Tuesday, June 20, 2006

Burden of Truthful Disclosure, Required for Safety-Valve Relief, Remains on Defendant after Booker

United States v. Jimenez, Docket No. 05-2221-cr (2d Cir. June 5, 2006) (Walker, Newman, Sotomayor) (per curiam):

(By James Stull, rising 2-L at Stanford Law School and intern at FDNY)

The safety valve remains difficult to open for defendants convicted of drug offenses under 21 U.S.C. §§ 841, 844, 846, 960, and 963. In an opinion by Chief Judge Walker, the Circuit affirms a district court’s ruling that Booker does not shift the burden of truthful disclosure, required for safety-valve relief, to the prosecution to prove beyond a reasonable doubt. While Jimenez fulfilled four of the five factors required by § 3553(f) for safety-valve relief, at issue is the fifth factor, namely whether Jimenez revealed to the Government all relevant facts of the “offense or offenses that were part of the same course of conduct or of a common scheme or plan,” and, if not, whether it was his or the Government’s burden to prove it so.

Nelson Jimenez admitted distributing 400 grams of heroin during his guilty plea allocution, a fact that triggered a five-year minimum sentence under § 841(b)(1)(B). To escape that mandatory minimum, Jimenez met with prosecutors and told them that “his involvement was limited solely to the conduct that gave rise to his arrest.” The Government was unconvinced, however, due in large part to inconsistencies in Jimenez’s labyrinthian tale of a reckless dealer named “Primo,” his more circumspect minion, “fake Primo,” and an innocuous friend from New York City, whose charity toward Jimenez indicated either a fondness for lengthy periods of uninterrupted time spent in Jimenez’s company or a capricious desire for road-trips through the American South.

The district court conducted a Fatico hearing to resolve this dispute. After the hearing, the court concluded that Jimenez had not “carr[ied] [his] burden of establishing that he has satisfied the requirement” for safety-valve eligibility. The court remarked, however, that it may have ruled differently had the Government borne the burden of proof rather than Jimenez. The court thus sentenced Jimenez to the five-year mandatory minimum sentence.

Jimenez raised two claims on appeal: First, that Booker changes the nature of the safety-valve from what was once “merely a sentencing adjustment” within the Guidelines to what is now a gateway for imposing a non-Guidelines sentence. Because the safety-valve now implicates a non-Guidelines sentence, he argued that the burden of proving ineligibility under the truthful-disclosure component of the safety valve should shift to the Government. Second, that notwithstanding his own admission to “all facts necessary to trigger the imposition of the mandatory minimum sentence . . . the Sixth Amendment requires the government to prove beyond a reasonable doubt those facts which would render him ineligible for safety-valve relief.”
In response to Jimenez’s first claim, the Circuit reaffirmed its reasoning in United States v. Gambino, 106 F.3d 1105 (2d Cir. 1997), a pre-Blakely case holding that the defendant carries the burden of proof on the truthful disclosure prong of the safety valve. Here, as in Gambino, the Court sees the proof required for safety-valve eligibility as a part of, and not independent from, the burden shifting process of sentencing, generally: “a defendant who seeks to take advantage of a sentencing adjustment [whether a downward adjustment or a downward departure] carries the burden of proof” regarding that adjustment. Op.12. It would thus be unreasonable to “impose on the government five additional elements that it must prove before triggering the imposition of a mandatory-minimum sentence.”

The court disposes Jimenez’s second claim by referring to Holguin, a recent decision holding that judicial determination of a defendant’s eligibility for safety-valve relief does not violate the Fifth and Sixth Amendments. United States v. Holguin, 436 F.3d 111 (2d Cir. 2006), cert. denied, 547 U.S. ---, 2006 WL 1221968 (June 5, 2006) (click here for our discussion of Holguin). As it did in Holguin, the Court here distinguishes opportunities for sentence reduction from impositions of sentence enhancement. “Because the safety-valve provisions serve as a mechanism for reducing sentences, rather than increasing them, we held that Apprendi, Blakely, and Booker do not apply to the operation of the safety valve.” (Emphases in original).

The same is true here. Jimenez’s admission during his plea proceeding to distributing 400 grams of heroin triggered the five-year minimum sentence. No more is required. The five conditions for safety-valve eligibility are criteria “for a sentence reduction,” not elements of the offense that increase the maximum sentence. The Apprendi line of cases is thus inapplicable to the operation of the safety valve.

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