United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 2, 1998 Decided October 6, 1998
No. 98-3002
United States of America,
Appellant
v.
Dennis Robinson,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00071-01)
William F. Gould, Assistant United States Attorney, ar-
gued the cause for appellant, with whom Wilma A. Lewis,
United States Attorney, John R. Fisher and Mary-Patrice
Brown, Assistant United States Attorneys, were on the
briefs. Thomas J. Tourish, Jr., Assistant United States
Attorney, entered an appearance.
Gerald I. Fisher, appointed by the Court, argued the cause
and filed the brief for appellee.
Before: Wald, Williams and Tatel, Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: Dennis Robinson pleaded guilty to distribut-
ing 60 grams of crack cocaine, an offense which carries a
mandatory minimum sentence of 120 months. The district
court found that Robinson was eligible for reduced sentencing
under the "safety valve" provision of 18 U.S.C. s 3553(f) and
U.S.S.G. s 5C1.2, which allows a certain class of defendants
to be sentenced below the mandatory minimum otherwise
applicable. Finding Robinson eligible for this provision, the
district court sentenced him to a term of 70 months imprison-
ment. The government appeals this sentence, arguing that a
defendant may not be sentenced under the "safety valve"
provision when that defendant has more than 1 criminal
history point as calculated under U.S.S.G. s 4A1.1, and that,
because Robinson had 3 criminal history points as so calculat-
ed, the court was without authority to sentence him under the
"safety valve." We agree with the government and, accord-
ingly, remand for resentencing in accordance with the manda-
tory minimum of 120 months.
I. Background
Robinson was indicted in two counts for the unlawful
distribution of cocaine base (count one) within 1,000 feet of a
school (count two) for having distributed 60 grams of crack
cocaine to an undercover police officer on April 10, 1996. On
June 6, 1997, Robinson pleaded guilty to count one, the
distribution of 50 grams or more of cocaine base in violation
of 21 U.S.C. ss 841(a)(1) and (b)(1)(A)(iii), an offense carrying
a mandatory minimum sentence of 120 months.1
On July 17, 1997, the United States Probation Office ("Pro-
bation Office") issued a Presentence Investigation Report
__________
1 Count two was dismissed pursuant to a plea agreement with the
government.
("PSR"), which calculated Robinson's federal sentencing
guidelines total offense level as 29,2 and which accorded him
two criminal history points, placing him in criminal history
category II.3 The PSR's determination of criminal history
points was based upon Robinson's September 1994 Superior
Court conviction for contempt of court for violating a condi-
tion of pretrial release and his January 1995 Superior Court
conviction for possession of heroin. Pursuant to U.S.S.G.
s 4A1.1(c), the PSR assigned Robinson one criminal history
point for each of these offenses. Based on these calculations,
the PSR concluded that the appropriate sentencing range for
appellee was 97-121 months; however, because the offense
carried a mandatory minimum, the sentencing range was
effectively limited to 120-121 months.
Robinson appeared for sentencing on August 7, 1997; at
that time, the district court noted that the PSR had incorrect-
ly counted Robinson's 1994 conviction for contempt in calcu-
lating the criminal history score and thus that Robinson had
only one criminal history point.4 On the basis of its under-
standing that appellee had only one criminal history point, the
court suggested to the parties that appellee's sentence might
be covered by the "safety valve" provision of 18 U.S.C.
s 3553(f) and U.S.S.G. s 5C1.2.5 Accordingly, the district
__________
2 This calculation was based upon a base offense level of 32, see
U.S.S.G. s 2D1.1(a)(4), minus a three level downward adjustment
for timely acceptance of responsibility under U.S.S.G. s 3E1.1(a).
3 The number of criminal history points assigned to a defendant
determines her criminal history category. See U.S.S.G. Ch. 5,
Pt. A. For example, 0 or 1 points places a defendant in category I;
2 or 3 in category II; 4, 5, or 6 in category III, and so forth.
4 The conviction should not have been counted because it was a
misdemeanor which resulted in imprisonment for fewer than 30
days. See U.S.S.G. s 4A1.2(c)(1).
5 The "safety valve" provision provides that a court may sentence
a defendant below the statutory mandatory minimum if the court
finds that the statute's five criteria are met. One of these criteria is
that "the defendant does not have more than 1 criminal history
court postponed the sentencing so that the parties could
explore this "safety valve" option and so that appellee could
be debriefed by the government.6
Subsequent to the August 7, 1997 sentencing hearing, the
Probation Office determined that the PSR was incorrect with
respect to the length of probation appellee had received for
his 1995 conviction for heroin possession: while the PSR
indicated that appellee's probation had terminated in Febru-
ary 1996, the Probation Office determined that appellee's
probation had not in fact terminated until January 1997,
meaning that appellee was on probation when he committed
the instant offense of April 10, 1996. This determination
required the addition of two criminal history points to appel-
lee's criminal history score pursuant to U.S.S.G. s 4A1.1(d),
which changed appellee's criminal history score from one to
three and his criminal history category from I to II.7 After
learning of this change in appellee's PSR, the district court
requested that the parties brief the issue of whether there
was any way that appellee might still be eligible to be
sentenced under the "safety valve" provision, notwithstanding
the fact that he had three criminal history points.
