U.S. v. Shrestha

• Decision Date: 24 June 1996
• Docket Number: 95-50108,Nos. 95-50040,s. 95-50040
• Citation: 86 F.3d 935
• Parties: 96 Cal. Daily Op. Serv. 4598, 96 Daily Journal D.A.R. 7402 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Prakash Man SHRESTHA, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 935

86 F.3d 935

96 Cal. Daily Op. Serv. 4598, 96 Daily Journal

D.A.R. 7402

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Prakash Man SHRESTHA, Defendant-Appellant, Cross-Appellee.

Nos. 95-50040, 95-50108.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 7, 1996.

Decided June 24, 1996.

Angel Navarro, Deputy Federal Public Defender, Los Angeles, California, for defendant-appellant, cross-appellee.

Becky S. Walker, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee, cross-appellant.

Appeal from the United States District Court for the Central District of California, A. Andrew Hauk, District Judge, Presiding.

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

T.G. NELSON, Circuit Judge:

OVERVIEW

Prakash Man Shrestha, a native and citizen of Nepal, was convicted by a jury of possession and importation of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 952(a), and sentenced to a term of seventy-eight months in prison, reduced from the ten-year mandatory minimum sentence. The district court reduced Shrestha's sentence pursuant to the "safety valve" provision of the Mandatory

                Minimum Sentencing Reform Act, 18 U.S.C. § 3553(f), and U.S.S.G. § 5C1.2.   The Government disputes the reduction, arguing that Shrestha was not eligible for the safety valve reduction because he did not comply with the provision requiring him to tell all he knew about the crime.   We have jurisdiction under 18 U.S.C. § 3742, and we affirm
                

FACTS AND PROCEDURAL HISTORY

Prakash Man Shrestha ("Shrestha") was born in 1961 in the Nepalese village of Chitlang. Prior to his arrest, he was employed as a trekker for an American company in Nepal. A trekker or "sherpa" is hired to lead tourist expeditions through the mountains, carrying loads and clearing trails for climbers. Through his income as a trekker, Shrestha supported a wife, as well as his parents and siblings, all of whom reside together in Chitlang.

In June 1994, Shrestha was approached by a man named Keepa Gurung ("Keepa") at a tea shop in Nepal. Keepa was apparently looking for "sherpas" and mistook Shrestha for a member of that tribe. ¹ Keepa offered Shrestha a job in the United States and suggested that they meet again. Keepa eventually furnished Shrestha with an airline ticket and $1,500 cash.

Following Keepa's instructions, Shrestha traveled to Thailand. Keepa met Shrestha in Bangkok as arranged and took him to a hotel, where he gave him an apparently empty suitcase to take to New York via Los Angeles. On July 16, 1994, Shrestha arrived at the Los Angeles International Airport. Shortly after he disembarked, he was stopped for questioning by a customs agent who thought he appeared nervous. A second customs inspector, Sylvia Alvarez, searched Shrestha's suitcase, the sides of which struck her as unusually thick. Finding no contraband inside the case, she x-rayed it and finally drilled a hole in its side. The case contained about two kilos of 85% pure heroin.

After the drugs were found, Shrestha was arrested and advised of his Miranda rights in English by Special Agent Douglas Panning. Shrestha indicated that he understood English and waived his Miranda rights both orally and in writing. He also expressed a desire to "talk to someone ... to tell someone everything." Special Agent Sandra Redfearn and another agent then interviewed Shrestha. ² According to Agent Redfearn, Shrestha related his history with Keepa and admitted that he knew he was carrying drugs. Shrestha also stated he expected to be paid 200,000 rupees (approximately four thousand dollars) upon delivery of the drugs to a Nepalese man at John F. Kennedy Airport in New York. At trial, Shrestha, who pleaded not guilty, testified as to his meeting and arrangements with Keepa, but claimed to have had no knowledge of the drugs prior to their discovery by the customs agents.

Shrestha was tried by a jury on October 12-14 and October 17 and found guilty of possession with intent to distribute and importation of over two kilos of heroin. In an interview with a probation officer, Shrestha again stated that he did not know there was heroin in the suitcase, and he reiterated his trial testimony that he was merely returning the suitcase to a friend of Keepa's. The probation officer calculated Shrestha's guideline sentence range to be seventy-eight to ninety-seven months, based on a ten-year mandatory minimum with a four-level downward adjustment for minimal role in the offense. At the sentencing hearing, Shrestha did not recant his trial testimony that he had no knowledge of the drugs prior to their discovery by the customs agents. The district court sentenced Shrestha to seventy-eight months in prison based on the adjustment recommended by the probation officer and its further finding that Shrestha was eligible for relief under the "safety valve" provision of the Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C.

                §   3553(f), and U.S.S.G. § 5C1.2.  The Government timely appealed the reduction under § 3553(f). 3
                

ANALYSIS

The issue to be determined here is whether the district court correctly determined that Shrestha qualified for relief under the provisions of subsection (5) of the Mandatory Minimum Sentencing Reform Act ("MMSRA"), 18 U.S.C. § 3553(f), also known as the "safety valve" provision, which provides for relief from an otherwise applicable mandatory minimum sentence 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. ⁴

The parties agree that Shrestha qualifies under the first four requirements. Interpretation of § 3553(f)(5) is a matter of first impression in this circuit.

Until Congress passed 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); U.S.S.G. § 5K1.1. 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 drug couriers or "mules," who typically have less knowledge. See United States v. Arrington, 73 F.3d 144, 147 (7th Cir.1996); United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir.1995).

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). Section 3553(f) remedies this situation by allowing 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.

We review de novo the district court's interpretation and application of the sentencing guidelines. United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, 504 U.S. 978, 112 S.Ct. 2954, 119 L.Ed.2d 576 (1992). However, we review for clear error the district court's factual determination that a particular defendant is eligible for relief under section 3553(f). Id.; see Acosta-Olivas, 71 F.3d at 378 n. 3.

As noted above, Congress added the safety valve provision in part to grant relief to defendants whose knowledge may be of little or no use to the government, and who would thus be ineligible for reduction under the substantial assistance provision of the guidelines, U.S.S.G. § 5K1.1. Accordingly, section (5) of the safety valve provision has been termed a "tell all you can tell" requirement. Acosta-Olivas, 71 F.3d at 379 (quotations omitted). In other words, the defendant must provide, prior to sentencing, all information at his disposal which is relevant to the offense, whether or not it is relevant or useful to the government's investigation. See id. at 378-79; United States v. Ivester, 75 F.3d 182, 184 (4th Cir.1996), cert. denied, --- U.S. ----, 116 S.Ct. 2537, 135 L.Ed.2d 1060 (1996).

As several courts to consider the matter have determined, this information includes details concerning other parties to the crime, such as the source who provided defendant with the drugs and other persons in the chain of distribution, if known. See Arrington, 73 F.3d at 148; Acosta-Olivas, 71 F.3d at 378; United States v. Rodriguez, 69 F.3d 136, 143 (7th Cir.1995); United States v. Wrenn, 66 F.3d 1, 3 (1st Cir.1995). If the defendant does not possess such information, "he at least should [communicate] that fact to the government in order to qualify for the reduction." Rodriguez, 69 F.3d at 143...