SUMMARY OF ARGUMENT

As appellant, xxxxx, explained in his opening brief, U.S.S.G. § 5C1.2(2) should only preclude application of the safety valve if a defendant's possession of a firearm is in connection with the offense of conviction. In its brief for appellee, the government contests that argument, and goes on to contend that an enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1) automatically precludes application of the safety valve. However, neither the plain language and purposes of §§ 2D1.1(b)(1) and 5C1.2(2) nor the cases interpreting those provisions support this contention. This Court should rule that the meaning of "offense" under § 5C1.2(2) is limited to the offense of conviction and, if it reaches the additional question raised by the government, that there is a clear distinction between the standards for application of §§ 5C1.2(2) and 2D1.1(b)(1).

Relevant Conduct as Defined in § 1B1.3(a) Does Not Apply to the Safety Valve and Therefore, "Offense" Under the Safety Valve Should be Interpreted as the Offense of Conviction Only

As defendant explained in his opening brief, this Court should interpret the plain language of the guidelines to hold that the firearm prong of the safety valve does not permit consideration of relevant conduct two levels removed from the offense of conviction. Cf. United States v. Pinnick, 47 F.3d 434, 439 (D.C. Cir. 1995) ("government must demonstrate a connection between [dismissed count] and the offense of conviction, not between [dismissed count] and the other offenses offered as relevant conduct" (emphasis in original)). The commentary to the safety valve refers to relevant conduct but does not distinguish between § 1B1.3(a), which specifically applies to Chapters Two and Three of the Guidelines, and § 1B1.3(b), which specifically applies to Chapters Four and Five of the Guidelines, and which limits relevant conduct to conduct specified in the respective guidelines. Furthermore, if the term "offense" in subsections (2) through (5) of § 5C1.2 includes relevant conduct as defined in § 1B1.3(a), there is no reason to elaborate that subsection (5) applies to "the offense or offenses that were part of the same course of conduct or of a common scheme or plan . . . ." U.S.S.G. § 5C1.2.

The government asserts that this Court should review these arguments for plain error because defense counsel failed to raise these reasons for his objection before the district court. Brief for Appellee (hereinafter "Govt. Br.") at 12 & 22. However, at the sentencing hearing, defendant clearly objected to denial of the safety valve on the ground that his possession of the gun was not "in connection with the offense," specifically referring to the offense of conviction. (9/26/96 Tr. at 17).¹ This is exactly the same ground on which defendant bases his appeal. In contesting defendant's argument at the sentencing hearing, the government did not cite application note three's reference to relevant conduct. To the contrary, the government suggested that an atypical relevant conduct standard would apply:

The only legal question . . . is whether the language regarding the two points off for the safety valve -- that's not the pure regular relevant conduct language -- whether that language encompasses the gun in this case where the gun is sitting at home with a different [cache] of drugs.

(9/26/96 Tr. at 10) (emphasis added). Therefore, defendant had no reason to elaborate on application note three or the applicability of § 1B1.3(a) or (b) to his argument that the firearm was not possessed in connection with the offense of conviction. The fact that he has provided additional detail in support of his argument on appeal does not require a plain error standard, where his arguments at sentencing and on appeal are one and the same.

The government also raises several points in contention of defendant's substantive arguments. First, the government asserts that because § 1B1.3(a)'s relevant conduct standard applies to Chapter Two it therefore applies to § 2D1.1(b)(4), the provision authorizing the two-level reduction sought by defendant. Govt. Br. at 23-24. However, § 2D1.1(b)(4) refers in turn to § 5C1.2, the guidelines provision that contains the term "offense" that is at issue. The meaning of that term is governed by § 1B1.3(b), which limits relevant conduct to conduct specified in Chapters Four and Five guidelines.

Second, the government argues that the definition of "offense" in the commentary to § 1B1.1 clarifies that § 1B1.3(a)'s definition of relevant conduct should govern the safety valve. Govt. Br. at 25-26. The commentary to § 1B1.1(1) provides that "'offense' means the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context." U.S.S.G. § 1B1.1(1), comment., n.1(l). However, like application note three to the safety valve, the reference in § 1B1.1(1)'s application note one to relevant conduct fails to distinguish between § 1B1.3(a), which applies to Chapters Two and Three, and § 1B1.3(b), which applies to Chapters Four and Five. Therefore, like application note three, that reference should be interpreted for purposes of the safety valve as a reference to § 1B1.3(b) only. Furthermore, subsections (2) through (4) of the safety valve apply to the "offense" only, whereas subsection (5) applies to "the offense or offenses that were part of the same course of conduct or of a common scheme or plan . . . ." The different language of these provisions demonstrates that subsections (2) through (4) were not intended to include offenses that were part of the same course of conduct or common scheme or plan. Accordingly, "a different meaning" is also "clear from the context" pursuant to § 1B1.1(1).