On December 5, 1997, the district court issued an opinion
sentencing appellee below the mandatory minimum. In con-
sidering appellee's sentence, the court determined that appel-
lee's criminal history category significantly over-represented
__________
point, as determined under the sentencing guidelines." 18 U.S.C.
s 3553(f)(1) and U.S.S.G. s 5C1.2(1).
6 This debriefing was necessary in order for appellee to meet
criterion 5 of the "safety valve" provision, which requires a defen-
dant truthfully to provide the government with any information he
has surrounding the offense. See 18 U.S.C. s 3553(f)(5). Appellee
was in fact debriefed on September 10, 1997 by a Federal Bureau of
Investigation agent and provided information to the satisfaction of
this agent.
7 U.S.S.G. s 4A1.1(d) requires the addition of 2 criminal history
points if a defendant commits an offense while under any criminal
justice sentence, including probation.
the seriousness of his criminal history.8 Pursuant to its
discretion under U.S.S.G. s 4A1.3, the court therefore adjust-
ed appellee's criminal history downward from category II to
category I. The district court then found that the change in
the criminal history category allowed for a concomitant reduc-
tion in appellee's criminal history points, that is, from 3 to
0-1. Under this analysis, the court found that appellee had
no "more than 1 criminal history point" as required under 18
U.S.C. s 3553(f)(1) and U.S.S.G. s 5C1.2(1), and was there-
fore eligible to be sentenced below the mandatory minimum
of 120 months.
II. Discussion
The standard of review of the district court's decision is de
novo. United States v. Gaviria, 116 F.3d 1498, 1518 (D.C.
Cir. 1997) ("Legal questions relating to sentencing are re-
viewed de novo.").
The so-called "safety valve" provision of 18 U.S.C. s 3553(f)
and U.S.S.G. s 5C1.2 allows a sentencing court not to impose
certain mandatory minimums if all of that section's five listed
criteria are met. Criterion one requires that "the defendant
does not have more than 1 criminal history point, as deter-
mined under the sentencing guidelines." 18 U.S.C.
s 3553(f)(1); U.S.S.G. s 5C1.2(1). In finding appellee eligible
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8 The district court noted that, outside of his contempt conviction,
appellee's sole prior conviction was a misdemeanor simple posses-
sion of heroin conviction at the age of nineteen. See United States
v. Robinson, 991 F. Supp. 1 (D.D.C. 1997). The court noted as well
that both the PSR and several letters submitted to the court
indicated that the arrest for possession of heroin took place shortly
after the death of appellee's father from AIDS, and that prior to his
father's death, appellee had been "respectful, family-oriented and
law-abiding." Id. at 3. Finally, the court noted that in the time
period after the commission of the offense but prior to his arrest
(the government waited nearly a year to arrest him), appellee had
demonstrated responsibility by helping to care for his younger
sister and his girlfriend's daughter and that he had made efforts to
correct his anti-social behavior. See id.
for the "safety valve" notwithstanding his three criminal
history points, the district court reasoned that because crimi-
nal history points are used to determine the criminal history
category, if a court departs downward in the criminal history
category under U.S.S.G. s 4A1.3, the court is also authorized
to subtract criminal history points under U.S.S.G. s 4A1.1 in
order to bring the category and the points back into align-
ment: "Accordingly, the Court concludes that the Section
4A1.3 downward departure leads to a corresponding adjust-
ment in the number of criminal history points and that the
adjusted number of criminal history points is the relevant
number of points for determining the defendant's safety valve
eligibility." United States v. Robinson, 991 F. Supp. 1, 4
(D.D.C. 1997).
However, Application Note 1 to U.S.S.G. s 5C1.2 makes
clear that, " '[m]ore than 1 criminal history point, as deter-
mined under the sentencing guidelines,' as used in subdivision
(1), means more than one criminal history point as deter-
mined under s 4A1.1...." There is simply nothing in the
statute or applicable guideline to suggest that U.S.S.G.
s 4A1.3 has any play in the determination of whether a
defendant is eligible to be sentenced under the "safety valve."
And while U.S.S.G. s 4A1.3 affords a sentencing court discre-
tion to determine whether a criminal history category accu-
rately reflects a defendant's criminal history, nothing in
U.S.S.G. s 4A1.1 suggests that the sentencing court has any
discretion with respect to the calculation of a defendant's
criminal history score: Section 4A1.1 is a mechanistic provi-
sion which merely instructs the sentencing court to add points
for various carefully-defined criminal history occurrences.
Thus the plain language of the statute and relevant guide-
line clearly provide that a court may not sentence a defendant
under the "safety valve" provision when that defendant has
more than 1 criminal history point as calculated under
U.S.S.G. s 4A1.1--regardless of whatever downward depar-
ture a court might grant under U.S.S.G. s 4A1.3. The courts
of appeals which have considered this issue are uniform on
this point: a defendant who has more than 1 criminal history
point cannot be sentenced under the "safety valve" provision.
See United States v. Orozco, 121 F.3d 628 (11th Cir. 1997);
United States v. Resto, 74 F.3d 22 (2d Cir. 1996); United
States v. Valencia-Andrade, 72 F.3d 770 (9th Cir. 1995).
We sympathize with the district court's desire under the
facts of this case to sentence appellee below the mandatory
minimum; we must, nevertheless, remand the case with
instructions to resentence appellee in accordance with the
mandatory minimum of 120 months.
So ordered.