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Safety-Valve
United States v. Santano, No. 07-CR-874 (JBW), 2009 WL 1956227 (E.D.N.Y. July 6, 2009)
Short Note: Santano pled guilty to a narcotics offense. Although he did not initially qualify for safety valve relief, he ultimately did. And the Court determined that he faced a Guidelines range of 87 to 108 months imprisonment. He was ultimately sentenced, however, to 37 months imprisonment.
Why? "The offense is serious. The defendant was a member of a gang that disturbed the peace and threatened the safety of a public housing project. He was extremely young during the time of his involvement in this drug sales operation. He has the benefit of considerable support from his family, who expressed that they are moving to a different community to assist in Santano's continued rehabilitation and reintegration into society. His former employer indicated that Santano is a talented barber and would have a job in his shop available to him upon his release. He is an intelligent individual who appears capable of leading a productive, law-abiding life."
United States v. Smith, No. 08-CR-545 (JBW), 2009 WL 971682 (E.D.N.Y. April 2, 2009) How do you get from a five year mandatory minimum sentence and an advisory Guidelines range of 37 to 46 months down to a sentence of only a year and a day? The safety valve, of course. Also, it doesn't hurt that you've got a nice sentencing story and a couple of bucks to forfeit: The defendant is intelligent and thoughtful, and he has taken responsibility for his criminal acts. He has a loving family that will support him in leading a lawful life moving forward. Given the defendant's long history of involvement with drugs as well as his past problems with alcohol and gambling, treatment will be critical in his rehabilitation; he has expressed his intent to take full advantage of those programs. He agreed to forfeit all the drug proceeds -- nearly a quarter of a million dollars -- recovered from him by law enforcement at the time of his arrest, a factor in the defendant's favor for purposes of sentencing.
United States v. Samuels, No. S1-08-Cr.-08-03 (RWS), 2009 WL 875320 (S.D.N.Y. April 2, 2009) Ah . . . the power that the safety valve can sometimes yield. Samuels pled guilty to conspiring to distribute and possess with intent to distribute 50 grams or more of crack. For that offense, she faced a 10 year mandatory minimum sentence (even though her Guidelines indicated 70 to 87 months imprisonment). Samuels, however, fulfilled the requirements of 18 U.S.C. § 3553(f), and was sentenced to time served (15 months). Here's the justification for the sentence as explained by the Court: Title 18 U.S.C. § 3553(a)(1) directs the Court to consider "the history and characteristics of the defendant" when determining the appropriate sentence. As noted by the Probation Officer in his report, Samuels was raised under poor economic circumstances with an abusive father addicted to crack. She dropped out of school in order to support her family, and she has stated that her sale of narcotics was for economic reasons. Her abuse of crack was never extensive, and she reportedly stopped abusing and selling crack in November 2007 on her own initiative, two months prior to her arrest. The probation officer noted in the PSR that her abuse of drugs was a source of embarrassment to her and kept from her family, and Samuels has stated that she has no desire to ever use drugs again.
Samuels has acknowledged responsibility for her actions, stated that she has learned a valuable lesson from it, and seeks to move forward to become a productive member of society. Her 15 months of incarceration reflect the positive change that the Defendant seeks to make in her life. She has successfully completed a typing class, undergone Inmate Companion Training, is pursuing classes in order to earn a GED degree, and leads a trusted cleaning crew that is permitted access to nearly all parts of the MDC. She has never been written up for a disciplinary infraction while in custody. Upon her return to society, Samuels appears well positioned to complete her education and pursue gainful employment in support of her family.
Because a term of incarceration beyond time already served would not serve the goals of the penal system with respect to this Defendant, a downward departure from the Guidelines is appropriate.
United States v. Remy, No. 07-CR-5 (JBW), 2008 WL 5458951 (E.D.N.Y. Dec. 24, 2008) Simple case. Remy pled guilty to one count of cocaine importation. His advisory Guidelines range was 30-37 months, although he qualified for a two level "safety valve" reduction. Based on 18 U.S.C. § 3553(a), though, Judge Weinstein sentenced Remy to a year and a day. More specifically, Judge Weinstein found that Remy "has no criminal history and is a hard worker," and "has some recent medical issues." Additionally, Judge Weinstein found that the sentence "will send a clear message that any involvement in narcotics importation will result in a substantial prison sentence," and that it is "unlikely that he will engage in further criminal activity in light of his law-abiding background." Interestingly, Judge Weinstein also noted that Remy had essentially already been punished -- to wit, through "the impact of this conviction on the defendant's ability to apply for certain employment."
