United States v. Warren

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

8-7-2003

USA v. Warren

Precedential or Non-Precedential: Precedential

Docket No. 02-3110P

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PRECEDENTIAL

Filed August 7, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3110

UNITED STATES OF AMERICA

v.

ISAIAH WARREN,

Appellant

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 00-cr-00115)

District Judge: The Honorable Donald E. Ziegler

Argued: May 14, 2003

Before: RENDELL, SMITH and ALDISERT, Circuit Judges

(Filed: August 7, 2003)

SHELLEY STARK, Federal Public

Defender

LISA B. FREELAND, Assistant

Federal Public Defender (argued)

1450 Liberty Center

1001 Liberty Avenue

Pittsburgh, PA 15222

ATTORNEYS FOR APPELLANT

2

MARY BETH BUCHANAN,

United States Attorney

GREGORY NESCOTT,

Assistant United States Attorney

BONNIE R. SCHLUETER,

Assistant United States Attorney

KELLY R. LABBY, Assistant

United States Attorney (argued)

633 U.S. Post Office and Courthouse

Pittsburgh, PA 15219

ATTORNEYS FOR APPELLEE

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal by Isaiah Warren from his sentence in the

United States District Court for the Western District of

Pennsylvania following a guilty plea requires us to decide

whether a defendant may invoke the Fifth Amendment and

refuse to provide the government with additional

information pursuant to Title 18, United States Code,

Section 3553(f)(5), incorporated by United States

Sentencing Guideline § 5C1.2 (the “Safety Valve”) and still

have the advantage of these provisions.1 We affirm the

1. Warren also argues that the sentencing court failed to give an

adequate explanation of the “effect” of a supervised release term. Rule

11(c)(1), Federal Rules of Criminal Procedure required that the district

court advise the defendant of “the maximum possible penalty provided

by law, including the effect of any . . . supervised release term. . . .” (An

amendment in 2002 changed the relevant language eliminating the

reference to “effects.”) The district court here stated, “. . . you can be

sent to prison for a term of imprisonment of not less than ten years, . . .

[with] a term of supervised release of at least five years when you are

released from prison. . . .” App. at 29. Warren urges that the district

court was required to advise that he could be imprisoned if he violated

supervised release. For our purposes, we do not decide whether the

court’s statement satisfied Rule 11 at the time of the plea. It is arguable

that it did and, thus, that no “error” occurred. Because Warren failed to

raised an objection at trial, the plain error standard of review governs

3

district court and hold that he may not stay quiet and still

qualify for the Safety Valve.

I.

Warren’s troubles began at approximately 8:30 a.m. on

May 19, 2000 when members of the Drug Enforcement

Administration’s Airport Task Force were alerted by a

supervisor of the Pittsburgh Federal Express facility that

four suspicious “FedEx” packages had been intercepted.

Each package was addressed to “Mr. and Mrs. Timothy

Reed, 376 Mt. Pleasant Road, Pittsburgh, Pennsylvania

15214.”

A drug detection dog was called to the facility and alerted

to the presence of narcotics. The subsequent execution of a

search warrant revealed almost 10 kilograms of cocaine

hydrochloride secreted in a variety of baby supplies. Task

Force members then repackaged the cocaine in preparation

for a controlled delivery.

our analysis. See United States v. Vonn, 535 U.S. 55, 59 (2002). To

succeed under the plain error standard, Warren bears the burden of

showing that: “(1) an error was committed; (2) the error was plain, that

is, clear and obvious; and (3) the error affected the defendant’s

substantial rights[,] . . . [and] [i]n cases where the first three elements

are satisfied, an appellate court may exercise its discretion to order such

a correction only if the error, seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Dixon, 308

F.3d 229, 234 (3d Cir. 2002) (citations and quotations omitted).

We conclude that Warren’s substantial rights were not affected. An

error “affected substantial rights” if the error was prejudicial to the

defendant and had affected the outcome of the district court proceeding.

United States v. Olano, 507 U.S. 725, 732 (1993). Although in United

States v. Powell, 269 F.3d 175 (3d Cir. 2001), we noted that there may

be instances where prejudice could be found due to an error involving

supervised release, such instances are rare and Warren has failed to

convince us that, assuming error, that point was reached here. We are

hard pressed to imagine how Warren’s decision to plead turned on a

complete understanding of the potential for further imprisonment if he

violated supervised release. Nor has he convinced us that the colloquy

“seriously affect[ed] the fairness, integrity, or public reputation of judicial

proceedings.” Dixon, 308 F.3d at 234 (citation and quotation omitted).

