Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. MCCOY

May 22, 2001

UNITED STATES OF AMERICA
V.
JAMES RUFUS MCCOY, JR.



The opinion of the court was delivered by: Dalzell, J.

MEMORANDUM

The sentencing hearing we conducted this day involved a technical but important question of the Sentencing Guidelines' application that our Court of Appeals has yet to address. Specifically, the question has to do with the interplay of the so-called safety valve of U.S.S.G. § 5C1.2 with the "specific offense characteristics" provisions of U.S.S.G. § 2D1.1(b)(6). As will be seen, this issue is quite consequential to this defendant, who turns sixty-one in eight days.

James Rufus McCoy on January 5, 2001 pleaded guilty to Count 3 of the Indictment, which charged him with manufacture of cocaine base in a school zone, in violation of 21 U.S.C. § 860. According to the Probation Office's calculation in the Presentence Investigation Report ("PSI"), pursuant to U.S.S.G. § 2D1.2, the base offense level for McCoy is 30, which is predicated on the 22.85 grams of crack that McCoy cooked, plus 2 levels for cooking the cocaine at a location within 1,000 feet of a public school (PSI ¶ 21). Pursuant to U.S.S.G. § 3E1.1, McCoy receives a three level reduction for his timely expression of acceptance of responsibility. Lastly, the Probation Officer applies U.S.S.G. § 2D1.1(b)(6) because McCoy meets the five criteria set forth in U.S.S.G. § 5C1.2, thereby decreasing his total offense level by two levels (see PSI ¶ 22).

The Government takes issues with this last step. Specifically, it contends that no aspect of the "safety valve" provided by § 5C1.2 should apply, and that therefore the proper total offense level should be 27, with a range of 70-87 months, rather than the 60-71 month range the Probation Officer calculated (as supplemented by the application of the mandatory minimum under 21 U.S.C. § 860). See PSI ¶¶ 69-70.

For the reasons that follow, we overrule the Government's objections to the Probation Officer's calculation.

Application of § 2D1.1(b)(6)

United State Sentencing Guideline § 2D1.1(b)(6), which falls under the "specific offense characteristics" section for drug offenses, states that "[i]f the defendant meets the criteria set forth in subdivisions (1)-(5) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) and the offense level determined above is level 26 or greater, decrease by 2 levels." In turn, U.S.S.G. § 5C1.2 states:

In the case of an offense under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(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, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; 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.

The Government does not dispute that McCoy meets these five characteristics. The Government maintains, however, that because McCoy pleaded guilty to a violation of 21 U.S.C. § 860, he is not eligible for the 2 level reduction in § 2D1.1(b)(6), since § 860 is not one of the offenses listed in the first paragraph of § 5C1.2. The Probation Office responds that although McCoy would not be eligible for a § 5C1.2 "safety valve", this is analytically distinct from his eligibility under § ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.