U.S. v. Warren

• Decision Date: 07 August 2003
• Docket Number: No. 02-3110.,02-3110.
• Citation: 338 F.3d 258
• Parties: UNITED STATES of America v. Isaiah WARREN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

338 F.3d 258

UNITED STATES of America v. Isaiah WARREN, Appellant.

No. 02-3110.

United States Court of Appeals, Third Circuit.

Argued: May 14, 2003.

Filed August 7, 2003.

Shelley Stark, Federal Public Defender, Lisa B. Freeland, Assistant Federal Public Defender (argued), Pittsburgh, PA, for Appellant.

Mary Beth Buchanan, United States Attorney, Gregory Nescott, Assistant United States Attorney, Bonnie R. Schlueter, Assistant United States Attorney, Kelly R. Labby, Assistant, United States Attorney (argued), Pittsburgh, PA, for Appellee.

Before RENDELL, SMITH and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal by Isaiah Warren from his sentence in the United States District Court for the Western District of Pennsylvania following a guilty plea requires us to decide whether a defendant may invoke the Fifth Amendment and refuse to provide the government with additional information pursuant to Title 18, United States Code, Section 3553(f)(5), incorporated by United States Sentencing Guideline § 5C1.2 (the "Safety Valve") and still have the advantage of these provisions.¹ We affirm the district court and hold that he may not stay quiet and still qualify for the Safety Valve.

I.

Warren's troubles began at approximately 8:30 a.m. on May 19, 2000 when members of the Drug Enforcement Administration's Airport Task Force were alerted by a supervisor of the Pittsburgh Federal Express facility that four suspicious "FedEx" packages had been intercepted. Each package was addressed to "Mr. and Mrs. Timothy Reed, 376 Mt. Pleasant Road, Pittsburgh, Pennsylvania 15214."

A drug detection dog was called to the facility and alerted to the presence of narcotics. The subsequent execution of a search warrant revealed almost 10 kilograms of cocaine hydrochloride secreted in a variety of baby supplies. Task Force members then repackaged the cocaine in preparation for a controlled delivery.

Meanwhile, Warren was in wait at 376 Mt. Pleasant Road — the residence of his girlfriend, Rayletta Reed. Reed was unaware of the nature of the impending delivery, but became suspicious after observing peculiar behavior by Warren in the days preceding and including the day of his arrest. Warren spoke to Reed on the day before delivery and requested permission to have packages delivered to her residence. He arrived at the residence some time before 8:30 a.m. on May 19. Throughout the day, Reed observed Warren smoke marijuana and become increasingly nervous as the packages failed to arrive. At least 17 phone calls were placed to FedEx from Reed's residence, inquiring as to the delivery status of the packages. Reed estimated that, at one point, Warren used her phone to call FedEx every 20 minutes.

At approximately 7:40 p.m., a Task Force member posing as a FedEx employee delivered the packages to the Mt. Pleasant residence. Isaiah Warren, waiting outside for the delivery, identified himself and signed for the packages as "Mr. Reed."

Warren was observed placing the packages in the trunk of his car, and, as he prepared to leave the residence, police executed a stop of the vehicle. While being taken into custody without incident, Warren stated, "I can't believe that I'm going to jail for ten kilos." App. at 30; Presentence Investigation Report ¶ 11.

On June 13, 2000, Warren was charged in an indictment with conspiracy to distribute and possess with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846. Warren pleaded guilty to one count of § 846 on August 22, 2000.

At the ensuing plea colloquy, the district court explained to Warren the rights that he would be forfeiting by pleading guilty, inquired as to his competence and his satisfaction with his legal representation, read the charge against him and outlined the elements of the offense. The potential penalties facing Warren were then explained as follows:

BY THE COURT:

Q ... Now, if the government can prove each of those elements beyond a reasonable doubt, by statute of Congress, you can be sent to prison for a term of imprisonment of not less than ten years, a fine not to exceed $4,000,000.00, a term of supervised release of at least five years when you are released from prison, and you must pay a special assessment in the sum of $100.00.

Now, do you understand those provisions?

A Yes, sir.

Q Why are you entering this plea of guilty?

A I'm guilty.