4

Meanwhile, Warren was in wait at 376 Mt. Pleasant Road

— the residence of his girlfriend, Rayletta Reed. Reed was

unaware of the nature of the impending delivery, but

became suspicious after observing peculiar behavior by

Warren in the days preceding and including the day of his

arrest. Warren spoke to Reed on the day before delivery and

requested permission to have packages delivered to her

residence. He arrived at the residence some time before

8:30 a.m. on May 19. Throughout the day, Reed observed

Warren smoke marijuana and become increasingly nervous

as the packages failed to arrive. At least 17 phone calls

were placed to FedEx from Reed’s residence, inquiring as to

the delivery status of the packages. Reed estimated that, at

one point, Warren used her phone to call FedEx every 20

minutes.

At approximately 7:40 p.m., a Task Force member posing

as a FedEx employee delivered the packages to the Mt.

Pleasant residence. Isaiah Warren, waiting outside for the

delivery, identified himself and signed for the packages as

“Mr. Reed.”

Warren was observed placing the packages in the trunk

of his car, and, as he prepared to leave the residence, police

executed a stop of the vehicle. While being taken into

custody without incident, Warren stated, “I can’t believe

that I’m going to jail for ten kilos.” App. at 30; Presentence

Investigation Report ¶ 11.

On June 13, 2000, Warren was charged in an indictment

with conspiracy to distribute and possess with intent to

distribute in excess of five kilograms of cocaine in violation

of 21 U.S.C. § 846. Warren pleaded guilty to one count of

§ 846 on August 22, 2000.

At the ensuing plea colloquy, the district court explained

to Warren the rights that he would be forfeiting by pleading

guilty, inquired as to his competence and his satisfaction

with his legal representation, read the charge against him

and outlined the elements of the offense. The potential

penalties facing Warren were then explained as follows:

BY THE COURT:

Q . . . Now, if the government can prove each of those

elements beyond a reasonable doubt, by statute of

5

Congress, you can be sent to prison for a term of

imprisonment of not less than ten years, a fine not to

exceed $4,000,000.00, a term of supervised release of

at least five years when you are released from prison,

and you must pay a special assessment in the sum of

$100.00.

Now, do you understand those provisions?

A Yes, sir.

Q Why are you entering this plea of guilty?

A I’m guilty.

MR. NESCOTT (U.S. Attorney’s Office): Your Honor,

just one addition on the colloquy. The Court mentioned

that the penalty is potentially not less than ten years.

Of course, the guideline here actually is a hundred and

twenty-one months. It’s a technical matter, but

potentially the sentence could be up to life as a

maximum under this statute.

THE COURT: Very good, sir.

App. at 29. The government proceeded to summarize its

evidence against Warren, and the district court ultimately

accepted Warren’s plea. Warren lodged no objection.

Under the terms of the plea agreement, the government

agreed to take the following action: (1) recommend to the

court that the offense level of 32 not be increased under

U.S.S.G. § 3B1.1 (Aggravating Role); (2) recommend that the

court reduce the offense level by three levels for acceptance

of responsibility under U.S.S.G. § 3E1.1; (3) accept a

stipulation as to drug quantity; and (4) recommend to the

court that Warren be sentenced without regard to any

mandatory minimum sentence pursuant to the Safety

Valve, U.S.S.G. § 5C1.2, provided that Warren satisfy all its

qualifying conditions.

A Presentence Report (PSR) indicated that the base

offense level was 32 pursuant to U.S.S.G. § 2D1.1(c)(4) and

recommended a decrease of three points for Warren’s

acceptance of responsibility under § 3E1.1. The PSR

recommended against applying the Safety Valve

adjustment. It determined that, although Warren satisfied

6

the qualifying criteria in 18 U.S.C. § 3553(f)(1)-(4), he failed

to meet the requirements of subsection (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.

The PSR fixed Warren’s offense level at 29.

