Tuesday, February 20, 2007

Court Overlooks Guideline Commentary Regarding Availability of Mitigating Role Adjustment, Rejects Fear-Of-Consequences Exception to Safety Valve

United States v. Washington, No. 05-30163 (5th Cir. Feb. 19, 2007) (Smith, Garza, Owen) (This is actually a consolidated appeal, but I'll address each defendant in separate posts because a single post would be way too long.)

Washington was convicted of conspiring to distribute 100 kilograms or more of marijuana (21 U.S.C. §§ 841, 846). "The factual basis for Washington's [guilty] plea established his involvement in an operation involving more than 4,000 pounds of marijuana, which were transported from Dallas to Shreveport. Washington's role was to store the marijuana at his property in Shreveport." Slip op. at 2. The district court sentenced him to 108 months' imprisonment, which was the high end of the guideline range calculated by the court.

On appeal, Washington argued that the district court erred by not applying safety-valve or minor-role adjustments when calculating his guidelines, and that his sentence was unreasonable. The court rejected all three of Washington's arguments.

Safety Valve
The district court refused to apply the 2-level safety valve adjustment under §2D1.1 because the Government claimed that Washington failed to "truthfully provide[] to the Government all information and evidence [he had] concerning the offense . . . ." Slip op. at 3 (quoting U.S.S.G. §5C1.2(a)(5)). Specifically, the Government complained that Washington refused to explain his role in the conspiracy, to tell the Government whether he used certain guns in the offense, or to reveal how much he was being paid. "Washington asserted that his lack of cooperation was based in part on his fear of reprisal[,]" and that such fear "justified his conduct, entitling him to the 2-point reduction." Slip op. at 3.

The Fifth Circuit had never confronted this issue before, but according to the court all eight courts of appeals that have addressed this argument have rejected it. The court followed the decisions of those other circuits and declined to create a "fear-of-consequences" exception to the safety valve's disclosure requirement.

Mitigating Role Adjustment
Washington argued that "he should have received a mitigating-role reduction under U.S.S.G. § 3B1.2 because his only involvement in the conspiracy was storing the drugs." Not a bad argument, given the guideline's commentary on the applicability of the adjustment:
A defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or storing drugs and who is accountable under §1B1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline.

U.S.S.G. §3B1.2, comment. (n.3(A)). That commentary was added to the guideline to resolve a circuit split on the issue, and became effective November 1, 2001. See U.S.S.G. App. C, amend. 635. It appears that the 2004 Guidelines applied to this case, so application note 3(A) should be controlling on the issue of Washington's mitigating-role eligibility.

Nevertheless, the court seems to have overlooked application note 3(A). It held that
[t]he district court did not err in refusing to grant the mitigating-role reduction. Washington was not charged or sentenced based on some larger conspiracy involving more drugs than he stored; he was only charged and sentenced based on the drugs stored on his property. Accordingly, he is not entitled to a mitigating-role reduction under section 3B1.2.

Slip op. at 5. In fact, the opinion doesn't mention application note 3(A) at all. It instead cites as authority United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001), a case involving a pre-2001 version §3B1.2. (The court also cites three more recent unpublished cases.) However, the Sentencing Commission expressly rejected Garcia's approach to this issue when it adopted Amendment 635. Of course, there's still the factual question of exactly what Washington's role was, but the court's holding on the threshold elibility question is flatly contrary to the controlling guideline commentary.

The presumption of reasonableness carried the day.

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Anonymous Anonymous said...

the fact is daniels and Washington murdered the two men that snitched on them in Shreveport. They got away with a double murder. Danny shot HollyWood in the head.

1/10/2010 01:45:00 PM  

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