Federal Corner: Tardiness Is No Bar to Safety-Valve Relief – By F. R. Buck Files Jr.

/

April 11, 2012, was a great day for Jesus Rodriguez, who learned that the United States Court of Appeals for the District of Columbia Circuit held that his trial counsel provided ineffective assistance by not reasserting Rodriguez’s eligibility for safety-valve relief after he had truthfully debriefed. United States v. Rodriguez, ___ F.3d ___, 2012 WL 1193763 (D.C. Cir. 2012) [Panel: Circuit Judge Henderson and Senior Circuit Judges Williams and Ginsburg. (Opinion by Judge Henderson.)]

Rodriguez had offered to sell a kilogram of cocaine to an individual who was cooperating with the Metropolitan Police Department in Washington, D.C. Bad decision. After being indicted and pursuant to a plea agreement, he entered pleas of guilty to violations of 21 U.S. C. § 841 (a) (1) and 841(b)(1)(B)(ii). Rodriguez’s PSR recommended a Guideline range of 46–57 months; however, the statute carried a mandatory imprisonment of 60 months.

In a sentencing memorandum filed with the district court, Rodriguez argued for a “sentence below the statutory minimum sentence” because he met the five requirements of the safety-valve provision. [Note: The safety-valve provision, 18 U.S.C. § 3553(f), incorporated into the Guideline at § 5C1.2, permits the district court to impose a sentence below the statutory minimum if it finds:

(1)  the defendant does not have more than 1 criminal history point . . . ;
(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 . . . and was not engaged in a continuing criminal enterprise . . . ; 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.](Emphasis added.)

The Government responded that Rodriguez had failed to fully and truthfully debrief and was not entitled to safety-valve relief. After an evidentiary hearing, the district court agreed with the Government and determined that Rodriguez was not entitled to safety-valve relief. A revised PSR was prepared and raised the Guideline range to 60–71 months. The Government suggested a Guideline range of 78–97 months, requesting an enhancement for obstruction of justice. Rodriguez suggested a Guideline range of 46–57 months.

After the PSR had been prepared, Rodriguez met with federal officers for a final debriefing. At Rodriguez’s sentencing hearing, the Government acknowledged that,

[A]fter more than nine months of dissembling, the
[D]efendant finally debriefed truthfully with law enforcement authorities. Though this information was not particularly useful for law enforcement purposes, the [D]efendant does deserve some credit for finally being truthful.

With no mention of the safety-valve or the two-level decrease under U.S.S.G. § 2 D.1.1(b)(16), the district court imposed 72 months imprisonment. Rodriguez timely gave notice of appeal.

[From the Opinion]

Judge Henderson’s opinion reads, in part, as follows:

Rodriguez argues that his lawyer’s failure to argue for safety-valve relief amounts to ineffective assistance of counsel in violation of his Sixth Amendment right.

 [Ineffective Assistance of Counsel]

We address first whether Rodriguez’s lawyer’s failure to raise the safety valve issue at the February 19, 2010, sentencing hearing constitutes ineffective assistance of counsel. We review an ineffective assistance of counsel claim under the two-part test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed on such a claim, Rodriguez must show: “(1) ‘that [his] counsel’s performance was deficient,’ and (2) ‘that the deficient performance prejudiced the defense.’” United States v. Shabban, 612 F.3d 693, 697 (D.C.Cir.2010) (quoting Strickland, 466 U.S. at 687). “Deficient” means that “‘counsel’s representation fell below an objective standard of reasonableness.’” United States v. Goodwin, 594 F.3d 1, 4 (D.C.Cir.2010) (quoting Smith v. Spisak, __ U.S. __, ___, 130 S.Ct. 676, 685, 175 L.Ed.2d 595 (2010) (quoting Strickland, 466 U.S. at 688)). “Prejudice” means “that there is a ‘reasonable probability that, but for counsel’s . . . errors, the result of the proceeding would have been different.’” Id. (quoting Smith, 130 S.Ct. at 685 (quoting Strickland, 466 U.S. at 688)). Ordinarily, an ineffective assistance of counsel claim cannot be resolved on direct appeal; there is, however, an exception “in those rare circumstances where the record is so clear that remand is unnecessary.” United States v. Soto, 132 F.3d 56, 59 (D.C.Cir.1997); see also United States v. Fennell, 53 F.3d 1296, 1303–04 (D.C.Cir.1995) (ineffective assistance of counsel claim may be decided on appeal “when the trial record alone conclusively shows that the defendant is entitled to no relief . . . [or] when the trial record conclusively shows the contrary”). On our review, the record conclusively shows that Rodriguez’s lawyer’s failure to reassert Rodriguez’s eligibility for safety-valve relief after Rodriguez truthfully debriefed constitutes ineffective assistance of counsel.

