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![handle is hein.congcourts/gsenupa0008 and id is 1 raw text is: Guideline Sentewctng Update
a publication of the FederalJudicial Center
Determining the Sentence.
Safety Valve Provision
Fifth Circuit holds that statements to a probation
officer do not satisfy requirement to provide informa-
tion to the Government. Defendant faced a ten-year
mandatory minimum sentence after pleading guilty to
a drug conspiracy charge. He requested application of 18
U.S.C. §3553(f), which allows sentencing under the
Guidelines without regard to the mandatory minimum.
USSG §5C1.2 incorporates §3553(f) into a guideline, and
subsection (5) requires the defendant to have truthfully
provided to the Government all information and evi-
dence the defendant has concerning the offense or
offenses that were part of the same course of conduct or
of a common scheme or plan. The probation officer
interviewed defendant in preparation of the presentence
report, but neither defendant nor the probation officer
spoke to the government's case agent. The court gave
defendant an opportunity to do so, but defendant re-
fused. The court declined to apply §5C1.2 and sentenced
defendant to the mandatory minimum.
Defendant argued on appeal that his discussion with
the probation officer satisfied the requirement to disclose
to the Government all information he knew about the
criminal offense because the probation officer is, for
purposes of §5C1.2, the Government. The appellate
court disagreed and affirmed the sentence. In the con-
text of the sentencing hearing, [Fed. R. Crim. P.] 32(c) uses
'Government' in conjunction with 'attorney' or 'counsel.'
By the use of in pari materia, the Government argues that
we should construe 'Government' in §5C1.2 the same
way. The Government's position is supported by §5C1.2's
explicit cross reference to Rule 32. See §5C1.2 commen-
tary n.8. We agree with the Government and the district
court that the probation officer is, for purposes of§5C .2,
not the Government. The purpose of the safety valve
provision was to allowless culpable defendants who fully
assisted the Government to avoid the application of the
statutory mandatory minimum sentences. . . . A
defendant's statements to a probation officer do not as-
sist the Government.
U.S. v. Rodriguez, 60 E3d 193, 195-96 (5th Cir. 1995).
First Circuit holds that defendant must make affir-
mative act of cooperation in providing information
and evidence to government under §3553(f)(5). The
safety valve provision in 18 U.S.C. §3553(f) requires,
inter alia, that (5) not later than the time of the sentenc-
volume 8, number 1, October 12, 1995
)ijieglf g, the defendant has truthfully provided to the
,,. . Trnment all information and evidence the defendant
as concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or
plan. Although defendant did not directly speak with the
government, he argued that he effectively provided the
required information because his discussion of the crime
with his coconspirators had been recorded by an under-
cover agent and, when pleading guilty, he admitted to the
facts presented by the government at the plea hearing.
The district court refused to apply §3553(f).
The appellate court affirmed. Whatever the scope of
the 'information and evidence' that a defendant must
provide to take advantage of section 3553(f)(5), we hold
that a defendant has not 'provided' to the government
such information and evidence if the sole manner in
which the claimed disclosure occurred was through
conversations conducted in furtherance of the defen-
dant's criminal conduct which happened to be tape-
recorded by the government as part of its investigation.
... Nor does it suffice for the defendant to accede to
the government's allegations during colloquy with the
court at the plea hearing. Section 3553(f)(5) contem-
plates an affirmative act of cooperation with the govern-
ment no later than the time of the sentencing hearing.
Here, Wrenn did not cooperate .... And when the court
offered to postpone sentencing so Wrenn could make
a proffer to the government for purposes of section
3553 (f) (5), he refused.
U.S. v. Wrenn, No. 94-2089 (1st Cir. Sept. 25, 1995)
(Lynch, J.).
See Outline generally atV.E
Violation of Supervised Release
- Sixth Circuit holds that amended statutory language
does not require courts to follow revocation policy state-
ments. The Violent Crime Control and Law Enforcement
Act of 1994, effective Sept. 13, 1994, amended 18 U.S.C.
§3553(a) (4) to state that courts shall consider... (B) in
the case of a violation of probation or supervised release,
the applicable guidelines or policy statements issued
by the Sentencing Commission. Defendant argues that
this amendment indicates that Congress intended that
courts must now impose sentence following revocation
of probation or supervised release in accordance with
the Chapter 7 policy statements in the Guidelines. After
his supervised release was revoked he was subject to a
Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions
on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy
statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be consid-
ered a recommendation or official policy of the Center; any views expressed are those of the author.
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