125 F.3d 873 (D.C. Cir. 1997), 96-3140, United States v. Plunkett

Docket Nº:96-3140.
Citation:125 F.3d 873
Party Name:UNITED STATES of America, Appellee, v. Hugh O. PLUNKETT, a/k/a Dennis Ivan Hunter, Appellant.
Case Date:October 03, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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125 F.3d 873 (D.C. Cir. 1997)

UNITED STATES of America, Appellee,


Hugh O. PLUNKETT, a/k/a Dennis Ivan Hunter, Appellant.

No. 96-3140.

United States Court of Appeals, District of Columbia Circuit

October 3, 1997

Argued Sept. 9, 1997.

Appeal from the United States District Court for the District of Columbia (No. 96cr00207-01).

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[326 U.S.App.D.C. 347] Beverly G. Dyer, Assistant Federal Public Defender, Washington, DC, argued the cause for appellant, with whom A.J. Kramer, Federal Public Defender, was on the briefs. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

Carmen R. Kelley, Assistant U.S. Attorney, Washington, DC, 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.


The Sentencing Guideline commonly known as the "safety valve" limits the applicability of statutory minimum sentences in certain cases. U.S. SENTENCING GUIDELINES MANUAL § 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. § 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. § 5C1.2(2). Application 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. § 2D1.1(b)(4). We affirm.


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. § 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 imprisonment. Starting from a base offense level of 36, see U.S.S.G. § 2D1.1(c)(2), the court imposed a two-level increase for possession of a firearm under U.S.S.G. § 2D1.1(b)(1) and a three-level reduction for acceptance of responsibility under U.S.S.G. § 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 possession was part of the offense as "relevant conduct"; thus, the court could not apply the two-level reduction under U.S.S.G. § 2D1.1(b)(4). Because Plunkett had no prior criminal record, the sentencing range was between 168 and 210 months, and the court chose a sentence at the midpoint of that range.


On appeal, Plunkett contends that the provision in the safety valve barring eligibility as a result of firearm possession "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. § 1B1.3. Because these arguments were not presented to the district court, our review is for plain error, 1 see United States

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[326 U.S.App.D.C. 348] v. Robinson, 86 F.3d 1197, 1199 (D.C.Cir.1996), and we find none.

First, we are unpersuaded that Application Note 3's interpretation of the safety valve is invalid because it purportedly negates any difference between the word "offense," used in three subsections of the safety valve, U.S.S.G. § 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. § 5C1.2(5). Even if Application 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 interpretation 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...

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