Third, the government contests defendant's argument because it asserts an inconsistency between the commentary to § 5C1.2 and a different guidelines provision, specifically, § 1B1.3(a).² Govt. Br. at 25. The issue before the Court in Stinson v. United States, 508 U.S. 36 (1993), involved commentary that conflicted with the same guidelines provision the commentary referred to. For that reason, its holding did not specifically discuss commentary that is inconsistent with a different guidelines provision. However, its rationale applies with equal force to that situation. Federal courts are bound to uphold the guidelines. Id. at 42. Commentary, in contrast, has the force of an agency's interpretation of its own regulations. Id. at 44-45. There is no basis under Stinson for a court to uphold commentary that is inconsistent with any guidelines provision.

Fourth, the government claims that defendant's assertion that courts should not rely solely on the interpretation of different guidelines provisions that are not explicitly cross-referenced "appear[s] to preclude" his argument that application note three's reference to relevant conduct should not be interpreted to refer to § 1B1.3(a). Govt. Br. at 22 n. 10. To the contrary, it supports this argument. Both contentions are based on the observation by this Court in United States v. Chatman, 986 F.2d 1446, 1450 (D.C. Cir. 1993), that the Sentencing Commission wrote the Guidelines as a unit with "explicit cross-referencing" and therefore, implicit cross-references should be avoided.

Finally, the government argues that it is "clear" that "offense" in § 5C1.2 is meant to include relevant conduct, citing in In re Sealed Case (Sentencing Guidelines' "Safety Valve"), 105 F.3d 1460 (D.C. Cir. 1997). Govt. Br. at 26. However, in that case this Court limited § 1B1.3's application to § 5C1.2(2), in holding that liability for a co-conspirator's possession of a weapon in connection with the offense was precluded under the safety valve. Id. at 1462-63. The Court recognized the "tension" between the limitation it found and application note three's reference to "relevant conduct," since co-conspirator liability was included as relevant conduct under § 1B1.3(a). Id. at 1463. No such tension would exist if this Court were to hold, as defendant urges, that application note three's reference to relevant conduct was solely to subsection (b) of § 1B1.3, and not to subsection (a). Furthermore, the government's citation of examples in which a leader or organizer could obtain the benefit of the safety valve if that provision applied only to the offense of conviction, (Govt. Br. at 26-27), is not convincing because it is unlikely that the government would allow such a defendant to plead to charges that did not reflect his or her culpability in the offense of conviction. Accordingly, it would not be incongruous or inconsistent with the intent of Congress or the Sentencing Commission to hold that subsections (2) through (4) of the safety valve apply only to the offense of conviction.

The Safety Valve Provision May be Applied Even If Defendant Received an Enhancement Pursuant to U.S.S.G. § 2D1.1(b)(1)

The government argues that a correct reading of the guidelines "compels a ruling that safety valve treatment is precluded as a matter of law when an enhancement for a defendant's own possession of a dangerous weapon is appropriate under § 2D1.1(b)(1)." Govt. Br. at 11-12.³ The government's assertion is not supported by the plain language of these guidelines provisions. Section 2D1.1(b)(1) authorizes a two-level enhancement in cases involving certain drug offenses if "a dangerous weapon (including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1). In contrast, § 5C1.2(2) precludes application of the safety valve in a broader category of drug offenses if the defendant possessed a firearm "in connection with the offense." The plain language of these two provisions, therefore, is distinct and not, as the government asserts, "virtually identical." Govt. Br. at 19. This Court has already found the distinction in the language of the two provisions to be "significant," noting the difference between § 2D1.1(b)(1)'s "passive voice, requiring enhancement if a firearm 'was possessed,'" and the safety valve's "active voice, requiring that 'the defendant' must do the possessing." In re Sealed Case, 105 F.3d at 1463. Though § 2D1.1(b)(1) does not mention any connection with the underlying offense, the commentary to that provision provides that the adjustment should be applied "unless it is clearly improbable that the weapon was possessed in connection with the offense." U.S.S.G. § 2D1.1(b)(1), comment., n.3 (also citing example, not warranting enhancement, of unloaded hunting rifle in closet). Even with this limitation to the applicability of § 2D1.1(b)(1), that provision remains much broader than § 5C1.2(2).

The government's argument is also not supported by the purposes behind these guidelines provisions. Section 2D1.1(b)(1) applies to drug trafficking, manufacturing, and import and export offenses. As the government observed, in establishing the § 2D1.1 weapon enhancement, the Sentencing Commission discussed the "increased danger of violence when drug traffickers possess weapons." U.S.S.G. § 2D1.1, comment., n.3; Govt. Br. at 20-21. The Sentencing Commission did not establish guidelines that reflect a similar increased danger of violence in cases involving simple possession of drugs -- § 2D2.1, the counterpart to § 2D1.1 for simple possession offenses, contains no firearm enhancement. In contrast, § 5C1.2 applies to both simple possession of drugs and more serious drug offenses. See U.S.S.G. § 5C1.2 (listing 21 U.S.C. § 844 among offenses to which it applies). There is no reason and the government does not discuss why simple possession cases that otherwise would qualify for the safety valve should be precluded from that provision's protection on the basis of a standard designed for more serious crimes. The fact that Mr. xxxxxxx's case involves drug trafficking does not alter the fact that the safety valve was intended to apply to both less serious and more serious drug-related offenses, and should be applied with the same standard to all of those crimes.

