U.S. v. Ajugwo, 95-50178

• Decision Date: 07 May 1996
• Docket Number: No. 95-50178,95-50178
• Citation: 82 F.3d 925
• Parties: 96 Cal. Daily Op. Serv. 3218, 96 Daily Journal D.A.R. 5290 UNITED STATES of America, Plaintiff-Appellee, v. Yvonne N. AJUGWO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 925

82 F.3d 925

96 Cal. Daily Op. Serv. 3218, 96 Daily Journal

D.A.R. 5290

UNITED STATES of America, Plaintiff-Appellee, v. Yvonne N. AJUGWO, Defendant-Appellant.

No. 95-50178.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 7, 1996.

Decided May 7, 1996.

Thomas R. Freeman and Sharon E. Jones, Bird, Marella, Boxer, Wolpert & Matz, Los Angeles, California, for defendant-appellant.

Rob B. Villeza, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; David V. Kenyon, District Judge, Presiding. No. CR-00112-KN.

Before WALLACE and T.G. NELSON, Circuit Judges, and BROWNING, ^* District Judge.

T.G. NELSON, Circuit Judge:

OVERVIEW

Yvonne Ajugwo appeals her sentence imposed following her guilty plea to conspiracy to import heroin in violation of 21 U.S.C. § 963 on the grounds that the Government breached the plea agreement when it contested the applicability of U.S.S.G. § 5C1.2(5), the safety valve provision. We have jurisdiction under 18 U.S.C. § 3742(a), and we affirm.

SAFETY VALVE PROVISION

Before we go into the facts and history of this case, we will discuss the Mandatory Minimum Sentencing Reform Act ("MMSRA"), 18 U.S.C. § 3553(f), also known as the "safety valve" provision. Section 3553(f) appears in the sentencing guidelines at § 5C1.2.

Until Congress passed the MMSRA, defendants convicted of certain drug crimes could receive a sentence below the statutory minimum only on the Government's motion to depart downward based on a defendant's substantial assistance to the authorities. See 18 U.S.C. § 3553(e). Congress enacted § 3553(f) to rectify an inequity in this system, whereby more culpable defendants who could provide the Government with new or useful information about drug sources fared better under § 3553(e) than lower-level offenders, such as mules, who typically have less knowledge. See United States v. Arrington, 73 F.3d 144, 146 (7th Cir.1996); United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir.1995). As the legislative history to the MMSRA states: "Ironically, [ ] for the very offenders who most warrant proportionally lower sentences-offenders that by guideline definitions are the least culpable-mandatory minimums generally operate to block the sentence from reflecting mitigating factors." H.R.Rep. No. 103-460, 103d Cong., 2d Sess., 1994 WL 107571 (1994).

Section 3553(f) allows the sentencing court to disregard the statutory minimum in sentencing first-time nonviolent drug offenders who played a minor role in the offense and who "have made a good-faith effort to cooperate with the government." Arrington, 73 F.3d at 147. Specifically, § 3553(f) provides that a court must impose a sentence pursuant to the guidelines without regard to the statutory mandatory minimum if the court finds that the defendant meets the following five criteria:

(1) 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.

FACTS AND PROCEDURAL HISTORY

In October 1993, Ajugwo asked co-defendants, Jessie Omine and Tracey Michelle Turner, to transport an unspecified amount of heroin from Seoul, Korea, to Los Angeles, California. According to Ajugwo's instructions, Turner and Omine were to deliver the heroin to Ajugwo in Los Angeles in exchange for $10,000. Ajugwo provided to Omine and Turner the funds necessary for the trip.

In November 1993, Omine and Turner flew to Korea and picked up the heroin. Upon returning to the United States with the heroin on December 4, 1993, Turner and Omine were arrested. Turner and Omine then agreed to deliver the heroin to Ajugwo at a Los Angeles restaurant under the supervision of law enforcement agents. On December 6, 1993, when Ajugwo met Turner and Omine to pick up the heroin, she was arrested and taken into custody.

On February 11, 1994, a federal grand jury returned a three-count indictment charging Ajugwo, Turner, and Omine with conspiracy to import heroin (21 U.S.C. § 963); importation of heroin (21 U.S.C. § 952(a)(2)); and possession with intent to distribute heroin (21 U.S.C. § 841(a)(1)).

