United States v. Plunkett, Hugh O.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 1997 Decided October 3, 1997

No. 96-3140

United States of America,

Appellee

v.

Hugh O. Plunkett, a/k/a Dennis Ivan Hunter,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00207-01)

Beverly G. Dyer, Assistant Federal Public Defender, ar-

gued the cause for appellant, with whom A.J. Kramer, Feder-

al Public Defender, was on the briefs. Neil H. Jaffee,

Assistant Federal Public Defender, entered an appearance.

Carmen R. Kelley, Assistant U.S. Attorney, argued the

cause for appellee, with whom Eric H. Holder, Jr., U.S.

Attorney at the time the brief was filed, John R. Fisher, Roy

W. McLeese, III, and Nancy Page, Assistant U.S. Attorneys,

were on the briefs.

Before: Silberman, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: The Sentencing Guideline commonly known as

the "safety valve" limits the applicability of statutory mini-

mum sentences in certain cases. U.S. Sentencing Guidelines

Manual s 5C1.2 (1995) [hereinafter U.S.S.G.]. A defendant

who qualifies for the safety valve also receives a two-level

reduction in offense level under U.S.S.G. s 2D1.1(b)(4). To

qualify, a defendant must overcome five hurdles, one of which

is that the defendant must not have "possess[ed] a firearm

... in connection with the offense." Id. s 5C1.2(2). Applica-

tion Note 3 to the safety valve defines the word "offense" to

mean "the offense of conviction and all relevant conduct." Id.

application note 3. Appellant Hugh O. Plunkett appeals his

conviction on the principal ground that the district court

erred as a matter of law in using this broad definition of

"offense" to deny him the two-level reduction under U.S.S.G.

s 2D1.1(b)(4). We affirm.

I.

Following his indictment on six narcotics- and weapons-

related counts, Plunkett pled guilty to one count of possession

with intent to distribute more than 50 grams of crack, a form

of cocaine base. See 21 U.S.C. s 841(a)(1), (b)(1)(A)(iii) (1988

& Supp. V 1993). Under the terms of the plea agreement, his

plea related only to the drugs found on his person when he

was arrested, and not to more than 500 grams of crack and a

firearm found the next day in his apartment. For sentencing

purposes, however, Plunkett acknowledged as part of his plea

agreement his responsibility for the additional crack and the

firearm.

The district court sentenced Plunkett to 189 months impris-

onment. Starting from a base offense level of 36, see

U.S.S.G. s 2D1.1(c)(2), the court imposed a two-level increase

for possession of a firearm under U.S.S.G. s 2D1.1(b)(1) and

a three-level reduction for acceptance of responsibility under

U.S.S.G. s 3E1.1(a), resulting in an offense level of 35. The

court found that Plunkett could not qualify for the safety

valve because, under Application Note 3, his firearm posses-

sion was part of the offense as "relevant conduct"; thus, the

court could not apply the two-level reduction under U.S.S.G.

s 2D1.1(b)(4). Because Plunkett had no prior criminal rec-

ord, the sentencing range was between 168 and 210 months,

and the court chose a sentence at the midpoint of that range.

II.

On appeal, Plunkett contends that the provision in the

safety valve barring eligibility as a result of firearm posses-

sion "in connection with the offense" depends only on the

offense of conviction--here, a conviction based solely on the

drugs found on his person at the time of his arrest--and not,

as the government maintains, the offense of conviction and all

relevant conduct--here, the greater drug distribution scheme,

including the crack found at his apartment. Specifically, he

contends that the district court erred as a matter of law in

applying Application Note 3 because it is inconsistent with

both the safety valve and the provision in the Guidelines

entitled "Relevant Conduct," U.S.S.G. s 1B1.3. Because

these arguments were not presented to the district court, our

review is for plain error,1 see United States v. Robinson, 86

F.3d 1197, 1199 (D.C. Cir. 1996), and we find none.

