2011).
D.C. Circuit upholds finding that failure to provide credible information foreclosed safety valve. (246) Defendant pleaded guilty to a drug-trafficking offense. After his plea but before sentencing, defendant disclosed to the government information about his drug supplier. At sentencing, defendant sought a reduction below the otherwise applicable mandatory minimum sentence under the safety valve provision, 18 U.S.C. § 3553(f), on the ground that he had disclosed to the government everything he knew about his offense. The government asserted that defendant had not been truthful in disclosing information about his supplier because defendant claimed to have known the supplier his whole life but did not know the supplier’s full name. The district court found that defendant’s story was not credible and that he had not carried his burden of showing that he had truthfully disclosed all the information in his possession. On that basis, the court denied defendant the safety valve adjustment. The D.C. Circuit upheld the district court’s finding that defendant’s story was not credible and affirmed the district court’s denial of the safety valve. U.S. v. Gales, 603 F.3d 49 (D.C. Cir. 2010).
D.C. Circuit reaffirms that defendant bears initial burden of proof on safety valve. (246) At defendant’s sentencing hearing, the district court placed the burden of proof on defendant to show that he was entitled to a sentence below the applicable mandatory minimum based on the safety valve, 18 U.S.C. § 3553(f). On appeal, defendant argued that once he made a credible showing that the information that he gave to the government was truthful and complete, the burden shifted to the government to present evidence contradicting defendant’s story. The D.C. Circuit noted that defendant’s proposed approach was “sensible but inapplicable,” because defendant had never credibly established that he had given truthful and complete information to the government. The court reaffirmed that a defendant seeking a safety valve reduction bears the initial burden of showing by a preponderance of the evidence that he was entitled to relief. U.S. v. Gales, 603 F.3d 49 (D.C. Cir. 2010).
D.C. Circuit says safety valve requires proffer even if government says it would be unproductive. (246) Defendant argued that he satisfied the information requirement of the safety valve provision, USSG § 5C1.2(5), even though he had no useful information to provide the government. However, defendant did not proffer any information, useful or not. On appeal, he claimed that a proffer would have been futile because the government stated at sentencing that “at this point, post trial, it certainly wouldn’t be a productive debriefing.” Because defendant failed to proffer information of any kind to the government, the D.C. Circuit concluded that he did not qualify for safety valve protection. A defendant cannot avoid his affirmative disclosure obligation merely because the government suggests a debriefing would be unproductive. U.S. v. Mathis, 216 F.3d 18 (D.C. Cir. 2000).
D.C. Circuit agrees defendant did not satisfy safety valve’s information requirement. (246) To receive safety valve protection, the trial court must find that “the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct.” USSG § 5C1.2(5). The court here declined to make that finding, and the D.C. Circuit agreed that there was more than sufficient evidence in the record to support that action. For example, the defense contended that defendant did not know the names of the two men who supplied the drug for the charged transaction. However, the district court concluded that taped conversations showed defendant knew “fully what the nature and source of supply was … and whom he has been dealing with and whom he has done other transactions with.” U.S. v. Evans, 216 F.3d 80 (D.C. Cir. 2000).
D.C. Circuit rules criminal history departure cannot create eligibility for safety valve. (246) Defendant pled guilty to crack cocaine charges and was subject to a mandatory minimum sentence of 120 months. Although the parties initially believed defendant had only one criminal history point and thus qualified for safety valve protection under § 5C1.2, at the time of sentencing the parties knew he actually had three criminal history points. To allow him to be sentenced below the mandatory minimum pursuant to the safety valve, the district court made a criminal history departure under § 4A1.3 from category II to I, and from three criminal history points to one. The D.C. Circuit held that a criminal history departure cannot be used to make a defendant eligible for safety valve protection. The statute and § 5C1.2 plainly provide that a court may not sentence a defendant under the safety valve provision when that defendant has more than one criminal history point as calculated under § 4A1.1–regardless of whatever downward departure a court might grant under § 4A1.3. U.S. v. Robinson, 158 F.3d 1291 (D.C. Cir. 1998).
