United States v. Sabir

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

6-30-1997

United States v. Sabir

Precedential or Non-Precedential:

Docket 96-5626

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Filed June 30, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-5626

UNITED STATES OF AMERICA

v.

FAHIM SABIR, a/k/a Salah Rasool

Fahim Sabir,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Crim. No. 92-00659-3)

Submitted under Third Circuit LAR 34.1(a)

June 23, 1997

BEFORE: GREENBERG, MCKEE, and WELLFORD,*

Circuit Judges

(Filed: June 30, 1997)

_________________________________________________________________

*Honorable Harry W. Wellford, Senior Judge of the United States Court

of Appeals for the Sixth Circuit, sitting by designation.

Kevin McNulty

Assistant U.S. Attorney

Elizabeth S. Ferguson

Assistant U.S. Attorney

Faith S. Hochberg

United States Attorney

970 Broad Street

Room 502

Newark, NJ 07102

Attorneys for Appellee

James J. Plaia

10 South Prospect Street

Verona, NJ 07044

Attorney for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This case comes before this court on Fahim Sabir's

appeal from the sentence the district court imposed on him

after he pleaded guilty to conspiracy to distribute more

than 100 grams of heroin contrary to 21 U.S.C. § 841(a)(1),

in violation of 21 U.S.C. § 846. Sabir entered the plea

pursuant to a plea agreement which stipulated that he had

demonstrated affirmative acceptance of responsibility

entitling him to a 3-level decrease in his offense level

pursuant to U.S.S.G. § 3E1.1 ("section 3E1.1"). At the

sentencing, after the court awarded Sabir the 3-level

decrease, it calculated his total offense level at 23 which,

when applied to his criminal history category of I, yielded a

sentencing range of 46 to 57 months under the sentencing

guidelines. Nevertheless, 21 U.S.C. § 841(b)(1)(B)

established a mandatory minimum sentence of five years

for the offense so that ordinarily the sentencing range

would not have been material to his sentence.

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Sabir, however, urged at his sentencing that the court

should sentence him under the guidelines without regard

for the statutory minimum sentence, pursuant to the safety

valve provisions in 18 U.S.C. § 3553(f), adopted in 1994 as

a portion of the Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, § 80001,

108 Stat. 1796, 1985-86. The safety valve provisions have

been incorporated verbatim into the sentencing guidelines

as U.S.S.G. § 5C1.2, but as a matter of convenience we will

refer only to the statutory citations. The safety valve

provisions establish that a defendant shall be sentenced

pursuant to the sentencing guidelines without regard to

any statutory minimum sentence in certain drug offense

cases in the event that the following five conditions are met:

(1) the defendant does not have more than 1 criminal

history point, as determined under the sentencing

guidelines;

(2) 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;

(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 supervisor of others in the offense, as

determined under the sentencing guidelines and was

not engaged in a continuing criminal enterprise, as

defined in 21 U.S.C. 848; and

(5) not later than the time of the sentencing hearing,

the defendant has truthfully provided to the

Government all information and evidence the defendant

has concerning the offense or offenses that were part of

the same course of conduct or of a common scheme or

plan, but the fact that the defendant has no relevant or

useful other information to provide or that the

Government is already aware of the information shall

not preclude a determination by the court that the

defendant has complied with this requirement.

18 U.S.C. § 3553(f). Not surprisingly, most of the disputes

in the reported cases involving the safety valve provisions

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center on the fifth condition, 18 U.S.C. § 3553(f)(5) ("section

3553(f)(5)"), which requires the defendant truthfully to

provide certain information to the government. The

government does not claim that Sabir's offense could not

qualify for disposition under the safety value provisions if

the five statutory conditions are satisfied.

The district court rejected Sabir's claim that the safety

valve provisions were applicable:

The final criteria is that not later than the time of the

sentencing hearing the defendant has truthfully

provided to the government all information and

evidence he has concerning the offense or offenses that

were part of the same course of conduct or of a

common scheme or plan.

Defendant does not meet this criteria. According to

the government the defendant gave two proffers, and in

each he minimized his role. To this day of sentencing

he continues to minimize his role and fails to give a full

forthright account of his activities either to the

Probation Department or to the government. Therefore

he's not entitled to the benefit of either the safety valve

or the resulting two level downward adjustment.1

Supp. app. at 15-16. Thus, the court sentenced Sabir to 60

months in prison followed by a four-year term of supervised

release. In addition, the court fined Sabir $2,500. Sabir

then appealed.

II. DISCUSSION

On this appeal Sabir makes two contentions. First, he

contends "that if one is sufficiently candid to get acceptance

_________________________________________________________________

1. We are not completely clear as to what the district court meant when

it indicated that Sabir was not entitled to the benefit of "the resulting

two level downward adjustment." The safety valve provisions do not

provide for a downward adjustment in the offense level but the court did

allow Sabir a 2-level downward adjustment in his offense level for

acceptance of responsibility under section 3E1.1(a). Probably the court

was referring to the fact that at the sentencing it already had denied

Sabir a 2-level decrease in his offense level which Sabir sought under

U.S.S.G. § 3B1.2(b) for being a minor participant in the criminal activity.