First, we are unpersuaded that Application Note 3's inter-

pretation of the safety valve is invalid because it purportedly

negates any difference between the word "offense," used in

__________

1 We acknowledge that both counsel discussed the scope of the

"offense" under the safety valve at some length with the district

court, but we fail to find any reference to the particular arguments

advanced on appeal. Indeed, defense counsel appeared not to

contest that the offense for purposes of the safety valve included

the entire drug distribution scheme, not just the offense of convic-

tion. We cannot agree with Plunkett that on appeal he has simply

"provided additional detail in support of his argument" or that "his

arguments at sentencing and on appeal are one and the same."

three subsections of the safety valve, U.S.S.G. s 5C1.2 (2)-(4),

and the phrase "the offense or offenses that were part of the

same course of conduct or of a common scheme or plan," used

in another subsection, U.S.S.G. s 5C1.2(5). Even if Applica-

tion Note 3 is viewed, in this respect, as somewhat odd,

"[c]ommentary is not 'inconsistent' with a guideline simply

because it adopts what [this court] might regard as one of the

less likely interpretations of a guideline." Robinson, 86 F.3d

at 1199 (citing United States v. Smaw, 22 F.3d 330, 333 (D.C.

Cir. 1994)). Application Note 3 does not adopt an interpreta-

tion of the safety valve so implausible as to be invalid. See

United States v. Wilson, 106 F.3d 1140, 1144 (3d Cir. 1997);

see also United States v. Burke, 91 F.3d 1052, 1052-53 (8th

Cir. 1996). Indeed, the definition in Application Note 3 is the

same definition as appears in the commentary to the guideline

entitled "Application Instructions," in the part of the Guide-

lines concerning general application principles. See U.S.S.G.

s 1B1.1 application note 1(l).

Further, there is no inconsistency, much less the "flat

inconsistency" necessary to invalidate commentary, Stinson v.

United States, 508 U.S. 36, 43 (1993), between Application

Note 3 and the guideline that defines "relevant conduct." 2

Subsection (a) of that guideline, U.S.S.G. s 1B1.3, provides

that, for purposes of Chapters Two and Three of the Sentenc-

ing Guidelines, the district court should consider a broad

range of conduct, whereas subsection (b) provides: "Factors

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.

s 1B1.3. Plunkett's possession of the contraband found in his

apartment would qualify as relevant conduct under subsection

__________

2 We reject the government's suggestion that, under the lan-

guage of Stinson, challenges to guideline commentary based on

inconsistency with a guideline are allowed only when the commen-

tary is inconsistent with the particular guideline it interprets. See

Stinson, 508 U.S. at 38. The rationale of the opinion, that commen-

tary has a status akin to an agency's interpretation of its own

regulations, see id. at 44, applies equally to conflicts between the

commentary to one guideline and the language of another.

(a), but the safety valve appears in Chapter Five and subsec-

tion (b) applies. The exclusion of Chapters Four and Five

from subsection (a) does not, however, imply that courts

applying the factors under these chapters under subsection

(b) should be unable to consider a similarly broad range of

relevant conduct. Subsection (a) is a background rule, valid

"in the absence of more explicit instructions in the context of

a specific guideline," while "[n]o such rule of construction is

necessary with respect to Chapters Four and Five because

the guidelines in those Chapters are explicit as to the specific

factors to be considered." U.S.S.G. s 1B1.3 background.

Application Note 3 is not precluded by subsection (b). Al-

though subsection (a) does not apply of its own force in

construing the safety valve, the natural and reasonable as-

sumption is that the use of the phrase "relevant conduct" in

Application Note 3 refers to subsection (a), which contains the

only definition of "relevant conduct" in the guideline so

entitled. See id. s 1B1.3(a).

