USA v. Lloyd Powell, Jr.

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USA v. Lloyd Powell, Jr.

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Case: 09-40598

Document: 00511182636

Page: 1

Date Filed: 07/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 22, 2010 N o . 09-40598 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. L L O Y D WAYNE POWELL, JR., D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 2:09-cr-00042

B e fo r e DENNIS, OWEN, and SOUTHWICK, Circuit Judges. P E R CURIAM:* D e fe n d a n t Lloyd Wayne Powell, Jr. ("Powell") pleaded guilty on February 2 6 , 2009, to one count of possessing with intent to distribute more than 100 k ilo g r a m s of marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). The PreS e n te n c e Report ("PSR") calculated a total base offense level of 23 and a single c r im in a l history point, producing a Guideline range of 46-57 months. The s t a t u t o r y minimum for the crime, however, was five years, and so the Guideline r a n g e became 60 months. 21 U.S.C. § 841(b)(1)(B). Defense counsel made
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-40598

Document: 00511182636

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Date Filed: 07/22/2010

No. 09-40598 o b je c t io n s to the PSR that were accepted, and the amended PSR indicated that t h e defendant was eligible for a safety valve reduction under 18 U.S.C. § 3553(f), w h ic h allows sentences below the statutory minimum for certain low-level drug o ffe n d e r s .1 In order to qualify for the safety valve, a defendant must meet certain c r ite r ia : (1) the defendant does not have more than 1 criminal history point, a s determined under the sentencing guidelines; (2 ) the defendant did not use violence or credible threats of violence o r possess a firearm or other dangerous weapon (or induce another p a r t ic ip a n t to do so) in connection with the offense; (3 ) the offense did not result in death or serious bodily injury to any person; (4 ) the defendant was not an organizer, leader, manager, or s u p e r v is o r of others in the offense, as determined under the s e n t e n c in g guidelines and was not engaged in a continuing criminal e n te r p r is e , as defined in section 408 of the Controlled Substances A c t ; and (5 ) not later than the time of the sentencing hearing, the defendant h a s truthfully provided to the Government all information and e v id e n c e the defendant has concerning the offense or offenses that w e r e part of the same course of conduct or of a common scheme or p la n , but the fact that the defendant has no relevant or useful other in fo r m a t io n to provide or that the Government is already aware of

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The safety valve provision was enacted in response to concerns that mandatory minimums are not compatible with the guideline regime. The provision addressed the following irony: Mandatory minimums had, and have, little real impact on the sentences received by serious repeat offenders, where the guideline calculation arrives at a base offense level higher than the mandatory minimum, and where mitigating factors may therefore be considered. Prior to passage of section 3553(f), however, for the least culpable offenders, mandatory minimums operated to block sentences from reflecting the very mitigating factors that could ease sentences of the more culpable. Ironically, courts were obliged to impose upon the least culpable defendants sentences similar to those imposed on more culpable counterparts. As a House Report noted, the safety valve provision was designed to "permit . . . greater integration between sentencing guideline mitigating factors and mandatory minimums . . . " United States v. Miranda-Santiago, 96 F.3d 517, 527 n.22 (1st Cir. 1996) (citing H.R.Rep. No. 460, 103d Cong., 2d Sess. 4 (1994).

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No. 09-40598 t h e information shall not preclude a determination by the court that t h e defendant has complied with this requirement. 1 8 U.S.C. § 3553(f). The Government does not contest that the first four criteria w e r e satisfied in this case; only the fifth is at issue. T h e defendant's sentencing was originally scheduled for May 14, 2009. T w o days before the original sentencing, defense counsel moved for and was g r a n t e d a continuance. The day before the rescheduled sentencing, on May 27, 2 0 0 9 , the defendant debriefed with a Government agent in order to satisfy the fift h criteria of § 3553(f). The record does not make clear exactly why the d e fe n d a n t did not debrief until the day before the sentencing, although it a p p e a r s to have had something to do with a scheduling conflict between defense c o u n s e l and the agent. The agent who debriefed the defendant was not able to a p p e a r at the sentencing hearing itself, which took place on May 28, 2009. At s e n te n c in g the AUSA present, who was not the lawyer staffed on the defendant's c a s e , indicated that it was her understanding that defense counsel and the A U S A in charge of defendant's case had agreed to ask for a continuance so that t h e Government could verify the information the defendant provided in his d e b r ie f. The district court, however, objected to the request for the continuance, e x p r e s s in g concern that the debrief had happened only the previous day, and t h a t the delay was disrespectful to the district court's need for efficiency in s c h e d u lin g . When the district court stated it was inclined to deny the c o n t in u a n c e , defense counsel requested that the defendant be granted the safety v a lv e . Defense counsel argued that the statute had no verification requirement, a n d that the Government only need believe that the information provided was t r u t h fu l. The district court disagreed, stating: Well, it is a requirement of this Judge that it be verified, to some d e g r e e . . . . How can it be truthful if it's not verified? . . . [P]rior to t h e time of sentencing does not mean that he gets to come the day b e fo r e the court and deny the Government an opportunity to review

