U.S. v. Ramirez

• Decision Date: 04 September 1996
• Docket Number: No. 95-1063,95-1063
• Citation: 94 F.3d 1095
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro RAMIREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1095

94 F.3d 1095

UNITED STATES of America, Plaintiff-Appellee, v. Pedro RAMIREZ, Defendant-Appellant.

No. 95-1063.

United States Court of Appeals Seventh Circuit.

Argued May 16, 1996.

Decided Sept. 4, 1996.

Barry Rand Elden, Chief of Appeals, Kaarina Salovaara (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Barry S. Alberts, Matthew J. Fischer (argued), Schiff, Hardin & Waite, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

The "safety valve" provision of the United States Sentencing Guidelines, U.S.S.G. § 5C1.2, directs the district court to impose a sentence without regard to the statutory mandatory minimum sentence if a defendant satisfies certain criteria. Pedro Ramirez appeals the district court's decision to sentence him to a mandatory minimum sentence of sixty months, based on that court's determination that he did not qualify for the safety valve provision. We affirm the judgment of the district court.

I BACKGROUND

A. Facts

A package sent from Bogota, Colombia and addressed to Miller Spellman at a Chicago address was intercepted by a customs inspector who discovered that it contained several kilograms of cocaine. After several failed attempts at a controlled delivery, on January 18, 1994, an undercover customs agent successfully delivered the package to a man named Juan Carlos Lopez, who lived at the address on the box. Lopez then was arrested. He explained that he was accepting delivery of some computer items for a man named Pedro, because the items were to be a surprise present for Pedro's wife. When Pedro Ramirez later arrived to pick up the package, he was arrested. Mr. Ramirez made a statement to the customs agents at the time of his arrest. He explained that, for one hundred dollars, he was supposed to deliver the package to a man named "Ricky," who was thirty-five years old and drove a two-door blue Toyota. See R.64 at 5.

B. District Court Proceedings

Mr. Ramirez was charged with possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On August 10, 1994, he entered a guilty plea and admitted possession, with intent to distribute, of 2,999.5 grams of cocaine. ¹ The presentence Prior to sentencing, Mr. Ramirez filed a written objection to the presentence report. He asserted that he had satisfied the criteria of the safety valve provision codified at 18 U.S.C. § 3553(f):

investigation report prepared by the United States Probation Office stated that the applicable guideline range was 57 to 71 months and that the mandatory minimum sentence was 60 months. The probation officer also submitted a supplemental report to the court, noting without comment the recent creation of the safety valve provision that allows imposition of a sentence without regard to the statutory mandatory minimum sentence.

[Mr. Ramirez] has zero criminal history points. Violence was not in any way involved in the offense. Death or serious bodily injury was not inflicted. He was not a manager, organizer, leader or supervisor. The evidence indicates that he has truthfully provided to the government all information and evidence he has concerning the offense.

R.53, Defendant's Objection to Presentence Investigation Report, at 2. Mr. Ramirez then submitted that the court should impose a sentence within the applicable Guideline range without regard to the statutory minimum sentence. Id.

The government responded that Mr. Ramirez was not qualified for the safety valve provision because he had failed to provide to the government all the information and evidence he had concerning the offense.

[D]efendant has failed to meet this criteri[on]. To the contrary, and despite several invitations from the government, defendant has refused (as is his right) to provide "all information and evidence" he has concerning his offense. Although defendant told the arresting agents (at the time that he was arrested) that he was meeting co-defendant Lopez and picking up the box (containing cocaine) at the direction of another individual, defendant declined to provide the agents with any information about his conversations with co-defendant Lopez or his dealings with Lopez. Similarly, defendant refused to provide information about the circumstance of this offense, e.g., why did he call Lopez at various times during the fall of [1993] and early 1993?; who told him to call Lopez on each occasion?; what did they discuss?; what did they discuss just prior to the arrests?; why did he visit Lopez' apartment building prior to January 18, 1994?; etc.

R.54, Government's Response to Defendant's Objection, at 2. Mr. Ramirez did not reply further; in particular, he never offered evidence concerning the questions raised in the government's filing.

On December 16, 1994, at the sentencing hearing, the district court heard arguments on the issue and concluded that Mr. Ramirez did not qualify for the safety valve under § 5C1.2 because he had not truthfully provided all the information he had.

I think it's clear from the factual scenario here that the defendant didn't meet that standard [of truthfully providing to the government all information and evidence he has concerning the offense] because he was asked about it right at the time of the arrest and he didn't provide any of the particulars about the conversation or the details of how he met [Lopez] or what their plans were with respect to the drugs.

But, of course, this section says that's not a bar to someone getting 5C1.2 because someone can cooperate up to the time of sentencing.... I fully agree with the government that [Ramirez] stood on his rights. He didn't have to answer anything at the time of the arrest. But between now and the time of the arrest the defendant still hasn't provided [the government] ... and [Ramirez] was a particip[ant] in the conversation [with Lopez] and so he knows what was said.

And the court finds given the language of this, all the information the defendant has, the defendant hasn't met that burden in this particular case. And so I'm not going to apply 5C1.2.

R.64, Sent. Tr., at 8-9. Mr. Ramirez then was sentenced to the mandatory minimum sentence of sixty months of incarceration, four years of supervised release, and a fine of $2,000.

Mr. Ramirez appeals his sentence; he submits that the district court erred as a matter of law in deciding that he had failed to satisfy the fifth criterion of U.S.S.G. § 5C1.2.

II DISCUSSION

In 1994, when Congress passed the Mandatory Minimum Sentencing Reform Act ("MMSRA"), it included a "safety valve" provision that created more flexibility in sentencing by permitting defendants to be sentenced below the minimum sentences fixed by statute. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Prior to the enactment of the MMSRA, a drug crime offender could obtain a sentence below the statutory minimum only when the government filed a motion for downward departure based on the defendant's substantial assistance. See 18 U.S.S.G. § 3553(e). The safety valve provision now allows a sentence below the statutory minimum for a defendant who may be less culpable and less knowledgeable than other codefendants, but who nevertheless is willing to provide all the information he has. That provision is intended to benefit "first-time, nonviolent drug offenders who were not organizers of criminal activity and who have made a good faith effort to cooperate with the government." United States v. Arrington, 73 F.3d 144, 147 (7th Cir.1996); see also United States v. Thompson, 76 F.3d 166, 171 (7th Cir.1996) (discussing legislative history of the statute and guideline).

To be eligible for a reduction below a mandatory minimum sentence, a defendant must satisfy the five criteria presented in the statute (18 U.S.C. § 3553(f)) and repeated in the guideline (U.S.S.G. § 5C1.2). Section 5C1.2 provides as follows:

In the case of an offense under 21 U.S.C. § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below:

(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.

The focus of this appeal is on the fifth criterion--whether Mr. Ramirez truthfully and completely provided to the government all the information and evidence he had concerning the cocaine transaction to which he pleaded guilty and concerning any other activities that were related to that course of conduct or plan.

We review the district court's interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Randy, 81 F.3d 65, 68 (7th Cir.1996); United States v. Bush, 79 F.3d 64, 66 (7th Cir.1996). More...