Second Criterion of § 5C1.2
The Court found that a defendant is not precluded from
meeting the second prong simply because a §2D1.1(b)(1) firearm enhancement
was applied. Also, the Sixth Circuit
joined seven other circuits in finding that possession of a firearm by a
co-conspirator does not always render a defendant ineligible for relief under the
second criterion. (See U.S.S.G. §5C1.2).
The Court held that the language for the safety valve application (U.S.S.G
§
5C1.2(a)(2)) limits consideration to the defendant’s own actions;
whereas the firearm enhancement under U.S.S.G. § 2D1.1(b) omits any reference to the defendant and uses
a passive voice – requiring enhancement if the firearm was “possessed.” Allowing
a defendant to be charged with possession of another’s gun is contrary to
congressional policy for safety valve application, which is “to permit courts
to sentence less culpable defendants to sentences under the guidelines, instead
of imposing mandatory minimum sentences.”
However, if the defendant induced
another co-conspirator to possess a firearm, the application does not apply. (See
U.S.S.G. §
5C1.2 cmt. n.4). Fifth Criterion of § 5C1.2
To meet this fifth prong, a defendant may have to do more than merely
answer all questions posed by the government, because the “provision ‘clearly
require[s] an affirmative act by the defendant truthfully disclosing all the
information he possesses concerning his offense or related offenses.’” However, the information does not have to be
helpful to the government since “the individuals for whom the safety valve was
directed will not have useful testimony to provide because of their relatively
low position in the criminal enterprise.”
The government may challenge whether a defendant has met
this criterion by pointing out inconsistencies or implausibility. Yet, “the
government’s lack of confidence in a proffer is insufficient, in and of itself,
to justify a denial of access to the safety valve.” Further, a sentencing court
may not find a defendant was not truthful ‘solely on speculation, devoid of any
factual support.”
This is an excellent opinion to thoroughly read if defense
counsel is litigating an issue concerning whether § 5C1.2 applies. Additionally, the Sixth Circuit briefly
discussed the significant risk for jury confusion when a law enforcement
officer testifies at trial as a fact witness and expert witness in the same
case.