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No. 09-40598 t h e information that he gives, because part of that is it's got to be t r u t h fu l information, in the [language of the statute.] . . . And the G o v e r n m e n t 's entitled to check it out. T h e district court explained that it was going to deny the continuance, and that b e c a u s e "[defense counsel] waited until the last minute to debrief . . . it's going t o result in a penalty to [the defendant]." The district court sentenced the d e fe n d a n t to the statutory minimum of 60 months, followed by five years of s u p e r v is e d release. The defendant timely appealed. On appeal the defendant argues that the district court erred in denying h im the safety valve reduction. We review a district court's interpretation of s e n te n c in g statutes and the sentencing guidelines de novo. United States v. C a r te r , 595 F.3d 575, 577 (5th Cir. 2010). A district court's finding that a d e fe n d a n t does not qualify for the operation of the statutory safety valve c o n t a in e d in 18 U.S.C. § 3553(f) is a factual finding reviewed for clear error. U n ite d States v. Edwards, 65 F.3d 430, 432 (5th Cir. 1995). In this case there is b o th a question of statutory interpretation (what the safety valve statute r e q u ir e s for operation) and a question of fact (whether the defendant met the s t a t u t e 's requirements). The district court erred on both fronts. When seeking a safety valve reduction, the defendant bears the burden of p r o v in g his eligibility. United States v. Flanagan, 80 F.3d 143, 145-46 (5th Cir. 1 9 9 6 ). If the Government opposes the safety valve, however, on the grounds that a defendant has not satisfied the fifth criterion ­ i.e., has not truthfully provided a ll the information he has concerning the offense or course of conduct that gave r is e to the crime of conviction ­ it must offer more proof than "mere[] s p e c u la t [ i o n ] . " United States v. Miller, 179 F.3d 961, 969 (5th Cir. 1999). "[A] m e r e challenge to factual findings at sentencing does not automatically exclude a p p lic a t io n of [the safety valve]." United States v. Edwards, 65 F.3d 430, 433 (5 t h Cir. 1995). Thus, "where a defendant in her submissions credibly

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No. 09-40598 d e m o n s t r a t e s that she has provided the government with all the information she r e a s o n a b ly was expected to possess, in order to defeat her [claim to the safety v a lv e ], the government must at least come forward with some sound reason to s u g g e s t otherwise." United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1 9 9 6 ); see also Miller, 179 F.3d at 969 (quoting Miranda-Santiago approvingly a n d at length). In other words, "[t]he government cannot assure success simply b y saying, `We don't believe the defendant,' and doing nothing more." MirandaS a n tia g o , 96 F.3d at 529. I n this case the AUSA offered no specific doubts as to the veracity of the d e fe n d a n t 's debriefing, and in fact did not even suggest that information was s u s p e c t e d of being untruthful, saying only: "This Defendant would be safety v a lv e eligible, might be. He did debrief, but just yesterday. The agent has not h a d an opportunity to corroborate the statements." Our cases make clear that t h is was insufficient to disqualify the defendant from receiving the safety valve r e d u c t io n on the basis of failing to satisfy the statute's fifth requirement. As for t h e district court's implicit holding that the statute requires a defendant to give t h e Government an unspecified period of time in which to corroborate his in fo r m a t io n before sentencing, we are in accord with our sister circuits in having h e ld that the statute requires only that the defendant debrief prior to the c o m m e n c e m e n t of the sentencing hearing. See United States v. Brenes, 250 F.3d 2 9 0 , 293 (5th Cir. 2001) (holding that the statute requires debriefing by the "the t im e of the commencement of the sentencing hearing" and that a defendant is n o t entitled to the safety valve if he waits to provide truthful information until h is sentencing hearing has already begun). See also United States v. MejiaP im e n ta l, 477 F.3d 1100, 1106 (9th Cir. 2007) ("a defendant satisfies his . . . o b lig a t io n by providing the Government with truthful, complete information by t h e time of the sentencing hearing"); United States v. Madrigal, 327 F.3d 738, 7 4 5 -4 6 (8th Cir. 2003) (holding that the statute requires disclosure only by the 5

