Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 00-cr-00115) District Judge: The Honorable Donald E. Ziegler
Before: Rendell, Smith and Aldisert, Circuit Judges
The opinion of the court was delivered by: 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.*fn1 We affirm the district court and hold that he may not stay quiet and still qualify for the Safety Valve.
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:
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?
Q Why are you entering this plea ...