It is also clear that the Sentencing Commission intended § 2D1.1(b)(1) to be more broadly applied than the safety valve because that provision authorizes enhanced sentences in cases involving co-conspirator liability while § 5C1.2(2) applies to the defendant's conduct only. See In re Sealed Case, supra. The government recognizes this distinction but fails to explain why the two provisions should be given equal effect except in this one important aspect. Govt. Br. at 19 n.17, 21 n.19, 24 n.22.

In support of its position, the government cites a single, unpublished District Court decision. Govt. Br. at 17 (citing United States v. Santos, 1996 WL 617329 (S.D.N.Y. Oct. 25, 1996)). That case does not provide a useful basis for distinguishing the "clearly improbable" standard of § 2D1.1(b)(1) from the "in connection with" standard of § 5C1.2(2) because the facts involved "a small arsenal" found in the same apartment as the drugs for which the defendant was convicted. Id. at *2. In the other cases cited by the government, not only do the facts similarly fail to support a distinction between the two provisions, the courts were not presented with or did not reach the question of what standard should apply. The court in United States v. Flucas, 99 F.3d 177 (5th Cir. 1996), cert. denied, 117 S. Ct. 1097 (1997), mentioned the safety valve only in dicta; application of the safety valve was not a subject of the appeal.⁴ Furthermore, in that case, both the firearm and the drugs were found together beneath the seat of the car in which the defendant was arrested. Id. at 178-79. In United States v. Bainter, 1997 WL 205376, *1 (8th Cir. Apr. 28, 1997), (also unpublished), the court specifically declined to reach the question of whether the § 2D1.1(b)(1) standard should apply. Id. at *1 n.2. There, the defendant admitted that the "'firearm was used to protect the drugs and money.'" Id. at *1.⁵

The government interprets the district court's ruling in this case to have applied the same standard to both §§ 2D1.1(b)(1) and 5C1.2(2). Govt. Br. at 20 n. 18 ("Judge Robertson noted two candidate burdens of proof and their possible interaction, but appeared to recognize -- as the government contends -- that there is no practical, meaningful distinction between the two."). If the government has correctly interpreted the district court's ruling, then this Court should remand to the district court because it erred in applying the § 2D1.1(b)(1) standard to the safety valve.

The Defendant Should Not Bear the Burden of Proving Facts in the Negative Under the Safety Valve

The government argues that defendant should bear the burden of proving that the safety valve is applicable. Govt. Br. at 17-18 & n.16 (citing cases).⁶ However, the single case cited by the government in support from this Court does not hold that defendant bears the burden of proof under the safety valve. See United States v. DeJesus-Gaul, 73 F.3d 395 (D.C. Cir. 1996); Govt. Br. at 18 & 28. Moreover, even though a defendant generally bears the burden of proving mitigating adjustments under the guidelines, the safety valve is a unique provision requiring the court to find several aggravating conditions not to be true. It is only in the aggregate that the five prongs of the safety valve permit a mitigating adjustment. It is reasonable, therefore, to require the government to bear the burden of proving at least the first four prongs of the safety valve: (1) that the defendant has more than one criminal history point; (2) that he or she used violence or possessed a weapon in connection with the offense; (3) that the offense resulted in death or serious bodily injury; or (4) that the defendant was not an organizer or leader. Even under subsection (5), once a defendant has made more than a conclusory statement that he or she has affirmatively assisted the government by providing information, the burden should shift to the government to demonstrate that the defendant's disclosure has been less than complete and truthful. Moreover, the application of subsections (1) and (4) of the safety valve typically depend on determinations made by the probation officer and the Court. Because of the difficulty of proving a negative, it is unreasonable to require the defendant to bear the burden of proving those circumstances not to be true.

By Admitting Accountability for the Firearm, Defendant did not Concede that the Safety Valve was Precluded

The government asserts that application of the safety valve is foreclosed by defendant's admission of possession and accountability for the firearm. To the contrary, though defendant admitted possession and accountability, he did not and does not concede that the firearm was possessed in connection with his drug offense. He was not carrying the weapon with him when he was arrested. There is no evidence that the weapon was loaded. This Court should not use defendant's cooperation and admission of responsibility against him to foreclose the question presented in this appeal.

CONCLUSION

Appellant respectfully requests that this Court vacate his sentence and remand this case for resentencing.

Respectfully submitted,

A.J. KRAMER,

FEDERAL PUBLIC DEFENDER

Beverly G. Dyer

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 500

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify that the foregoing reply brief for appellant, Hugh O. xxxxxxx, does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).