D.C. Circuit denies safety valve for possession of gun during relevant conduct. (246) Defendant pled guilty to charges relating to drugs found on his person when he was arrested, but not to the more than 500 grams of crack and a firearm found the next day in his apartment. A defendant is not eligible for safety valve protection under § 5C1.2 if he possessed a firearm “in connection with the offense.” The district court found defendant did not qualify for safety valve protection because under note 3, his firearm possession was part of the offense as “relevant conduct.” Defendant argued that firearm possession only bars safety valve protection if it is possessed as part of the offense of conviction. The D.C. Circuit disagreed, holding that safety valve protection can be denied based on possession of a gun during relevant conduct. Note 3’s definition of the offense to include all relevant conduct was valid. U.S. v. Plunkett, 125 F.3d 873 (D.C. Cir. 1997).
D.C. Circuit finds failure to advise of safety valve was not ineffective assistance because it did not apply. (246) Defendant pled guilty to drug charges. He argued that he should have been permitted to withdraw the plea due to his attorney’s ineffective assistance in failing to advise him of the safety valve provision in 18 U.S.C. § 3553(f). The D.C. Circuit ruled that the failure to discuss the safety valve provision was not ineffective assistance because it would not have been applicable to defendant. If convicted of all counts, the bottom of defendant’s guideline range would have been two years higher than the mandatory minimum of ten years. Section 3553(f) is limited to departures from statutory minimum sentences and does not authorize downward departures from the guidelines. U.S. v. Holland, 117 F.3d 589 (D.C Cir. 1997).
D.C. Circuit denies safety valve protection where defendant perjured himself. (246) Defendant received an obstruction of justice enhancement and was denied an acceptance of responsibility reduction based on his testimony that he did not become involved in a drug conspiracy until November 10, and that his participation was coerced by a government agent. The D.C. Circuit held that based on his testimony, defendant was not entitled to safety valve protection under 18 U.S.C. § 3553(f). Section § 3553(f)(5) requires full and candid disclosure by the defendant of all information in his possession concerning the charged offense. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit holds “safety valve” cannot be denied based on co-conspirator’s gun. (246) Defendant pled guilty to conspiracy based on four drug sales to an undercover agent over a 2 1/2 month period. The district court refused to apply the “safety valve” in 18 U.S.C. § 3553(f) and guideline § 5C1.2 because of the presence of a gun at the fourth sale. Defendant’s brother conducted the fourth sale from his car outside a fast food restaurant. During the entire transaction, defendant remained in the restaurant. After the sale, police arrested defendant and his brother. The officers found a gun under the driver’s seat of the brother’s car. The D.C. Circuit held that co-conspirator liability cannot establish firearm possession under the “safety valve.” Note 4 limits defendants accountability of the to his own conduct and conduct he aids and abets. Absent is the language in § 1B1.3(a)(1)(B) holding defendant liable for foreseeable acts in furtherance of jointly undertaken activity. Defendant did not constructively possess the gun found under the seat of his brother’s car. Although defendant may have known of the firearm’s presence, he was not in a position to exercise dominion and control over it. In re Sealed Case (Sentencing Guidelines’ “Safety Valve”), 105 F.3d 1460 (D.C. Cir. 1997).
Commission extends “safety valve” to precursor chemical offenses. (246) The Commission added a new specific offense characteristic at subsection (b)(6) of §2D1.11 (precursor chemicals) to provide a two-level decrease if the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of §5C1.2 (the “safety valve”). The new specific provision parallels the existing two-level decrease for drug offenses in subsection (b)(16) of §2D1.1. The amendment also adds new commentary relating to the “safety valve” reduction in §2D1.11 that is consistent with the commentary relating to the “safety valve” reduction in §2D1.1. See USSG §2D1.1, comment. (n. 21). Amendment 763, effective Nov. 1, 2012.
Commission clarifies two-level reduction for defendants who satisfy “safety valve.” (246) The Commission added Application Note 21 to section 2D1.1(b)(6), clarifying that the two-level reduction for defendants who qualify for the “safety valve” does not depend on whether the defendant is convicted under a statute that carries a mandatory minimum term of imprisonment. The Application Note also clarifies that the level 17 “floor” in § 5C1.2(b) does not apply to § 2D1.1(b)(6). Amendment 640, effective November 1, 2002.