Warren’s Criminal History Points merited a Category I

classification, exposing him to a sentencing range of 87-108

months. However, because the minimum term of

imprisonment under 21 U.S.C. § 841(b)(1)(A)(ii)(II) was not

less than ten years to a maximum of life, and because

Warren did not qualify for the Safety Valve — which would

have allowed for a disregard of the statutory minimum —

the PSR recommended that his sentence be increased to

120 months pursuant to U.S.S.G. § 5G1.2(c)(2). It also

stated that a term of supervised release of no less than five

years was required under 21 U.S.C. §841(b)(1)(A)(ii)(II).

Warren objected to the PSR and requested application of

the Safety Valve provision notwithstanding his refusal to

come forward with “all information and evidence” as

required by 18 U.S.C. § 3553(f)(5), arguing that total

compliance with the letter of the statute would have placed

his family in danger and trenched upon his Fifth

Amendment rights. Had the Court accepted this argument,

it could have disregarded the mandatory minimum

sentence and applied an additional reduction in the base

offense level by two levels. This would have positioned

Warren at the base level of 27 contemplating a sentencing

range of 70-87 months, instead of 120 months. Warren did

not object to the five-year mandatory term of supervised

release.

The Government remained unsatisfied with the quality of

information Warren had provided pursuant to 18 U.S.C.

7

§ 3553(f)(5). Specifically, the government was interested in

the names of buyers and suppliers. App. at 65-66; Br. for

Appellant at 9. The district court agreed and rejected the

Safety Valve objection, stating “Let’s talk about the Fifth

Amendment privilege of self-incrimination. It’s gone. He has

pled guilty.” App. at 52. Warren was sentenced to the

mandatory minimum of ten years to be followed by five

years of supervised release. No direct appeal was taken.

On August 14, 2001, Warren filed a Motion to Vacate, Set

Aside, or Correct Sentence under 28 U.S.C. § 2255, arguing

that his trial counsel was ineffective for failing to file a

direct appeal as requested. The parties agreed that

Warren’s right to bring a direct appeal should be reinstated

nunc pro tunc. The district court entered the requested

order and dismissed the remainder of the Motion to Vacate

as premature without prejudice to renew. A timely notice of

appeal was filed on July 29, 2002.

The United States District Court for the Western District

of Pennsylvania had jurisdiction of the underlying action

pursuant to 18 U.S.C. § 3231 based upon Warren’s

narcotics offense against the laws of the United States. This

Court has appellate jurisdiction pursuant to 18 U.S.C.

§ 1291. Moreover, we have jurisdiction pursuant to 18

U.S.C. § 3742(a)(1), which provides jurisdiction over

sentences allegedly imposed in violation of law.

II.

We exercise plenary review over constitutional claims

involving a violation of the Fifth Amendment privilege

against self-incrimination. United States v. Gomez, 237 F.3d

238, 239 (3d Cir. 2000), cert. denied, 532 U.S. 984 (2001).

The same standard applies to review of the district court’s

interpretation and application of the Sentencing Guidelines.

United States v. Thornton, 306 F.3d 1355, 1358 (3d Cir.

2002).

A.

“No person . . . shall be compelled in any criminal case to

be a witness against himself. . . .” U.S. CONST. amend. V.

8

This staple of constitutional criminal jurisprudence

broadly encompasses two distinct privileges: it allows a

criminal defendant to refuse to testify at trial; and it allows

any person “not to answer official questions put to him in

any other proceeding, civil or criminal, formal or informal,

where the answers might incriminate him in future criminal

proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426

(1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).

In Mitchell v. United States, 526 U.S. 314 (1999), the

Court held that a guilty plea in the federal criminal system

does not totally waive the defendant’s self-incrimination

privilege at sentencing as it relates to both the underlying

relevant conduct and other unrelated criminal activity that

poses the threat of additional punishment. The Court

reasoned that “a defendant may have a legitimate fear of

adverse consequences from further testimony . . . [and] any

effort . . . to compel [that testimony] . . . at the sentencing

hearing clearly would contravene the Fifth Amendment.” Id.

at 326 (quotation omitted).