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of responsibility, it is contradictory to say that he

minimized his role." Br. at 9. Thus, in his view, the court's

finding that he accepted responsibility should entitle him to

the benefit of the safety valve provisions, but the court

denied him that advantage because it found he minimized

his role in the offense. Second, he contends that he

complied with section 3553(f)(5) which required him to

provide the government with "all information and evidence

[he] has concerning the offense or offenses that were part of

the same course of conduct or of a common scheme or

plan." We exercise plenary review over Sabir's first

contention as we regard it as raising a legal question, but

we can reject the court's findings that Sabir did not provide

the information and evidence only if we conclude that the

findings were clearly erroneous. See United States v.

Wilson, 106 F.3d 1140, 1142-43 (3d Cir. 1997).

Section 3E1.1 provides for a decrease in the offense level

on the basis of the defendant's acceptance of responsibility:

(a) If the defendant clearly demonstrates acceptance

of responsibility for his offense, decrease the offense

level by 2 levels.

(b) If the defendant qualifies for a decrease under

subsection (a), the offense level determined prior to the

operation of subsection (a) is level 16 or greater, and

the defendant has assisted authorities in the

investigation or prosecution of his own misconduct by

taking one or more of the following steps:

(1) timely providing complete information to the

government concerning his own involvement in the

offense; or

(2) timely notifying authorities of his intention to

enter a plea of guilty, thereby permitting the

government to avoid preparing for trial and

permitting the court to allocate its resources

efficiently,

decrease the offense level by 1 additional level.

We do not doubt that frequently a defendant entitled to

a 2- or 3-level reduction in his offense level by reason of

acceptance of responsibility will be entitled to the benefit of

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the safety valve provisions as well so that he or she will be

sentenced under the guidelines without regard for any

statutory minimum sentence. Yet the acceptance of

responsibility provisions in the guidelines plainly do not

subsume all of a defendant's responsibilities under the

safety valve provisions. In United States v. Arrington, 73

F.3d 144 (7th Cir. 1996), the district court determined that

the defendant was not entitled to the benefit of the safety

valve provisions because he did not satisfy section

3553(f)(5), even though the court allowed him a 2-level

reduction in his offense level under section 3E1.1(a) for

acceptance of responsibility and a 1-level reduction under

section 3E1.1(b)(2) for entering a timely plea of guilty. On

appeal the defendant argued "that it is inconsistent to hold

that he truthfully admitted his offense conduct under

§ 3E1.1(a) but did not truthfully provide all the information

concerning his offense under § 3553(f)(5)." Arrington, 73

F.3d at 149. The Court of Appeals for the Seventh Circuit

rejected that contention:

We agree with the district court that the admission of

responsibility necessary to obtain a reduction under

§ 3E1.1(a) is not necessarily sufficient to satisfy

§ 3553(f)(5). Section 3553(f)(5) requires more

cooperation than § 3E1.1(a): § 3553(f)(5) requires the

defendant to provide `all information . . . concerning the

offense or offenses that were part of the same course of

conduct or of a common scheme or plan,' whereas

§ 3E1.1(a) requires that he admit `the conduct

comprising the offense(s) of conviction.' The distinction

between the two is not insignificant. Although

§ 3E1.1(a) forbids a defendant from falsely denying

relevant conduct, see U.S.S.G. § 3E1.1, comment.

(n.1(a)), it imposes no duty on a defendant to volunteer

any information aside from the conduct comprising the

elements of the offense. Id. In contrast, § 3553(f) states

that a defendant must disclose `all information'

concerning the course of conduct--not simply the facts

that form the basis for the criminal charge.

Accordingly, the district court correctly held that

§ 3553(f)(5) requires more than § 3E1.1(a).

Arrington, 73 F.3d at 149.

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Arrington does not stand alone in the foregoing holding.

In United States v. Adu, 82 F.3d 119 (6th Cir. 1996), the

Court of Appeals for the Sixth Circuit rejected an argument

similar to that the appellant advanced in Arrington, holding

as follows:

The defendant did not carry his burden of proving

that he was eligible for sentencing below the prescribed

mandatory minimum. The requirement of U.S.S.G.

§ 5C1.2 that a defendant provide the government `all

information and evidence the defendant has concerning

the offense or offenses that were part of the same

course of conduct or of a common scheme or plan' is

greater than the requirement for an acceptance of

responsibility reduction under U.S.S.G. § 3E1.1.

Application Note 1 to § 3E1.1 states that a defendant is

not required to volunteer, or affirmatively admit,

relevant conduct beyond the offense of conviction in

order to obtain a two-level reduction. To qualify under

§ 5C1.2, however, a defendant must truthfully provide

all information he has concerning the offense of

conviction and all relevant conduct. United States v.

