On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 01-cr-00265) District Judge: Hon. Donetta W. Ambrose
Before: Sloviter, Rendell, Circuit Judges,
and Debevoise, District Judge *fn1
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) January 27, 2003
The issue presented in this case is whether a district court has the authority under the Sentencing Guidelines to apply the safety valve to a defendant whose criminal history category of II overstated the seriousness of the defendant's prior record. This court has not previously spoken to this issue. Seven other courts of appeals have considered the issue, and each has held that the statutory language limiting the availability of the safety valve to defendants with one criminal history point must govern. We turn to the facts of this case before considering the legal issue.
From the late summer of 1999 until March of 2001, Appellant Jermaine Boddie and Saunders Mabrey supplied cocaine to Gregory Armstrong, who distributed about 15 kilograms of the drug in the Western District of Pennsylvania. Boddie and Mabrey, who were located in San Francisco, initially met with Armstrong in California, and later shipped cocaine to him in food cans sent to a store in McKeesport, Pennsylvania. Armstrong repackaged and distributed the cocaine. He paid Boddie and Mabrey approximately $17,000 per kilogram of cocaine.
Armstrong was arrested in March 2001. He told authorities that he was still in touch with his suppliers and that he owed them about $75,000 for the last shipment of cocaine. In August 2001, the Drug Enforcement Administration ("DEA") recorded telephone conversations between Armstrong and Mabrey about their cocaine dealings and the debt that Armstrong owed. On October 3, 2001, one of Armstrong's associates who was working as a confidential informant with the DEA had a recorded conversation with Mabrey, in which the confidential informant told Mabrey that the money to repay the debt had been gathered. On October 4, 2001, DEA agents arrested Boddie and Mabrey, who had arrived in Pittsburgh, Pennsylvania, to collect the $75,000.
On October 31, 2001, a grand jury indicted Boddie and Mabrey, charging them with conspiracy to distribute and possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. S 846. On February 8, 2002, Boddie and Mabrey pled guilty to the charge pursuant to a plea agreement in which it was agreed, among other things, that the quantity of cocaine attributable to each of them was at least five but less than 15 kilograms. The Government agreed that if Boddie and Mabrey satisfied statutory requirements, it would recommend at sentencing that the District Court apply the safety valve provision of the Sentencing Guidelines, U.S.S.G. S 5C1.2, and sentence them without regard to the statutory mandatory minimum penalty.
In Boddie's Presentence Investigation Report ("PSR"), the United States Probation Office determined that Boddie has a criminal history category of II based upon three criminal history points, including one point for a 1999 conviction for driving with a suspended license and two points because the present offense occurred during the period of probation imposed for the driving violation. The Probation Office also stated that it appeared that Boddie did not qualify for the safety valve provision and that he was subject to the statutory mandatory minimum sentence of 120 months.
Boddie objected to the PSR, claiming that his criminal history category was overstated based upon the absence of any involvement with the criminal justice system other than driving violations, and that he qualifies for the application of the safety valve provision. The District Court agreed with Boddie that his criminal history category overstates the seriousness of his past criminal conduct and that a criminal history category of I applies. It ruled, however, that Boddie does not qualify for the safety valve provision because he has more than one criminal history point. The District Court sentenced Boddie to the statutory mandatory minimum of 120 months imprisonment and 60 months supervised release, and ordered him to pay a $100.00 special assessment. This appeal followed. *fn2
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a). Because this appeal concerns the construction of the Sentencing Guidelines, our standard of review is plenary. United ...