A report from a reader (Renate J. Lunn and Jesse M. Siegel of the Law Office of Jesse M. Siegel) of a significant variance from the Guidelines in a narcotics case:
Judge Scheindlin gave our client a non-Guidelines sentence of time-served, even though his stipulated Guidelines range was 70-87 months. The defendant was in the unique situation of having spent a significant amount of time in custody (12 months) before being released on bail and had made significant progress in drug and alcohol treatment (the root cause of his involvement in the offense) for the nine months he was released on bail.
The defendant pled guilty, pursuant to a plea agreement, to participating in a conspiracy to distribute five or more kilograms of cocaine. He qualified for the safety valve and received a three-level reduction for acceptance of responsibility. After spending a year at the MDC, he was released on bail. While on bail, he attended regular one on one counseling sessions and group therapy at Daytop to treat his cocaine and alcohol addictions.
The defendant, who is now 52 years old, became involved in the conspiracy as a result of his own intense cocaine addiction. We argued that as his addiction was now being treated, it was highly unlikely that he would commit any further crimes. In our submission, we included monthly progress reports from Daytop, which demonstrated that Mr. Martinez was learning to address his addictions. His counselor at Daytop also submitted a letter to the Court, through Pre-Trial Services. We spoke with the counselor and shared with her our strategy, requesting that her report to Pre-Trial emphasize that the defendant continues to need treatment. Judge Scheindlin commented that it was rare to receive such a detailed letter from a counselor. Furthermore, this was the defendant's first offense, and he had an impressive work history. In our sentencing memorandum we cited to U.S. Sentencing Commission statistics regarding the low recidivism rates of defendants over the age of 50 and studies indicating that drug treatment is more effective at reducing crime rates than incarceration.
In sentencing the defendant, the Court analyzed the nature and circumstances of the offense: the defendant had a menial role in the conspiracy, acting as a “trusted messenger” or “lackey.” In consideration of the history and characteristics of the defendant, the court noted the defendant's lack of criminal history until the age of 50, and his “detailed and honorable work history.” The Court commented that this was a serious crime that required incarceration, but determined that the one year that the defendant spent in jail was a sufficient deterrent. The Court concluded that returning the defendant to jail would not do him or society any good.
Thus, the defendant was sentenced to 4 years of supervised release with the special condition that he participate in a drug treatment program. We were extremely pleased that a judge used her authority to ensure that a defendant receives drug treatment, rather than just incarceration. We hope that this decision, though unpublished will inspire other judges to do the same.
Nice work! Questions from other readers? Feel free to contact Renate J. Lunn of Jesse M. Siegel directly at 212-207-9009. Renate's e-mail is renate_lunn@yahoo.com and Jesse's e-mail is jessemsiegel@aol.com.
United States v. Day, No. 05-04283-cr (2d Cir. Oct. 10, 2006) (found here)
The sentencing court really blew it on this one. Specifically, the sentencing court imposed a 180 month sentence on Day composed of consecutive 120 month and 60 month sentences (for two separate counts). The sentencing court, however, misread the statute under which Day was convicted to require that the sentences for those two counts be served consecutively. Indeed, the Second Circuit surmised that the sentencing court reached that conclusion based on the PSR which had also erroneously concluded that the two sentences had to be served consecutively.
The Second Circuit therefore rightfully reversed the sentence and remanded the case for resentencing. For further discussion of this significant error, check out Doug Berman's Sentencing Law and Pollcy blog here, where Professor Berman observes that he is "always charged up about sentencing realities because I sometimes find cases in which simple sloppiness can almost cost a person years of their life." (As an aside, it also bears noting that the sentencing court failed to verify that Day and his counsel had read and discussed the PSR.)
But that was not the sentencing court's only error. Rather, the sentencing court also failed to make specific findings as to whether or not Day qualified for safety valve relief.