[The Safety-Valve]

As a threshold matter, it seems plain to us that Rodriguez met all five elements of the safety-valve provision by the time of the February 2010 sentencing hearing. The Government concedes that Rodriguez satisfied the first four criteria for safety-valve relief.

***

The fifth criterion requires that:

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. 18 U.S.C. § 3553(f)(5) (emphasis added).

According to the Government’s open-court admission during the November 17, 2009, hearing, Rodriguez eventually “came clean about all aspects of the transaction.

[Tardiness Is No Bar]

The fact that Rodriguez waited “until the last minute” to provide the information or that he was “tardy” in doing so does not preclude him from obtaining safety-valve relief. United States v. Tournier, 171 F.3d 645, 647 (8th Cir.1999). The provision does not distinguish “between defendants who provide the authorities only with truthful information and those who provide false information before finally telling the truth.” United States v. Schreiber, 191 F.3d 103, 106 (2d Cir.1999). It expressly states that a defendant must truthfully provide all information “not later than the time of the sentencing hearing.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). Nor does it matter whether the information provided is particularly useful.

[The Defendant’s Burden]

It is the defendant’s burden to establish safety-valve eli­gibility, see United States v. Mathis, 216 F.3d 18, 29 (D.C.Cir.2000) (defendant “bears the burden to establish by a preponderance of the evidence that he is entitled to safety[ ]valve relief”).

[Familiarity with the Law Applicable]

Familiarity with the Guideline is “‘a necessity for counsel who seek to give effective representation.’” United States v. Gaviria, 116 F.3d 1498, 1512 (D.C.Cir.1997) (per curiam) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir.1992)). When a lawyer fails to raise an applicable provision of the Guideline, he fails to provide effective assistance. Soto, 132 F.3d at 59 (“Whether lawyers get the Guideline wrong by misinterpreting the implication of a particular provision . . . or by failing altogether to raise a potentially helpful provision . . . such drastic missteps clearly satisfy Strickland ‘s first test: They amount to errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment” (internal quotation marks and citation omitted).)

[Probability of Success]

Moreover, given the applicability of the safety-valve provision, we believe there is at least a “reasonable probability” that, had Rodriguez’s lawyer raised it, Rodriguez would have received a lower sentence. Strickland, 466 U.S. at 694. Our sister circuits have held that once a defendant satisfies the five requirements, the “district court has no discretion to withhold its application,” United States v. Franco-Lopez, 312 F.3d 984, 994 (9th Cir.2002), and that the safety-valve provision is “mandatory,” United States v. Quirante, 486 F.3d 1273, 1275 (11th Cir.2007) (“The safety-valve provision . . . is not discretionary. Its plain terms are plainly mandatory.”).

[Conclusion]

For the foregoing reasons, we remand to the district court so that it can reconsider Rodriguez’s sentence in light of the applicability of the safety-valve provision set forth in 18 U.S.C. § 3553(f) and U.S.S.G § 5C1.2.

My Thoughts

  • Rodriguez’s lawyer just goofed. He simply failed to re-urge his safety-valve argument after his client had debriefed. What is painful to note is that he had recognized the issue to begin with but did not continue to assert his position. This was not a lawyer who was simply unprepared; yet, he got tagged for ineffective assistance of counsel.
  • Lawyers, on occasion, have tended to confuse U.S.S.G. § 5C1.2 (safety-valve provision) with U.S.S.G. § 5K1.1 (departure for substantial assistance). The information provided during a safety-valve debriefing does not have to “help the Government” as long as the information is timely and truthful.
TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

Previous Story

Said & Done

Next Story

Ethics and the Law: From Loco to Laredo

Latest from Columns