Long, 77 F.3d 1060 (8th Cir. 1996); Application Note 3

to § 5C1.2. Thus, the fact that the defendant qualified

for a two-level acceptance of responsibility reduction

under § 3E1.1 does not establish eligibility for a safety

valve reduction under § 5C1.2. United States v.

Arrington, 73 F.3d 144, 149 (7th Cir. 1996).

Adu, 82 F.3d at 124. See also United States v. Ivester, 75

F.3d 182, 184 (4th Cir.) ("Section 3553(f)(5) requires more

than accepting responsibility for one's own acts."), cert.

denied, 116 S.Ct. 2537 (1996).

We agree with the holdings in Arrington and Adu that the

mere fact that a defendant is entitled to a 2- or 3-level

reduction in his offense level for acceptance of

responsibility does not establish that the defendant has

satisfied the requirements of section 3553(f)(5). Section

3553(f) and section 3E1.1 are not coterminus. For example,

whereas section 3E1.1 focuses on the defendant's

acceptance of individual responsibility, section 3553(f)

requires the defendant to reveal a broader scope of

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information about the relevant criminal conduct to the

authorities.

However, we find questionable the language in Adu

describing the requirements of section 3553(f)(5) as"greater

than the requirement for an acceptance of responsibility

reduction under U.S.S.G. § 3E1.1." Adu, 82 F.3d 124. Our

questioning of Adu is based on the potential implications of

the word "greater" on the relationship between section

3553(f)(5) and section 3E1.1. After all, the safety valve and

acceptance of responsibility provisions have different

elements, so that the acceptance of responsibility provision

is not a lesser-included requirement of the safety valve

provisions. See United States v. Shrestha, 86 F.3d 935,

939-40 (9th Cir. 1996) (holding that defendant need not

satisfy requirements of section 3E1.1 to be eligible for relief

under section 3553(f)); United States v. Acosta-Olivas, 71

F.3d 375, 379 (10th Cir. 1995) (emphasizing differences

between section 3553(f)(5) and section 3E1.1). Indeed, the

Court of Appeals for the Seventh Circuit recently has

clarified that Arrington did not hold that a finding that the

safety valve provisions of section 3553(f) apply also means

the defendant has complied with the acceptance of

responsibility provisions of section 3E.1.1. United States v.

Webb, 110 F.3d 444, 447 (7th Cir. 1997) ("Arrington does

not imply that every defendant who receives a § 5C1.2 (or a

§ 3553(f)) reduction must receive a § 3E1.1(a) reduction.

Section 5C1.2(5) in one respect demands more of an effort

from the defendant than § 3E1.1(a) . . . but in other

respects may demand less."). Consequently, we do not hold

that a defendant entitled to the benefit of the safety valve

provisions necessarily is entitled to a reduction in his or

her offense level for acceptance of responsibilty. Indeed,

that issue is not even before us. Yet our possible

disagreement with Adu on this issue does not undermine

the usefulness of that case on the point for which we cite

it, i.e., that the mere fact that a defendant is entitled to a

reduction of his offense level by reason of his acceptance of

responsibility does not establish that he has satisfied the

requirements of section 3553(f)(5).

We also reject Sabir's contention that he was entitled to

the benefit of the safety valve provisions because he in fact

8

complied with section 3553(f)(5). Sabir, of course, had the

burden to show by a preponderance of the evidence that

the safety valve provisions were applicable to his case. See

United States v. Ramirez, 94 F.3d 1095, 1100-02 (7th Cir.

1996). The district court pointed out that Sabir minimized

his role in the offense and to the day of the sentencing

failed to give a "full forthright account of his activities either

to the Probation Department or to the government." This

finding was not clearly erroneous. In the circumstances, we

hold, exercising plenary review, that Sabir did not

"truthfully provide[ ] to the Government all information and

evidence" he had concerning the offense. After all, he surely

knew his own role in the offense, yet he did not disclose it

completely.

In rejecting Sabir's second contention, we have not lost

sight of his argument that he cannot have minimized his

role in the offense, as the court found that he had accepted

responsibility and thus was entitled to the 2-level decrease

in his offense level under section 3E1.1(a). While there is a

certain logic in this argument, in view of the specific nature

of the court's finding that Sabir minimized his role in the

offense, acceptance of the argument that the court's

findings under section 3E1.1(a) and section 3553(f)(5) were

inconsistent so that both could not stand, rather than

leading to an application of the safety valve provisions,

would lead to a denial of a downward adjustment in his

offense level for acceptance of responsibility. We, however,

will not consider that possibility further as the government

has not challenged the court's allowance of the downward

adjustment of the offense level.2

_________________________________________________________________

2. Actually, Sabir may have been treated more leniently than the facts

warranted when the court sentenced him to a 60-month custodial term.

Denial of a 2-level decrease in his offense level under section 3E1.1(a)

also would have denied him the 1-level decrease under section 3E1.1(b),

thus leading to a total offense level of 26 and a guidelines range of 63

to 78 months.

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III. CONCLUSION

In view of the aforesaid, we will affirm the judgment of

conviction and sentence of September 4, 1996.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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