MR. NESCOTT (U.S. Attorney's Office): Your Honor, just one addition on the colloquy. The Court mentioned that the penalty is potentially not less than ten years. Of course, the guideline here actually is a hundred and twenty-one months. It's a technical matter, but potentially the sentence could be up to life as a maximum under this statute.

THE COURT: Very good, sir.

App. at 29. The government proceeded to summarize its evidence against Warren, and the district court ultimately accepted Warren's plea. Warren lodged no objection.

Under the terms of the plea agreement, the government agreed to take the following action: (1) recommend to the court that the offense level of 32 not be increased under U.S.S.G. § 3B1.1 (Aggravating Role); (2) recommend that the court reduce the offense level by three levels for acceptance of responsibility under U.S.S.G. § 3E1.1; (3) accept a stipulation as to drug quantity; and (4) recommend to the court that Warren be sentenced without regard to any mandatory minimum sentence pursuant to the Safety Valve, U.S.S.G. § 5C1.2, provided that Warren satisfy all its qualifying conditions.

A Presentence Report (PSR) indicated that the base offense level was 32 pursuant to U.S.S.G. § 2D1.1(c)(4) and recommended a decrease of three points for Warren's acceptance of responsibility under § 3E1.1. The PSR recommended against applying the Safety Valve adjustment. It determined that, although Warren satisfied the qualifying criteria in 18 U.S.C. § 3553(f)(1)-(4), he failed to meet the requirements of subsection (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 PSR fixed Warren's offense level at 29.

Warren's Criminal History Points merited a Category I classification, exposing him to a sentencing range of 87-108 months. However, because the minimum term of imprisonment under 21 U.S.C. § 841(b)(1)(A)(ii)(II) was not less than ten years to a maximum of life, and because Warren did not qualify for the Safety Valve — which would have allowed for a disregard of the statutory minimum — the PSR recommended that his sentence be increased to 120 months pursuant to U.S.S.G. § 5G1.2(c)(2). It also stated that a term of supervised release of no less than five years was required under 21 U.S.C. § 841(b)(1)(A)(ii)(II).

Warren objected to the PSR and requested application of the Safety Valve provision notwithstanding his refusal to come forward with "all information and evidence" as required by 18 U.S.C. § 3553(f)(5), arguing that total compliance with the letter of the statute would have placed his family in danger and trenched upon his Fifth Amendment rights. Had the Court accepted this argument, it could have disregarded the mandatory minimum sentence and applied an additional reduction in the base offense level by two levels. This would have positioned Warren at the base level of 27 contemplating a sentencing range of 70-87 months, instead of 120 months. Warren did not object to the five-year mandatory term of supervised release.

The Government remained unsatisfied with the quality of information Warren had provided pursuant to 18 U.S.C. § 3553(f)(5). Specifically, the government was interested in the names of buyers and suppliers. App. at 65-66; Br. for Appellant at 9. The district court agreed and rejected the Safety Valve objection, stating "Let's talk about the Fifth Amendment privilege of self-incrimination. It's gone. He has pled guilty." App. at 52. Warren was sentenced to the mandatory minimum of ten years to be followed by five years of supervised release. No direct appeal was taken.

On August 14, 2001, Warren filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, arguing that his trial counsel was ineffective for failing to file a direct appeal as requested. The parties agreed that Warren's right to bring a direct appeal should be reinstated nunc pro tunc. The district court entered the requested order and dismissed the remainder of the Motion to Vacate as premature without prejudice to renew. A timely notice of appeal was filed on July 29, 2002.

The United States District Court for the Western District of Pennsylvania had jurisdiction of the underlying action pursuant to 18 U.S.C. § 3231 based upon Warren's narcotics offense against the laws of the United States. This Court has appellate jurisdiction pursuant to 18 U.S.C. § 1291. Moreover, we have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1), which provides jurisdiction over sentences allegedly imposed in violation of law.

II.

We exercise plenary review over constitutional claims involving a violation of the Fifth Amendment privilege against self-incrimination. United States v. Gomez, 237 F.3d 238, 239 (3d Cir.2000), cert. denied, 532 U.S. 984, 121 S.Ct. 1629, 149 L.Ed.2d 490 (2001). The same standard applies to review of the district court's interpretation and application of the Sentencing Guidelines. United States v. Thornton, 306 F.3d 1355, 1358 (3d Cir. 2002).

A.

"No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. CONST. amend. V.

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