It appears that under some of the teachings of Mitchell,

the district court’s statement swept too broadly to the

extent it said that the Fifth Amendment was “gone” because

Warren “ple[aded] guilty . . . [and] waived his right not to

incriminate himself. . . .” App. at 52. However, that does

not control the outcome of this case. What was left unsaid

in Mitchell is as important as what was said. The Court

specifically stated that it expressed no opinion on “whether

silence bears upon the determination of . . . [a] downward

adjustment provided in § 3E1.1 [— and logically § 5C2.1

—] of the United States Sentencing Guidelines. . . .” Id. at

330.2

B.

The issue for decision here is one of first impression in

2. This specific statement in Mitchell dismantles Appellant’s attempt to

discredit the persuasive authority of United States v. Arrington, 73 F.3d

144 (7th Cir. 1996), United States v. Washman, 128 F.3d 1305 (9th Cir.

1997) and United States v. Cruz, 156 F.3d 366 (2d Cir. 1998) by

observing that these Safety Valve cases pre-date Mitchell’s holding.

9

this court: whether a defendant may rely on the Fifth

Amendment in refusing to disclose “all information and

evidence . . . concerning the offense or offenses that were

part of the same course of conduct or of a common scheme

or plan. . . .” as required in U.S.S.G. § 5C1.2(a)(5). Warren

acknowledges he has not fully disclosed, but nonetheless

argues that his Fifth Amendment right against self-

incrimination was violated by the district court’s insistence

that he come forth with the information requested by the

government — most notably the identity of his

coconspirators. He claims that full cooperation under the

Safety Valve would have exposed him and his family to

potential retribution and would have created the possibility

of additional criminal liability.3

The Supreme Court has decided a string of so-called

“penalty” cases that hold that the government may not

impose a penalty on a person for asserting his or her Fifth

Amendment privilege. See Minnesota v. Murphy, 465 U.S.

420, 434 (1984); Lefkowitz v. Cunningham, 431 U.S. 801,

3. Although Appellant’s argument contemplates two separate rationales

— fear of consequences and personal incrimination — we shall only

address the latter. As to the first contention, the Court of Appeals for the

Second Circuit has adequately addressed its merit in United States v.

Tang, 214 F.3d 365 (2d Cir. 2000):

The [Safety Valve] makes no exception for failure to furnish

information because of feared consequences, yet it seems unlikely

that Congress was unaware that those with knowledge of narcotics

traffic would in some instances have legitimate apprehension about

disclosing what they know. In other contexts, courts have refused to

recognize fear of the consequences of disclosure as a lawful ground

for withholding information that is required to be disclosed, see

Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961); United

States v. Winter, 70 F.3d 655, 665-66 (1st Cir. 1995) (testimony

required under grant of immunity), and no case has recognized such

fear as a permissible basis for withholding information that renders

a person eligible for a cooperation departure under U.S.S.G. § 5K1.1.

The Sentencing Commission evidently contemplates that risk of

injury to a defendant or his family will not excuse withholding

information, because such a risk is explicitly identified as a factor to

be considered in determining the extent of a cooperation departure.

See id. § 5K1.1(a)(4). We see no basis for creating a fear-of-

consequences exception to the safety valve provision.

10

804-808 (1977); Lefkowitz v. Turley, 414 U.S. 70, 77-84

(1973); Sanitation Men v. Comm. of Sanitation, 392 U.S.

280, 284-285 (1968); Gardner v. Broderick, 392 U.S. 273,

276-279 (1968) (all stating that sanctions such as loss of

job, of state contracts, of future contracting privileges with

the state, of political office, of the right to run for office and

the revocation of probation are all impermissible

“punishment” on the exercise of the privilege). To determine

the Fifth Amendment implications of the Safety Valve

statute and guideline we first decide whether the

circumstances here come within the rubric of the

jurisprudential concept of a “penalty.”

III.

Mitchell made clear that a court’s decision to increase a

sentence based upon the defendant’s exercise of his or her

Fifth Amendment privileges is an unconstitutional

“penalty.” 526 U.S. at 329. Although the treatment of a

Safety Valve decrease is an open question in our court,

several of our sister Courts of Appeals have held that

denying a sentencing reduction under U.S.S.G. § 5C1.2

constitutes a “denied benefit” rather than a penalty and

thus avoids Fifth Amendment implications. See e.g. United

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

(“Requiring defendants to admit past criminal conduct in

order to gain relief from statutory minimum sentence does

not implicate the right against self-incrimination.”); United

States v. Washman, 128 F.3d 1305, 1307 (9th Cir. 1997)

(“Section 3552(f) does not raise constitutional concern

because it does not mete out additional punishment if a

defendant decides not to disclose under § 3553(f)(5).”)

