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.