Cr. No. xx-207 (JR)

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), appellant xxxxxx hereby states as follows:

A. Parties and Amici: The only parties below and on appeal are defendant-appellant xxxxxxxx, and plaintiff-appellee, the United States of America. There are no intervenors or amici.

B. Rulings Under Review: In this appeal, appellant seeks review of the decision of the district court (the Honorable James Robertson) that the "safety valve," U.S.S.G. § 5C1.2, did not apply in this case.

C. Related Cases: There are no related cases. This case has not been before this Court previously.

STATUTES AND RULES

Pursuant to D.C. Cir. Rule 28(a), pertinent statutes and regulations are included in the addendum to this brief.

JURISDICTION

The district court had jurisdiction over this criminal case pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

ISSUE PRESENTED FOR REVIEW

Whether the district court erred in finding that defendant's possession of a weapon was "in connection with the offense" and therefore precluded application of the safety valve provision of the Sentencing Guidelines, U.S.S.G. § 5C1.2.

STATEMENT OF THE CASE

On June 20, 1996, a federal grand jury returned a six-count indictment against defendant. (App. [ ]).¹ On July 3, 1996, defendant pled guilty to count one of the indictment, which charged him with possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). (7/3/96 Tr. at 4). The government dismissed the remaining counts of the indictment. (9/26/96 Tr. at 28-29).

The government proffered that it would have shown at trial that, on April 23, 1996, federal agents stopped a car in which defendant was a passenger and found 52.17 grams of cocaine base in his pocket. (7/3/96 Tr. at 11). The next day, the agents executed a search warrant on Apartment No. xxx at xxx Missouri Avenue, N.W., and found over 500 grams of crack cocaine and items containing drug residue and defendant's fingerprints. Id. at 12. The agents also found documents linking defendant to the apartment, and an operable firearm on a pile of clothes, approximately four to five feet from where the half kilo of cocaine base was found. Id. at 13 & 15.

On September 26, 1996, the district court sentenced defendant to 189 months. (9/26/96 Tr. at 26; App. [ ]). The offense level was 35 with a criminal history category of I, resulting in a sentencing range of 168 to 210 months. (9/26/96 Tr. at 24). That calculation was derived from a base level of 36, with a two level increase for possession of the firearm pursuant to U.S.S.G. § 2D1.1(b)(1) and a three level decrease for acceptance of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and (b)(1). Id. at 24. The Court declined to apply the safety valve, U.S.S.G. § 5C1.2. Id. at 23-24. After applying the two level enhancement for possession of the firearm under § 2D1.1(b)(1), the court stated:

Now the distance is between not clearly improbable and a preponderance of the evidence that it was, in fact, used in connection with a crime. . . .

I find, and I believe the Guidelines require me to find, that the presence of that weapon in the apartment four to five feet from where the crack cocaine was found, operable weapon, makes it impossible for me to give the two-point reduction under the safety valve.

Id. at 23-24.

Defendant filed a timely notice of appeal. (App. [ ])

SUMMARY OF ARGUMENT

This Court has not yet decided the standard to be applied to the question of whether a defendant's possession of a firearm is "in connection with the offense" for purposes of U.S.S.G.

§ 5C1.2(2). The language of § 5C1.2(2) should be given limited scope, despite guidelines commentary interpreting it broadly to include "relevant conduct." That commentary is not consistent with U.S.S.G. §§ 1B1.3(a) & (b), which define relevant conduct under the guidelines. When interpreted in conjunction with § 1B1.3(b),

§ 5C1.2(2) supports application of the safety valve in this case.

STANDARD OF REVIEW

THE DISTRICT COURT SHOULD HAVE GRANTED DEFENDANT A TWO LEVEL DECREASE PURSUANT TO THE SAFETY VALVE

The safety valve, U.S.S.G. § 5C1.2, authorizes a court to depart from a statutory mandatory minimum sentence if a defendant meets five criteria. The only criterion at issue in this case is the second, which requires that:

the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; . . . .

U.S.S.G. § 5C1.2(2).²This case involves a two level reduction for meeting the safety valve criteria instead of a departure from the mandatory minimum. See U.S.S.G. § 2D1.1(b)(4). This Court has recently interpreted the "possession" requirement of U.S.S.G. § 5C1.2(2). See In re Sealed Case (Sentencing Guidelines' "Safety Valve"), 105 F.3d 1460 (D.C. Cir. 1997) (holding that co-conspirator liability cannot establish possession of firearm under safety valve and evidence did not support constructive possession). That case has little application here, however, because defendant admits possession of the firearm recovered from the apartment one day after he was arrested. The only question raised on appeal is whether defendant's possession of the firearm was "in connection with the offense." In this case, defendant did not possess the firearm in connection with the offense of conviction, which was possession with intent to distribute the drugs found on his person on April 23, 1996.