(emphasis in original); United States v. Cruz, 156 F.3d 366,

374 (2d Cir. 1998) (“[W]e hold that the choice confronting

the defendant [with respect to § 5C1.2] gives rise to no more

compulsion than that present in a typical plea bargain. We

do not believe that this choice, unlike the choice in the

penalty cases, is likely to exert such pressure upon an

individual as to disable him from making a free and

rational choice.”).

We are persuaded that the reasoning in support of these

decisions is also consistent with the intent of Congress in

11

enacting the Safety Valve provision. For example, in

Washman the court recognized that the purpose of the

provision was “to remedy an inequity in the Guidelines

whereby more senior operatives could obtain lighter

sentences than less culpable lower-level operatives because

the former had more information to offer than the latter

and so could benefit from the Substantial Assistance

downward departure under U.S.S.G. § 5K1.1.” 128 F.3d at

1307. The Safety Valve remedies this inequity by “allowing

the sentencing court to disregard the statutory minimum in

sentencing first-time nonviolent drug offenders who played

a minor role in the offense and who have made a good-faith

effort to cooperate with the government.” Id. (quotation and

citation removed). Then, too, in Cruz the court explained

that, like plea bargaining, the “purpose of conditioning the

safety valve benefit on truthful disclosure of relevant

conduct was not to force defendants to waive their Fifth

Amendment privilege, but to further another legitimate

governmental goal.” 156 F.3d at 375. And again in

Washman, “The intent of Congress would be thwarted if

defendants could obtain the benefit of the safety valve yet

not disclose their true roles.” 128 F.3d at 1307.

IV.

In United States v. Frierson, 945 F.2d 650 (3d Cir. 1991),

we tackled the self-incrimination problem involved in the

“Acceptance of Responsibility” Sentencing Provision,

U.S.S.G. § 3E1.1. Jerome Frierson pleaded guilty to one

count of bank robbery by intimidation in violation of 18

U.S.C. § 2113(a). In exchange for his plea, the government

dropped two separate charges of bank robbery with a

dangerous weapon and interstate transportation of a stolen

car. Frierson sought a two-point reduction under U.S.S.G.

§ 3E1.1. The district court denied the reduction, finding

that Frierson withheld information while “selectively”

accepting responsibility.

In his appeal, Frierson argued, as does Warren here, that

he was unconstitutionally punished for his silence in

violation of the Fifth Amendment. We affirmed, holding that

the “reduction was denied on the basis of voluntary

statements by Frierson in which he denied possessing a

12

gun[,]” not because “of any statements compelled pursuant

to a threat against exercise of the [Fifth Amendment]

privilege.” Frierson, 945 F.2d at 664.

Notwithstanding the specific reasoning behind the

affirmance in Frierson, Warren claims support in some of

the language in the opinion. He places much emphasis on

the opinion’s concluding passage:

We summarize our holdings:

* * *

3. For Fifth Amendment purposes, a denied reduction

in sentence is equivalent to an increase in sentence;

both are “penalties.”

Id.

Two very important reasons militate against accepting

Appellant’s Frierson argument.

A.

Simply labeling a statement in an opinion as a “holding”

does not necessarily make it so. Gratuitous statements in

an opinion that do not implicate the adjudicative facts of

the case’s specific holding do not have the bite of precedent.

They bind neither coordinate nor inferior courts in the

judicial hierarchy. They are classic obiter dicta:

“statement[s] of law in the opinion which could not logically

be a major premise of the selected facts of the decision.”4

In examining the ratio decidendi in Frierson, we see the

categorical deductive syllogism, albeit cloaked in

enthymemes:

Compelled statements are a threat against the Fifth

Amendment.

Frierson’s statements were not compelled, but were

voluntary.

4. RUPERT CROSS, PRECEDENT IN ENGLISH LAW 80 (2d ed. 1968) (citing EDWIN

W. PATTERSON, JURISPRUDENCE: MEN AND IDEAS OF THE LAW 313 (1953)).

13

Therefore, they were not a threat against the Fifth

Amendment.

