U.S. v. Sherpa

• Decision Date: 05 March 1997
• Docket Number: 95-50054,Nos. 95-50007,s. 95-50007
• Citation: 110 F.3d 656
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Pemba Rita SHERPA, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 656

110 F.3d 656

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Pemba Rita SHERPA, Defendant-Appellant, Cross-Appellee.

Nos. 95-50007, 95-50054.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 7, 1996.

Decided Oct. 8, 1996.

As Amended on Denial of Rehearing and Rehearing En Banc

March 5, 1997.

Maria E. Stratton, Federal Public Defender, and Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant, cross-appellee.

Becky S. Walker and Aaron S. Dyer, Assistant United States Attorneys, Los Angeles, CA, for plaintiff-appellee, cross-appellant.

Appeal from the United States District Court for the Central District of California, Harry L. Hupp, District Judge, Presiding. D.C. No. CR-94-00564-HLH.

ORDER

March 5, 1997

The opinion filed in this case at 97 F.3d 1239 (1996), is amended as follows:

The panel constituted above has voted to deny the petitions for rehearing. Judge T.G. Nelson has voted to reject the suggestions for rehearing en banc and Judge Wallace and Judge W.D. Browning so recommend.

The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.

With the exception of the amendments listed above, the petitions for rehearing are denied and the suggestions for rehearing en banc are rejected.

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

T.G. NELSON, Circuit Judge:

Pemba Rita Sherpa, a native and citizen of Nepal, was convicted by a jury of possession of heroin with intent to distribute and of importation of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 952(a). The district court reduced Sherpa's sentence pursuant to the "safety valve" provision of the Mandatory Minimum Sentencing Reform Act of 1994 ("MMSRA"), 18 U.S.C. § 3553(f), codified in the sentencing guidelines at § 5C1.2. Sherpa appealed his conviction ¹ and the Government cross-appealed the district court's application of the "safety valve" provision. We have jurisdiction pursuant to 18 U.S.C. § 3742, and we affirm.

FACTS AND PROCEDURAL HISTORY

Pemba Rita Sherpa ("Sherpa") was born in 1956 in Phortze, a small and rather primitive village in Nepal. All the people born in this area of Nepal have the surname "Sherpa." Sherpas are known for their skills as trekkers, or "high altitude porters." Trekkers' responsibilities include carrying loads and blazing trails for climbers on mountain expeditions. The defendant was a professional trekker who led tourists on climbs most recently in the mountains near Kathmandu. Off-season, he farmed potatoes with his family in Phortze.

Sherpa testified that he was approached during the off-season by one Pujung Grung ("Pujung") in a bar in Kathmandu. Pujung was apparently looking for a "Sherpa" to transport a suitcase for him from Thailand to the United States. He asked Sherpa if he had a passport, and Sherpa told him that he did. Pujung gave him a telephone number, and Sherpa called him. Pujung asked Sherpa to give him his passport and offered to pay him approximately $6,000 plus travel expenses to carry the case, explaining that he had no passport of his own and could not travel. Sherpa testified that after Pujung gave him tea at his home, in the presence of his (Pujung's) wife, he was sure that the man's intentions were honorable, and he agreed to give Pujung his passport and make the trip to the United States.

Pujung provided Sherpa with travel documents and told him to go to the Taipei Hotel in Bangkok, where he would be met by an unidentified man with an empty suitcase. Sherpa was then to take the case to the Garden Hotel in New York City and call Pujung for further instructions. Sherpa went to the Taipei Hotel and was met by a man with a suitcase, who instructed Sherpa to pack his own belongings in the case, a hardsided model containing three mothballs. The parties dispute whether Sherpa told customs agents at Los Angeles International Airport ("LAX") that he thought the suitcase was unusually heavy.

Sherpa arrived at LAX on July 2, 1994, where he was detained and searched by customs agents after a computer "lookout" identified him as a potential narcotics smuggler. The agents searched, x-rayed, and finally drilled a hole in Sherpa's suitcase, which was found to contain three kilograms of 87% pure heroin, worth about $82,500 wholesale and $3.6 million retail.

Sherpa was arrested and given a Miranda warning by Special Agent Sene Tchen. Sherpa agreed to speak to Tchen without an attorney present and signed a waiver of the rights form. Sherpa then told Tchen in English the story of his meetings with Pujung Grung and his receipt of the suitcase as outlined above.

After a trial held September 21-23, 1994, the jury found Sherpa guilty on both counts of the indictment. The district court sentenced Sherpa to seventy-eight months, rather than the ten-year mandatory minimum sought by the Government. The court reduced Sherpa's sentence by four offense levels for minimal role and held the mandatory minimum inapplicable pursuant to the "safety valve" provision of the Mandatory Minimum Sentencing Reform Act of 1994, 18 U.S.C. § 3553(f), and U.S.S.G. § 5C1.2. The court declined to make an adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The Government does not dispute the adjustment for minimal role, but timely appeals the district court's application of the safety valve statute.

ANALYSIS

We review de novo the district court's interpretation and application of 18 U.S.C. § 3553(f). United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996). "However, we review for clear error the district court's factual determination that a particular defendant is eligible for relief under § 3553(f)." Id.; see United States v. Acosta-Olivas, 71 F.3d 375, 378 n. 3 (10th Cir.1995).

The only issue to be decided here is whether the district court clearly erred in determining that Sherpa qualified for relief under the provisions of subsection (5) of 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.

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." See United States v. Arrington, 73 F.3d 144, 147 (7th Cir.1996) Specifically, § 3553(f) provides that a court shall impose a sentence without regard to any statutory minimum if:

(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.

18 U.S.C. § 3553(f).

The parties agree that Sherpa qualifies under the first four requirements. The district court found that Sherpa qualified under the fifth as well because he cooperated with the customs agents, providing names and details about his contacts in Kathmandu and Bangkok which were corroborated by other sources. ² Moreover, the court found that Sherpa's story was consistent:

Mr. Sherpa has maintained his innocence from the beginning. It's been based on his statement from the very beginning that he did not know what was in the suitcase, and which he repeated here at trial. And the jury found to the contrary based upon circumstantial evidence. That was a jury finding which I think was supported by sufficient circumstantial evidence that really can't be questioned here, at least not today.

[GER 186.]

Prior to Congress's enactment of the safety valve, 18 U.S.C. § 3553(f), departure below the statutorily prescribed mandatory minimum sentence for certain drug related offenses was available only under the provision for substantial assistance to authorities, 18 U.S.C. § 3553(e). United States v. Ajugwo, 82 F.3d 925, 926 (9th Cir.1996). A district court may only consider granting relief for substantial assistance upon a motion by the prosecutor. Id.; 18 U.S.C. § 3553(e); United States v. Ivester, 75 F.3d 182, 185 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 2537, 135 L.Ed.2d 1060 (1996).

In enacting § 3553(f), Congress recognized that "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." Ajugwo, 82 F.3d at 926. As the legislative history to 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).

Under the safety valve provision, the judge, without the threshold requirement of a motion by the prosecutor, can-indeed...