The Third Circuit has recently interpreted the safety valve in a case that similarly involved the possession of firearms two steps removed from the offense of conviction, where the weapons were connected only to other drug activity. See United States v. Wilson, 106 F.3d 1140, 1143 (3d Cir. 1997). That court noted that application note three of the commentary to the safety valve states that "offense" means the offense of conviction and all relevant conduct,³U.S.S.G. § 5C1.2 comment., n.3. and looked to the definition of "relevant conduct" in U.S.S.G. § 1B1.3(a) to find that the defendant did not qualify for the safety valve.⁴

Two other circuits have interpreted the "in connection with" language of § 5C1.2(2) in cases that did not present the question of whether possession of the firearm could "piggyback" onto other conduct to reach a connection with the offense of conviction. The Eighth Circuit found that the "in connection with" language of § 5C1.2(2) should be interpreted consistently with U.S.S.G. § 2K2.1(b)(5), which authorizes an enhancement to the guidelines level for a firearms offense "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense . . . ." See United States v. Burke, 91 F.3d 1052, 1053 (8th Cir. 1996). The court in Burke cited cases interpreting § 2K2.1(b)(5) to require only a showing of a weapon's physical proximity to drugs, or that a weapon facilitated or had the potential to facilitate a drug offense. Id.

The Tenth Circuit applied a standard involving the "firearm's proximity and potential to facilitate the offense," citing Burke. United States v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996), cert. denied, S. Ct. , 1997 WL 155592 and S. Ct. , 1997 WL 181180 (May 12, 1997). That court also rejected an argument that the standard for possession under the firearm prong of the safety valve is analogous to the standard for "use" under 18 U.S.C. § 924(c), as established in Bailey v. United States, 116 S. Ct. 501 (1995). Id.⁵In this case, defendant received a two level enhancement pursuant to § 2D1.1(b)(1) and neither disputed that enhancement below nor raises it on appeal. (9/26/96 Tr. at 20). The district court's colloquy in this case suggests that it did not apply a "clearly improbable" standard to the safety valve. Id. at 23-24. To the extent that any question remains regarding the proper standard or the standard actually applied by the district court, however, defendant contends that § 2D1.1's "clearly improbable" standard has no relevance to the safety valve. See also In re Sealed Case, 105 F.3d at 1463 (distinguishing 2D1.1(b)(1) from § 5C1.2(2) with respect to possession). In the instant case, the firearm was proximate only to other drugs and it did not have the potential to facilitate the offense of conviction.

The reliance by these courts on other provisions of the guidelines to determine the standard for § 5C1.2(2) should be questioned. As this Court has previously observed, the guidelines were "'written as a unit . . . with greater than customary attention to the relation among sections'" and "explicit cross-referencing." United States v. Chatman, 986 F.2d 1446, 1450 (D.C. Cir. 1993) (citing United States v. Poff, 926 F.2d 588, 594 (7th Cir.) (en banc), (Easterbrook, J., dissenting), cert. denied, 502 U.S. 827 (1991)). In particular, it is significant that application note three to the safety valve mentions relevant conduct but fails to cite § 1B1.3, or to distinguish between §§ 1B1.3(a) and 1B1.3(b).⁶ Section § 1B1.3(a) by its terms applies only to Chapters Two and Three of the guidelines. See U.S.S.G. § 1B1.3(a) (entitled "Chapters Two (Offense Conduct) and Three (Adjustments)." The safety valve is part of Chapter Five of the guidelines, and is thus governed instead by § 1B1.3(b), which states that "[f]actors in Chapters Four and Five that establish the guideline range shall be determined on the basis of the conduct and the information specified in the respective guidelines." U.S.S.G. § 1B1.3(b).

For this reason, application of the definition of relevant conduct in § 1B1.3(a) to the safety valve is not consistent with the explicit terms of §§ 1B1.3(a) & (b). Because the commentary to the safety valve appears to conflict with §§ 1B1.3(a) & (b), the meaning of "offense" in § 5C1.2(2) should be read as the offense of conviction only. See, e.g., United States v. Hernandez, 941 F.2d 133, 139 (2d Cir. 1991) (pursuant to § 1B1.3(b), "type of relevant conduct applicable [to Chapter Four criminal history calculation] is sharply limited to those specific types of conduct that are specified in the particular guidelines sections"); see also Stinson v. United States, 508 U.S. 36, 43 (1993) (commentary that is inconsistent with the guideline it interprets is not upheld); but see United States v. Smith, 991 F.2d 1468, 1471-72 (9th Cir. 1993) (definition of "relevant conduct" in § 1B1.3(a) applies to § 4A1.1(d)-(e)).⁷ This narrower interpretation would also provide a meaningful distinction between the use of the term "offense" alone in subdivisions (2)-(4) and subdivision (5)'s elaboration of "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. If application note three correctly interprets those sections, then the purpose of the use of different language is unclear.

Defendant pled guilty to a single count of possession with intent to distribute over 50 grams of cocaine base. His offense of conviction did not involve the additional half kilo of cocaine base or the weapon later found at his apartment. He admitted possession of the weapon but did not state that he used the weapon in connection with the distribution of drugs. He was not carrying the weapon when he was arrested, and the weapon was not loaded. He cooperated fully with the government. Under these circumstances, it would have been appropriate for the District Court to have found that the gun was not possessed "in connection with the offense," and to have applied the safety valve.

CONCLUSION

Appellant respectfully requests that this Court vacate his sentence and remand this case for resentencing pursuant to the safety valve.

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 brief for appellant, xxxxxxxxx, does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).