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."