Moreover, while implicit cross-referencing is disfavored in

light of the norm of explicit cross-referencing in the Guide-

lines, see United States v. Chatman, 986 F.2d 1446, 1450

(D.C. Cir. 1993), it is appropriate where other considerations

so dictate. Plunkett maintains, citing Chatman, that because

Application Note 3 does not mention U.S.S.G. s 1B1.3(a), the

definition from that provision should not apply. Chatman,

however, will not bear the weight he would have it carry. In

that case, as here, the court was considering whether to

interpret a term in one guideline in accordance with another

guideline. But the similarity ends there. In Chatman,

"[n]othing in the Guidelines themselves or in the Application

Notes" suggested that one guideline should control the other,

Chatman, 986 F.2d at 1450, and the term in question was not

defined in that section "or anywhere else in the Guidelines,"

id. at 1449. Here, the disputed phrase is the very title of

another guideline. "[R]elevant conduct" also cannot mean

only the offense of conviction, as Plunkett contends, since

there would then be no reason for Application Note 3 to

mention "relevant conduct" in addition to the offense of

conviction.3 Using U.S.S.G. s 1B1.3(a), a definition from the

part of the Guidelines dealing with general application princi-

ples, comports with the structural scheme of the Guidelines.

Other circuits appear to agree.4

Finally, the district court did not plainly err in finding that

the safety valve did not apply to Plunkett, although we need

not resolve the relationship between the standard for the

safety valve and the standard that governs the two-level

enhancement for weapon possession under U.S.S.G.

s 2D1.1(b)(1). The commentary to the enhancement provi-

sion instructs that the two-level upward "adjustment should

be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense."

U.S.S.G. s 2D1.1 application note 3. Plunkett maintains that

the "clearly improbable" standard has no relevance to the

safety valve's reference to use or possession of a firearm "in

connection with the offense" and notes that this court has

distinguished between weapons possession under the en-

hancement guideline and the safety valve. See In re Sealed

Case (Sentencing Guidelines' "Safety Valve"), 105 F.3d 1460,

1463 (D.C. Cir. 1997). Even assuming that he is correct that

the usual preponderance of the evidence standard applies,5

see United States v. Montague, 40 F.3d 1251, 1254 (D.C. Cir.

__________

3 In addition, the broader definition of "offense" in Application

Note 3 is consistent with congressional intent in enacting the safety

valve. Congress meant the safety valve to prevent the situation in

which the "least culpable offenders may receive the same sentences

as their relatively more culpable counterparts." H.R. Rep. No.

103-460, at 4 (1994). If other relevant conduct has bearing upon

the offender's culpability, the district court appropriately considers

such conduct in applying the safety valve. Given this intent it

would be odd if eligibility for sentencing under the safety valve

precluded consideration of relevant conduct.

4 See Wilson, 106 F.3d at 1143; Burke, 91 F.3d at 1053; United

States v. Smith, 991 F.2d 1468, 1471-72 (9th Cir. 1993). Plunkett

cites no direct support for his contention.

5 We need not address Plunkett's contention that the govern-

ment should bear the burden of proof to demonstrate a defendant's

ineligibility for the safety valve, for prevailing on this issue would

not change the disposition of his appeal.

1994); see also United States v. Gambino, 106 F.3d 1105,

1110 (2d Cir. 1997); United States v. Ramirez, 94 F.3d 1095,

1101 (7th Cir. 1996); United States v. Ajugwo, 82 F.3d 925,

929 (9th Cir. 1996), Plunkett appears to recognize, by treating

the issue in a footnote, that he could not meet his burden to

show plain error in this regard.6 See United States v. Olano,

507 U.S. 725, 732 (1993).

Accordingly, we affirm the judgment of conviction.

__________

6 In light of our disposition we do not address whether imposi-

tion of a two-level enhancement for when "a dangerous weapon ...

was possessed" under U.S.S.G. s 2D1.1(b)(1) should preclude appli-

cation of a two-level decrease under the safety valve and U.S.S.G.

s 2D1.1(b)(4) as a matter of law. We note, however, that the

government concedes, in light of In re Sealed Case (Sentencing

Guidelines' "Safety Valve"), 105 F.3d 1460 (D.C. Cir. 1997), that

automatic preclusion should not apply at least when the two-level

enhancement is based solely on vicarious or co-conspirator liability.

See id. at 1462-63.