On April 15, 1995, a federal grand jury returned a first superseding indictment charging Ajugwo and co-defendants Turner, Omine, and Barry Owens Williams with conspiracy to import heroin (21 U.S.C. § 963) and conspiracy to possess with intent to distribute heroin (21 U.S.C. § 846). Ajugwo was charged with a separate count of possession with intent to distribute heroin (21 U.S.C. § 841(a)(1)).

Ajugwo entered into an agreement to meet with the Government. According to the written proffer agreement, the Government promised not to offer Ajugwo's proffer statements in its case-in-chief, or in connection with any sentencing proceeding, on the condition that Ajugwo agreed to respond truthfully and completely to all questions asked at the proffer meeting. If, however, the Government ever concluded that Ajugwo was less than truthful or otherwise knowingly withheld material information, under the terms of the agreement, the Government, upon giving Ajugwo notice, could use Ajugwo's statements against her for any purpose.

According to the Government, in the proffer meeting held on March 9, 1994, Ajugwo denied any knowledge of prior narcotics transactions and did not provide facts concerning the arrangements she made with the heroin source or her instructions to Turner while Turner was in East Asia. However, in proffer meetings with the other defendants, the Government learned that Ajugwo was more extensively involved in the November-December heroin transaction than she had indicated in her March 9, 1994, proffer meeting. The Government also learned of several other drug transactions in which Ajugwo had been involved. Thus, the Government concluded that Ajugwo withheld information during the March 9 meeting.

On September 13, 1994, Ajugwo signed a plea agreement in which she agreed to plead guilty to count one of the first superseding indictment, violation of 21 U.S.C. § 963, for which a mandatory minimum ten-year sentence applies. In exchange for Ajugwo's plea, the Government agreed to recommend a three-level reduction for acceptance of responsibility. The parties also agreed that pursuant to sentencing guideline § 2D1.1, the base offense level for the pending offense was 32. In paragraph seven of the plea agreement, the parties agreed that the Government would not "affirmatively seek, [or] take a position, on a sentence enhancement for [Ajugwo's] role in the offense under U.S.S.G. § 3B1.1, subject to the provision set forth in the paragraph below." The paragraph to which the parties were referring states in part:

[T]he government reserves the right to argue at sentencing that § 5C1.2 is inapplicable based on the criteria set forth therein, including the right to argue that defendant had an aggravating role as defined in § 5C1.2(4), notwithstanding its agreement not to seek the sentence enhancement under § 3B1.1 as set forth above.

During the sentencing process, Ajugwo argued that she qualified for the safety valve provision because she had satisfied each of the five criteria set forth in § 5C1.2. The effect of the safety valve provision would be a sentence below the mandatory minimum ten-year sentence. Ajugwo further argued that as part of the plea discussions, the Government had verbally waived its right to challenge the applicability of § 5C1.2 on the basis of the fifth element.

In opposition to Ajugwo's request for application of the safety valve provision, the Government argued that it had expressly reserved its right in the plea agreement to argue that § 5C1.2 was inapplicable and to submit to the court additional, pertinent information regarding Ajugwo's criminal conduct. The Government also contended that it did not verbally waive its right to argue that § 5C1.2 was inapplicable.

Without expressly ruling on the issue of whether the Government breached the plea agreement, the district court found, based on the corroborating evidence, that Ajugwo was not forthcoming and not entirely candid with regard to her role in the drug transactions. Therefore, holding that Ajugwo failed to meet her burden of establishing that she qualified for the safety valve provision, the court imposed the mandatory minimum sentence of ten years.

DISCUSSION

I. Plea Agreement

The district court's interpretation and construction of a plea agreement is reviewed for clear error. United States v. Floyd, 1 F.3d 867, 869 (9th Cir.1993). Factual findings regarding the terms of the plea agreement are also subject to the clearly erroneous standard of review. United States v. Sharp, 941 F.2d 811, 816 (9th Cir.1991).

Ajugwo argues that as part of the plea agreement, the Government verbally promised not to oppose application of the safety valve provision on the ground that Ajugwo failed to satisfy the fifth prong of the...