Article finds “safety valve” eliminates ethnic differences for cocaine defendants. (246) In a study of 8,123 offenders sentenced for cocaine trafficking or manufacturing, sociology professor Celesta A. Albonetti found, consistent with other studies, that black and Hispanic cocaine offenders receive significantly longer sentences compared with white offenders, and female offenders receive significantly shorter sentences than males. However, she found that this effect was eliminated for offenders who received the benefits of the “safety valve” provision in § 5C1.2. “Specifically, among offenders receiving the safety valve provision, black and Hispanic offenders are not sentenced in a significantly different manner than white offenders.” Celesta A. Albonetti, The Effects of the “Safety Valve” Amendment on Length of Imprisonment for Cocaine Trafficking/Manufacturing Offenders: Mitigating the Effects of Mandatory Minimum Penalties and Offender’s Ethnicity, 87 Iowa L. Rev. 401 (Jan. 2002).
Commission extends “safety valve” to defendants below level 26 but adopts level 17 “floor.” (246) The Commission expanded the eligibility for the two-level reduction in subsection (b)(6) of § 2D1.1 (which applies to defendants who are eligible for the “safety valve” in § 5C1.2), to include defendants whose offense level is less than level 26. However, to comply with the apparent intent of Congress in enacting the “safety valve,” the amendment also establishes in § 5C1.2 a minimum offense level of level 17 for defendants whose statutory minimum sentence is at least five years. Amendment 624, effective November 1, 2001.
Commission proposes to expand drug “safety valve” reduction to defendants over level 26. (246) At present, drug defendants who qualify for the “safety valve” in section 5C1.2 also receive a two-level reduction in their sentence under § 2D1.1(b)(6), but only if their offense level is 26 or greater. The Commission proposes to eliminate this restriction so that all drug defendants who qualify for the safety valve, including those who commit less serious drug offenses, can receive the two-level decrease. The proposed amendment also deletes commentary that is outdated because of the operation of § 5C1.2 (safety valve). 2001 Proposed Amendment 9.
Commission clarifies that no supervised release is required for “safety valve” or 5K1 motion. (246) The Commission amended § 5D1.2 (Term of Supervised Release) to make it clear that a defendant who qualifies under the “safety valve” (§ 5C1.2, 18 U.S.C. § 3553(f)), or who is the beneficiary of a Government substantial assistance motion under 18 U.S.C. § 3553(e), is not subject to any statutory minimum term of supervised release. This amendment also clarifies that the requirement in subsection (a), with respect to the length of a term of supervised release, is subject to the requirement in subsection (b) that the term be not less than any statutorily required term of supervised release. Amendment 570, effective November 1, 1997.
Commission provides two level decrease if defendant meets “safety valve” criteria. (246) In Amendment 515, effective November 1, 1995, the Commission added a new subsection to §2D1.1(b) to provide a two level decrease if the defendant meets the criteria set forth in the “safety valve,” guideline §5C1.2, and the offense level is level 26 or greater. The “safety valve” guideline itself, §5C1.2, permits a defendant to be sentenced under the guidelines without regard to any statutory minimum sentence.
Article says “safety valve” is step toward eliminating mandatory minimums. (246) Senior District Judge Broderick reviews the new “safety valve” adopted as Title Eight of the Violent Crime Control and Law Enforcement Act of 1994 (18 U.S.C. 3553(f)), arguing that it “constitutes a first step toward eliminating the monumental error of mandatory minimums as an anti-crime weapon.” The new provision (set out in U.S.S.G. § 5C1.2) permits courts to sentence pursuant to the guidelines without regard to a statutory minimum if five conditions are met. The article discusses questions of interpretation raised by each of the criteria for eligibility, as well as related issues of appellate review and avoidance of constitutional questions. Vincent L. Broderick, Flexible Sentencing and the Violent Crime Control Act of 1994, 7 Fed. Sent. Rptr. 128 (1994).
Act provides “safety valve” exception to mandatory minimum for some low level drug offenders. (246) Title VIII of the Violent Crime Control Act of 1994 adds a new subsection (f) to 18 U.S.C. § 3553 exempting some low level drug offenders from mandatory minimum penalties. The defendant must meet the following conditions: (1) not have more than one criminal history point, (2) not use violence or a dangerous weapon, (3) no serious bodily injury resulted, (4) not have an aggravating role, and (5) truthfully provide all information concerning the relevant conduct.