Specifically, a sentencing court may not rely solely on the Government's determination as to whether or not a defendant qualifies for safety valve relief. Rather, a sentencing court must make its own determination based on the record. Day argued (and the Government conceded) that the sentencing court here made no independent findings in support of its conclusion that Day did not qualify for safety valve relief. Accordingly, the Second Circuit remanded the case so that the sentencing court could "make specific findings as to whether Day met his burden of proving that he satisfied the safety valve criteria."
Day also argued that he should be permitted to further proffer before he is resentenced to demonstrate that he meets the safety valve's fifth criteria (that he "provided to the Government all information and evidence . . . concerning the offense or offenses that were part of the same course of conduct or of a common plan or scheme"). The Second Circuit acknowledged that it had not yet addressed this question, and declined to do so in Day. Rather, the Second Circuit found that the sentencing court may either: (1) grant safety valve relief; or (2) allow Day to further proffer and determine that he still does not qualify for safety valve relief.
Wait a second. Isn't the Second Circuit answering the question it specifically says it is not answering?
If Day provides no further proffer in support of safety valve relief, the sentencing court upon remand will be working with the same universe of information with which it worked when it made its initial safety valve determination. And since it rejected safety valve relief based on that information, it is fair to presume that it would once do so (albeit with specific findings).
So, if the only two possibilities available to the sentencing court are to grant safety valve relief or to allow further proffer and reject safety valve relief, isn't the Second Circuit essentially saying that the sentencing court must hear further proffer from Day because: (1) it could not/would not (based on its prior findings) grant safety valve relief without hearing further proffer from Day; and (2) it could not reject safety valve relief after hearing further proffer from Day without, in fact, hearing that further proffer? In other words, don't both possibilities laid out by the Second Circuit contemplate that the sentencing court must hear further proffer from Day?
Or, is the Second Circuit saying that the sentencing court could decline to hear further proffer from Day upon remand and still reject safety valve relief? And, if so, hasn't Day "squarely presented" the question to the Second Circuit that it claims has not been "squarely presented" -- to wit, whether or not he has the right to further proffer upon remand?
United States v. Jimenez, Docket No. 05-2221-CR, 2006 WL 1612745 (2d Cir. June 13, 2006)
In Jimenez, the Second Circuit was called upon to answer the question of whether Booker removes from "the burden of proof on the defendant to establish that he or she has satisfied the fifth requirement of the so-called 'safety valve' provision, which permits the imposition of a sentence below the mandatory-minimum sentence prescribed in an underlying-offense statute." The Second Circuit found that Booker did not change that burden of proof or shift it to the Government.
Jimenez plead guilty to certain narcotics offenses that exposed him to a five-year mandatory minimum term of imprisonment. Prior to sentencing, Jimenez submitted a memorandum arguing that he was eligible for safety-valve relief and that he had specifically disclosed his full involvement in the offense of conviction, thereby satisfying the fifth element of the safety-valve that a defendant must have "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 or of a common scheme or plan." Specifically, Jimenez described in his memorandum all of the statements he made to the Government during a post-arrest interview and two separate proffer sessions. In response, the Government submitted a letter in which it argued that Jimenez was not eligible for safety-valve relief because he had "not provided complete and truthful information about his involvement in the offense and his co-conspirators." Specifically, the Government detailed all of what it perceived to be Jimenez's falsehoods and omissions. The Court, in turn, conducted a Fatico hearing to determine Jimenez's credibility so that it could determine for itself whether or not Jimenez had satisfied his burden under the fifth element for safety-valve relief. Ultimately, the Court determined that Jimenez had not satisfied that burden.
On appeal, Jimenez argued that Booker undermined the Second Circuit's rationale in United States v. Gambino, 106 F.3d 1105 (2d Cir. 1997), which placed the burden of proof with regard to this fifth safety-valve element on the defendant. As a result, Jimenez argued that the Second Circuit should shift the burden to the Government to prove by a preponderence of the evidence that a defendant is ineligible for safety-valve relief. Specifically, Jimenez argued that after Booker the safety-valve is no longer merely a sentencing adjustment but instead:
"permits the District Judge -- after considering the Guidelines and the other factors in 18 U.S.C. § 3553(a) -- to impose a non-Guidelines sentence. Based on the increased discretion that district courts now enjoy following Booker, Jimenez argues that the burden of proof with respect safety-valve relief should be placed on the government."
The Second Circuit disagreed.
