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United States of America v. Kyle Ishmael

March 16, 2011

UNITED STATES OF AMERICA
v.
KYLE ISHMAEL



The opinion of the court was delivered by: J. Rambo

MEMORANDUM

I. Introduction

Presently before the court is the issue of whether Defendant, Kyle Ishmael, is entitled to the safety valve provisions of U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). By way of background, Defendant was indicted by a federal grand jury on December 2, 2009. He and eight other individuals were charged with conspiracy to possess with intent to distribute 50 grams or more of cocaine base and cocaine in violation of 21 U.S.C. § 846. On October 12, 2010, Defendant entered a guilty plea to a superseding information that charged him with distribution of five grams or more of cocaine base in violation of 21 U.S.C. § 841.

On December 10, 2010, the probation office prepared a presentence report ("PSR"). The PSR found that Defendant was subject to the five-year mandatory sentence under 21 U.S.C. § 841 and did not recommend application of the safety valve under U.S.S.G. § 5C1.2. On February 2, 2011, Defendant filed a written objection to the PSR objecting to, inter alia, the failure to recommend the safety valve. On February 7, 2011, the probation office filed an addendum to the PSR indicating that Defendant was not eligible for the safety valve because he "did not provide truthful information to investigators" in violation of U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f)(5). On February 18, 2011, Defendant filed a motion to compel disclosure of the specific factual basis for the Government's contention that Defendant failed to provide truthful information. On March 7, 2011, the Government responded arguing that, pursuant to relevant caselaw, the Government is not required to disclose its evidence prior to a hearing. The Government argues that disclosure would provide Defendant with a roadmap of what the Government expects Defendant to say, which is inconsistent with the requirement that Defendant truthfully provide the Government with all information. On March 9, 2011, the court held an evidentiary hearing to address these issues and take evidence regarding the applicability of the safety valve. At the hearing, Defendant requested that the court apply the safety valve during sentencing. For the reasons that follow, the court will deny Defendant's request for application of the safety valve and Defendant's motion to compel is denied as moot.

II. Standard

Congress enacted the safety valve provision, 18 U.S.C. § 3553 (f), in order to mitigate the harsh effect of mandatory minimum sentences on certain first-time offenders. See United States v. Miranda-Santiago, 96 F.3d 517, 527 & n.22 (1st Cir. 1996) (citing H.R. Rep. No. 103-460, at 4 (1994)); United States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000). The Sentencing Commission then incorporated the statutory text verbatim into the Sentencing Guidelines. See U.S.S.G. § 5C1.2. When applicable, these provisions mandate both a reduction of the defendant's offense level and judicial disregard of mandatory minimum sentences. The safety valve is applicable if:

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 . . . .

18 U.S.C. § 3553 (f); U.S.S.G. § 5C1.2.

Defendant bears the burden of showing his entitlement to application of the safety valve. See United States v. Acosta, 283 F. App'x 899, 905 (3d Cir. 2008); United States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000). Thus, the initial burden of proof "is incontestably on the defendant to demonstrate by a preponderance of evidence that he is eligible for the reduction." United States v. Shrestha, 86 F.3d 935, 940 (9th Cir. 1996); see also United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996) ("It is up to the defendant to persuade the district court that he has 'truthfully provided' the required information and evidence to the Government.").

The court's determination is fact-specific, one which depends on credibility determinations. The court must provide more than "bare conclusions" for support of its determination. United States v. Ventura-Cruel, 133 F. Supp. 2d 138, 142 (D. P.R. 2001). "Absent either specific factual findings or easily recognizable support in the record," the safety ...


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