U.S. v. Adu

• Decision Date: 15 April 1996
• Docket Number: No. 95-1488,95-1488
• Citation: 82 F.3d 119
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shakiru ADU, a/k/a Alhaji Shakiru, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 119

82 F.3d 119

UNITED STATES of America, Plaintiff-Appellee, v. Shakiru ADU, a/k/a Alhaji Shakiru, Defendant-Appellant.

No. 95-1488.

United States Court of Appeals, Sixth Circuit.

Argued March 18, 1996.

Decided April 15, 1996.

On Appeal from the United States District Court for the Eastern District of Michigan, Horace W. Gilmore, Senior District Judge, No. 94-80437.

David Debold (argued and briefed), J. Michael Buckley, Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

Shakiru Adu, Milan, MI, pro se, Paul D. Muller (argued and briefed), Farmington, MI, for Defendant-Appellant.

Before: LIVELY, MARTIN, and MOORE, Circuit Judges.

LIVELY, Circuit Judge.

Early in this decade, Congress became concerned that the inflexibility of statutory mandatory minimum sentences was resulting in unjust punishments in some cases. Congress was particularly concerned with the inability of federal trial courts to consider mitigating factors to impose proportionally lower sentences on the least culpable participants in multi-defendant drug trafficking cases. See H.R.Rep. No. 103-460, 103d Cong., 2d Sess., reprinted in 1994 WL 107571 (Leg.Hist.), at 4-5 (1994). After studying the matter, Congress included a "safety valve" provision in the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, § 80001. Section 80001 added subsection (f), titled "Limitation on Applicability of Statutory Minimum in Certain Cases" to 18 U.S.C. § 3553, the statute dealing with imposition of sentences in criminal cases.

To be eligible for a safety valve reduction below an otherwise applicable mandatory minimum sentence, a defendant must satisfy five criteria listed in § 3553(f). The five criteria were copied verbatim in the United States Sentencing Guidelines (U.S.S.G.), and appear as U.S.S.G. § 5C1.2. This appeal raises the single issue of whether the district court erred in denying the request of the defendant, Shakiru Adu, to be sentenced below the mandatory minimum applicable to the offense to which he pled guilty. He based his request on the ground that he satisfied all five criteria listed in § 3553(f) and § 5C1.2.

For the reasons that follow, we affirm the sentence imposed and the judgment of the district court denying a reduction of sentence below the mandatory minimum.

I.

The defendant pled guilty to conspiring to knowingly import heroin into the United States from abroad in violation of 21 U.S.C. §§ 952, 960, and 963 (1988). As part of the plea agreement the government dismissed a second charge against the defendant of conspiracy with intent to distribute heroin. The sentencing guidelines prescribed a sentencing range of 97 to 121 months for the offense to which the defendant pled guilty. However, because of the amount of heroin involved, one kilogram or more, a mandatory minimum sentence of 10 years applied. 21 U.S.C. § 960(b)(1)(A) (1988). The plea agreement provided that the defendant's sentence would not exceed 120 months.

At the hearing on his guilty plea, the defendant admitted conspiring with several other persons to import multiple grams of heroin illegally into the United States from Thailand. The presentence investigation report prepared by a probation officer held the defendant accountable for between one and three kilograms of heroin. The defendant did not contest this assessment. The presentence report found that the defendant qualified for a two-level reduction from the base offense level provided by the guidelines for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) "because he admitted his involvement in the instant offense, and provided a factual basis to the Court of his participation at the time of his guilty plea." The report stated, however, that the defendant did not qualify for an additional one-level reduction under U.S.S.G. § 3E1.1(b) because "he did not provide the government with a timely notification of his involvement in the offense." The report also stated that "[t]he defendant may meet the provisions of § 5C1.2," and noted that if the court determined he satisfied those provisions, it could impose sentence in accordance with the guidelines range of 97 to 121 months without regard to the mandatory minimum.

II.

A.

Prior to sentencing, the defendant filed a written motion for a reduced sentence under 18 U.S.C. § 3553(f), which provides:

(f) LIMITATION ON APPLICABILITY OF STATUTORY MINIMUMS IN CERTAIN CASES.--Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 961, 963), the court shall impose a sentence

pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that--

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848; and

(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.

As stated previously, U.S.S.G. § 5C1.2 tracks 18 U.S.C. § 3553(f) and contains a verbatim duplication of the five criteria.

In support of his motion for a safety valve reduction, the defendant relied on the content of the presentence investigation report and an undated handwritten letter he had written to a probation officer. In the letter, Adu blamed his illegal activities on a drug and alcohol problem.

B.

At the sentencing hearing the government did not dispute that the defendant satisfied criteria 1, 2 and 3 of § 3553(f), but argued that Adu did not qualify for a reduction because he did not satisfy criteria 4 and 5. The government counsel stated that the defendant had not been completely forthright and had attempted to minimize his own involvement in the conspiracy. Recognizing that it had not insisted at the hearing on the guilty plea that the defendant was an organizer or manager of the conspiracy, and had not objected to the presentence report on that ground, the government eventually dropped its argument that the defendant did not qualify under the fourth criterion. It continued to contend, however, that the defendant was not eligible for safety valve treatment because he had not truthfully provided all information and evidence as required by the fifth criterion.

After hearing counsels' arguments and permitting the defendant to speak, the district court denied the motion, stating that he could see no reason in the probation department report or anything he had heard in the case that would warrant application of the safety valve provision. The court concluded by stating: "In addition the prosecution has indicated opposition to it and I think it is very significant." The court then imposed the mandatory minimum sentence of 120 months' imprisonment, to be followed by five years of supervised release.

III.

A.

On appeal, the defendant relies on the statement in the presentence report that he "may meet the provisions of § 5C1.2," and the recommendation that he be given a two-level reduction in the base offense level for acceptance of responsibility. He points out that the government did not object to either of these statements, and contends it should not have been permitted to argue at sentencing that the defendant had not been completely forthright. Instead of permitting the government to make this unsupported statement, he argues, the district court should have required the government to prove that the defendant failed to satisfy the requirements of the fifth criterion.

In addition, the defendant contends that the district court was confused, believing that Adu sought a downward departure pursuant to U.S.S.G. § 5K1.1 rather than a limitation on application of a mandatory minimum sentence under § 5C1.2. Finally, the defendant maintains that the district court's statement of reasons for denying his motion was inadequate and argues that the court should have made more detailed findings on the disputed issue.

In a pro se brief Adu raises for the first time on appeal an ineffective assistance of counsel claim; however, he admits that appointed counsel's brief is persuasive and that the cited case law is compelling. His claim hinges on counsel's failure to advance an argument based on the alleged failure to submit the criminal indictment to the grand jury and the failure to have the indictment signed by the proper authority. He is simply wrong. The criminal indictment was submitted to the grand jury, and it was signed by an Assistant United States Attorney. Adu correctly states that an indictment "shall be signed by the attorney for the government"; however, "attorney for the government" is defined in a manner that includes "an authorized assistant of a United States Attorney." FED.R.CRIM.PRO. 7(c)(1) & 54(c). Even if the signature was defective, any violation...