In Gambino, the Second Circuit had reasoned that: (1) a defendant who seeks to take advantage of a sentencing adjustment carries the burden of proof; and (2) the plain language of the safety-value places the burden on the defendant to provide truthful information to the Government and that therefore the defendant bears the burden to prove that he provided such truthful information. And, in Jimenez, the Second Circuit found that Booker did not disturb its reasoning in Gambino -- "The safety valve was certainly not intended to impose on the government five additional elements that it must prove before triggering the imposition of a mandatory-minimum sentence."
United States v. Florez, No. 05-2385 CR., 2006 WL 1174135 (2d Cir. May 3, 2006)
Florez's Guidelines calculation provided for a sentence of 262 to 327 months incarceration. The district court, however, sentenced Florez to a non-Guidelines sentence of 210 months incarceration based in part on the fact that Florez's brother "had earlier pleaded guilty to his involvement in the same narcotics schemes before a different judge [and] had received a ten-year sentence."
On appeal. Florez argued that his sentence was unreasonable in part because of the disparity between his 210 month sentence and the 120 month sentence imposed on his co-defendant brother. The Second Circuit rejected that argument, finding instead that Florez's "reasonableness challenge reduces, at best, to a complaint about the weight the district court afforded the disparity between his Guidelines range and his brother's sentence. This is not a point on which we are inclined to second-guess a sentencing judge." Indeed, the Second Circuit went on to say that sentence disparity is only one of several factors that must be weighed and balanced by a sentencing judge and that "if sentencing disparities between co-defendants are properly considered, the weight to be given such disparities, like the weight to be given any 3553(a) factor, 'is a matter firmly committed to the discretion of the sentencing judge and is beyond our [appellate] review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances present.'"
Sounds like the Second Circuit is warming to the propriety of the concept of co-defendant disparity as a ground for a non-Guidelines sentence, right? Wrong.
Embedded in the Second Circuit's Florez decision are indications that the Second Circuit is still hostile to the propriety of the concept of co-defendant disparity as a basis for a non-Guidelines sentence. For example, the Second Circuit wrote that because the Government had not cross-appealed the district court's reliance on co-defendant disparity, "we need not address the propriety of considering co-defendant disparity on this appeal." Similarly, the Second Circuit dedicated an entire paragraph to noting that the district court would have acted well within its discretion in concluding that Florez and his brother were not sufficiently similarly situated to warrant any sentence reduction. (After all, Florez had fled the jurisdiction for almost five years.)
So, in sum, the concept of co-defendant disparity lives to fight another day. But this author will be on the lookout for that case in which the Second Circuit squarely considers the propriety of co-defendant disparity as a basis for a non-Guidelines sentence.
United States v. Herrera, No. 05-1454-CR., 2006 WL 1174141 (2d Cir. May 2, 2006)
The district court that sentenced Barraza (a co-defendant of Herrera) found that Barraza had been jointly responsible for drug stash houses where firearms were kept and exercised personal dominion and control over those weapons. Thus, the district court found that Barraza's Guidelines offense level should be enhanced by two levels for gun possession pursuant to U.S.S.G. 2D1.1(b)(1). The district court also found that Barazza did not quality for saftey-valve relief from a mandatory minimum sentence under 18 U.S.C. 3553(f) and U.S.S.G. 5C1.2.
On appeal, Barraza did not dispute the 2D1.1(b)(1) weapon enhancement that he received. Rather, Barazza argued that the district court erred because it concluded that his receipt of the 2D1.1(b)(1) enhancement disqualified him from safety-valve eligibility. The Second Circuit rejected Barazza's appeal but did not reject Barazza's argument. Indeed, the Second Circuit acknowledged that "other circuits" -- specifically the Ninth and Tenth Circuits -- "have held that a defendant who receives a two-level increase under 2D1.1(b)(1) for possession of a dangerous weapon may nonetheless be eligible for safety-valve relief." Those circumstances appear to be present when the possession of a dangerous weapon is attributed to a defendant because of the possession of that dangerous weapon by a co-conspirator -- circumstances that would result in a two-level increase pursuant to 2D1.1(b)(1) but that might not necessarily disqualify the defendant from safety-valve relief. In Barazza's case, the district court did not err because it had, in fact, assumed that "in some circumstances -- such as where the increase under 2D1.1(b)(1) was based on possession of a weapon by a co-conspirator -- a defendant would not be disqualified from safety valve."
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