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No. 09-40598 t im e of the sentencing hearing and that the continuance of a sentencing hearing d id not change this deadline); United States v. Brownlee, 204 F.3d 1302, 1305 (1 1 t h Cir. 2000) ("We follow those circuits who have held that lies and omissions d o not, as a matter of law, disqualify a defendant from safety-valve relief so long a s the defendant makes a complete and truthful proffer not later than the c o m m en ce m en t of the sentencing hearing."); United States v. Schreiber, 191 F.3d 1 0 3 , 106 (2d Cir. 1999) ("The plain words of the statute provide only one deadline fo r compliance . . . . Indeed the text provides no basis for distinguishing among d e fe n d a n t s who make full disclosure immediately upon contact with the g o v e r n m e n t , defendants who disclose piecemeal as the proceedings unfold, and d e fe n d a n t s who wait for the statutory deadline by disclosing `not later than' s e n te n c in g ." ); United States v. Marin, 144 F.3d 1085, 1091 (7th Cir. 1998) (in t e r p r e t in g "the timing requirement to require complete and truthful d is c lo s u r e by the time of the commencement of the sentencing hearing" but h o ld in g that a defendant may not earn the safety valve by providing truthful in fo r m a t io n only halfway through his sentencing). W e are not unaware of the policy concerns expressed by the district court ­ but these policy concerns are not reflected in the language of the statute. As t h e Ninth Circuit has explained, "[p]olicy concerns about the need for defendants t o cooperate in the most helpful and efficient manner with the Government do n o t present a compelling justification for stretching the plain meaning of the s t a t u t e [to require disclosure earlier than by the time of the sentencing h e a r in g ]." Mejia-Pimental, 447 F.3d at 1106. Some of our sister circuits allow the d is t r ic t court to take account of the circumstances of the proffer (including its t im in g ) in evaluating the truthfulness of the debriefing for purposes of applying t h e safety valve. See Schreiber, 191 F.3d at 108 ("the facts surrounding a d e b r ie fin g , or the lack of a debriefing, become part of the total mix of evidence fo r the district court to consider in evaluating the completeness and truthfulness 6

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No. 09-40598 o f the defendant's proffer"); Brownlee, 204 F.3d at 1305 (quoting and following S c h r e ib e r ). Others require the district court to grant the safety valve but allow i t to take account of any circumstances surrounding the proffer as part of the u lt im a te sentence through exercising its discretion under the § 3553(a) s e n te n c in g factors. See Mejia-Pimental, 447 F.3d at 1106 ("[T]o the extent that t h is conduct is not fully captured by the advisory Guidelines, the factors listed in 18 U.S.C. § 3553(a) allow district courts to account for reluctant cooperation b y tailoring individual sentences accordingly"). Our case law makes clear that (1) the defendant need not debrief and p r o v id e truthful information at any particular time except prior to the c o m m e n c e m e n t of the sentencing hearing, see Brenes, 250 F.3d at 293, and (2) if the Government wants to oppose the operation of the safety valve for an o t h e r w is e -q u a lifie d defendant on the basis of an allegedly untruthful proffer, it m u s t do more than simply state it does not believe the defendant, much less s t a t e , as in this case, that it simply has no position on the information's t r u t h fu ln e s s , see Miller, 179 F.3d at 969. However, the safety valve provisions o f 18 U.S.C. § 3553(f) do not require a court to accept a defendant's proffer as t r u t h fu l when that proffer is made at so late a date that the Government has not h a d a reasonable period of time to verify the information provided by the d e fe n d a n t . Under such circumstances, the district court has the discretion to g r a n t a continuance to allow the Government to assess the truthfulness of the in fo r m a t io n . The defendant in this case debriefed prior to the commencement o f the sentencing hearing, and the Government requested a continuance to a t t e m p t to verify the information that had been provided. The district court d e n ie d that request. Under these circumstances, the district court erred in d e n y in g the safety valve. We therefore REVERSE and REMAND for further p r o c e e d in g s consistent with this opinion.

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