Thus, the Frierson rationale did not rely on the gratuitous

statement in the opinion, “a denied reduction in sentence is

equivalent to an increase in sentence; both are ‘penalties.’ ”

This so-called “holding” was classic obiter dicta.5

B.

The second, and more important reason against

accepting Warren’s Frierson argument, is that its “holding”

statement has been totally eviscerated by our later

consideration of the teachings of Corbitt v. New Jersey, 439

U.S. 212 (1978), which deemed constitutional a state

murder statute providing the potential for a shorter

sentence to defendants who pleaded non vult, or no contest.

In so holding, the Court noted that “not every burden on

the exercise of a constitutional right, and not every

pressure or encouragement to waive such a right, is invalid.

Specifically, there is no per se rule against encouraging

guilty pleas.” Id. at 218-219. Even though Frierson was

decided after Corbitt — and presumably the panel

considered its relevance — we later stated in United States

v. Cohen, 171 F.3d 796, 805 (3d Cir. 1999), that, “[t]o the

extent that Corbitt is in tension with [the so-called

“holding”] . . . in Frierson, we must follow the Supreme

Court. Sentencing Guideline 3E1.1 creates an . . . incentive

for defendants to plead guilty, and under Corbitt, this

incentive is constitutional.”6

5. It is not everything said by a judge when giving judgment that

constitutes a precedent. In the first place, this status is reserved for

his pronouncements on the law, and, . . . no disputed point of law

is involved in the vast majority of cases that are tried in any year.

. . .

The second reason . . . is that, among the propositions of law

enunciated by him, only those which he appears to consider

necessary for his decision are said to form part of the ratio decidendi

and thus to amount to more than an obiter dictum. . . .

CROSS, supra note 4 at 35-40.

6. Appellant attempts to discredit this statement in Cohen by explaining

that Corbitt only involves a Sixth Amendment claim, not a Fifth

14

For the foregoing reasons Appellant’s reliance on Frierson

is misplaced.

V.

We therefore join our sister Courts of Appeals that

characterize the Safety Valve a denied benefit rather than a

penalty, although we focus more on the lack of true

compulsion, rather than the benefit versus penalty

dichotomy upon which other cases have dwelled. “The

choice presented to a defendant under § 5C1.2 between a

sentence reduction with relief from the mandatory

minimum sentence and waiver of his [right to silence] is

analogous to the choice confronting defendants in plea

bargain cases.” Cruz, 156 F.3d at 374. Contrary to

Appellant’s concern that he is “compelled to provide

incriminating information to earn a reduction in his or her

sentence, . . . the choice confronting the defendant gives

rise to no more compulsion than that present in a typical

plea bargain.” Id. We believe that “this choice, unlike the

choice in the [Supreme Court’s] penalty cases, is not ‘likely

to exert such pressure upon an individual as to disable him

from making a free and rational choice.’ ” Id. (quoting

Miranda v. Arizona, 384 U.S. 436, 464-465 (1966)).

Accordingly, the Safety Valve provision furthers a

legitimate government goal and does not impose an

unconstitutional condition on defendants seeking its

advantages.

* * * *

Warren voluntarily and intelligently accepted a plea

bargain. In order to qualify for the sentencing benefits of

Amendment claim as both Frierson and the present case do. Presumably,

Appellant borrows the language from the Cohen opinion stating that the

murder statute in Corbitt “did not violate the defendant’s Sixth

Amendment right to trial.” Cohen, 171 F.3d at 805. However, Appellant

should have looked to the Corbitt opinion itself, which clearly states that

the Fifth, Sixth and Fourteenth Amendments were considered on appeal:

“Corbitt submi[ts] that the . . . [plea system] . . . is an unconstitutional

burden on his federal rights under the Fifth, Sixth, and Fourteenth

Amendments.” Corbitt, 439 U.S. at 218.

15

the Safety Valve, U.S.S.G. § 5C1.2, he was required to

disclose the names of the individuals involved in the same

course of his criminal conduct. He failed to do so. The

Safety Valve is not a right; it is a privilege. The Fifth

Amendment is not implicated by a defendant’s choice

between seeking its benefits or embracing silence.

We will AFFIRM the judgment of the district court in all

respects.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit