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. e du/thir dc ir c uit_1997/142Filed June 30, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5626

UNITED STATES OF AMERICA

v.

FAHIM SABIR, a/k/a Salah Rasool

Fahim Sabir, Appellant

On Appeal from the United States District Court for the District of New Jersey (D.C. Crim. No. 92-00659-3)

Submitted under Third Circuit LAR 34.1(a) June 23, 1997

BEFORE: GREENBERG, MCKEE, and WELLFORD,* Circuit Judges

(Filed: June 30, 1997)

___________________________________________________ ______________ *Honorable Harry W. Wellford, Senior Judge of the U nited States Court of Appeals for the Sixth Circuit, sitting by design ation.Kevin McNulty

Assistant U.S. Attorney Elizabeth S. Ferguson Assistant U.S. Attorney Faith S. Hochberg United States Attorney
970 Broad Street
Room 502 Newark, NJ 07102

Attorneys for Appellee

James J. Plaia 10 South Prospect Street Verona, NJ 07044

Attorney for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge

.

I. INTRODUCTION

This case comes before this court on Fahim Sabir's appeal from the sentence the district court imposed on him after he pleaded guilty to conspiracy to distribute more than 100 grams of heroin contrary to 21 U.S.C. § 84 1(a)(1), in violation of 21 U.S.C. § 846. Sabir entered the plea pursuant to a plea agreement which stipulated that he had demonstrated affirmative acceptance of responsibili ty entitling him to a 3-level decrease in his offense level pursuant to U.S.S.G. § 3E1.1 ("section 3E1.1"). At the sentencing, after the court awarded Sabir the 3-lev el decrease, it calculated his total offense level at 23 which, when applied to his criminal history category of I, yielded a sentencing range of 46 to 57 months under the sente ncing guidelines. Nevertheless, 21 U.S.C. § 841(b)(1)(B) established a mandatory minimum sentence of five ye ars for the offense so that ordinarily the sentencing r ange would not have been material to his sentence.

2Sabir, however, urged at his sentencing that the co urt

should sentence him under the guidelines without re gard for the statutory minimum sentence, pursuant to the safety valve provisions in 18 U.S.C. § 3553(f), adopted in 1994 as a portion of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 800 01, 108 Stat. 1796, 1985-86. The safety valve provision s have been incorporated verbatim into the sentencing guid elines as U.S.S.G. § 5C1.2, but as a matter of convenience we will refer only to the statutory citations. The safety v alve provisions establish that a defendant shall be sent enced pursuant to the sentencing guidelines without regar d to any statutory minimum sentence in certain drug offe nse cases in the event that the following five conditio ns are met:

(1) the defendant does not have more than 1 crimina l 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 heari ng, the defendant has truthfully provided to the
Government all information and evidence the defenda nt has concerning the offense or offenses that were pa rt of
the same course of conduct or of a common scheme or plan, but the fact that the defendant has no releva nt or useful other information to provide or that the Government is already aware of the information shal l not preclude a determination by the court that the defendant has complied with this requirement.

18 U.S.C. § 3553(f). Not surprisingly, most of the disputes in the reported cases involving the safety valve pr ovisions

3center on the fifth condition, 18 U.S.C. § 3553(f)( 5) ("section

3553(f)(5)"), which requires the defendant truthful ly to provide certain information to the government. The government does not claim that Sabir's offense coul d not qualify for disposition under the safety value prov isions if the five statutory conditions are satisfied.

The district court rejected Sabir's claim that the safety valve provisions were applicable:

The final criteria is that not later than the time of the sentencing hearing the defendant has truthfully provided to the government all information and evidence he has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.

Defendant does not meet this criteria. According to the government the defendant gave two proffers, and in each he minimized his role. To this day of sentenci ng he continues to minimize his role and fails to give a full forthright account of his activities either to the Probation Department or to the government. Therefor e he's not entitled to the benefit of either the safe ty valve or the resulting two level downward adjustment.1

Supp. app. at 15-16. Thus, the court sentenced Sabi r to 60 months in prison followed by a four-year term of su pervised release. In addition, the court fined Sabir $2,500. Sabir then appealed.

II. DISCUSSION

On this appeal Sabir makes two contentions. First, he contends "that if one is sufficiently candid to get acceptance

___________________________________________________ ______________

1. We are not completely clear as to what the distr ict court meant when
it indicated that Sabir was not entitled to the ben efit of "the resulting two level downward adjustment." The safety valve pr ovisions do not provide for a downward adjustment in the offense le vel but the court did allow Sabir a 2-level downward adjustment in his of fense level for acceptance of responsibility under section 3E1.1(a) . Probably the court was referring to the fact that at the sentencing it already had denied
Sabir a 2-level decrease in his offense level which Sabir sought under U.S.S.G. § 3B1.2(b) for being a minor participant i n the criminal activity.

4of responsibility, it is contradictory to say that he

minimized his role." Br. at 9. Thus, in his view, t he court's finding that he accepted responsibility should enti tle him to the benefit of the safety valve provisions, but the court denied him that advantage because it found he minim ized his role in the offense. Second, he contends that h e complied with section 3553(f)(5) which required him to provide the government with "all information and ev idence [he] has concerning the offense or offenses that we re part of
the same course of conduct or of a common scheme or plan." We exercise plenary review over Sabir's firs t contention as we regard it as raising a legal quest ion, but we can reject the court's findings that Sabir did n ot provide the information and evidence only if we conclude th at the findings were clearly erroneous. See United States v. Wilson , 106 F.3d 1140, 1142-43 (3d Cir. 1997).

Section 3E1.1 provides for a decrease in the offens e level on the basis of the defendant's acceptance of respo nsibility:

(a) If the defendant clearly demonstrates acceptanc e of responsibility for his offense, decrease the off ense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and
the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps:

(1) timely providing complete information to the government concerning his own involvement in the offense; or

(2) timely notifying authorities of his intention t o enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently,

decrease the offense level by 1 additional level.

We do not doubt that frequently a defendant entitle d to a 2- or 3-level reduction in his offense level by r eason of acceptance of responsibility will be entitled to th e benefit of

5the safety valve provisions as well so that he or s he will be

sentenced under the guidelines without regard for a ny statutory minimum sentence. Yet the acceptance of responsibility provisions in the guidelines plainly do not subsume all of a defendant's responsibilities under the safety valve provisions. In United States v. Arring ton , 73 F.3d 144 (7th Cir. 1996), the district court determ ined that
the defendant was not entitled to the benefit of th e safety valve provisions because he did not satisfy section 3553(f)(5), even though the court allowed him a 2-l evel reduction in his offense level under section 3E1.1( a) for acceptance of responsibility and a 1-level reductio n under section 3E1.1(b)(2) for entering a timely plea of g uilty. On appeal the defendant argued "that it is inconsisten t to hold that he truthfully admitted his offense conduct und er § 3E1.1(a) but did not truthfully provide all the i nformation concerning his offense under § 3553(f)(5)." Arringt on , 73 F.3d at 149. The Court of Appeals for the Seventh C ircuit rejected that contention:

We agree with the district court that the admission of responsibility necessary to obtain a reduction unde r § 3E1.1(a) is not necessarily sufficient to satisfy § 3553(f)(5). Section 3553(f)(5) requires more cooperation than § 3E1.1(a): § 3553(f)(5) requires the defendant to provide `all information . . . concern ing the offense or offenses that were part of the same cour se of conduct or of a common scheme or plan,' whereas § 3E1.1(a) requires that he admit `the conduct comprising the offense(s) of conviction.' The disti nction between the two is not insignificant. Although § 3E1.1(a) forbids a defendant from falsely denying relevant conduct, see U.S.S.G. § 3E1.1, comment. (n.1(a)), it imposes no duty on a defendant to volu nteer any information aside from the conduct comprising t he
elements of the offense. Id. In contrast, § 3553(f) states
that a defendant must disclose `all information' concerning the course of conduct--not simply the fa cts that form the basis for the criminal charge. Accordingly, the district court correctly held that § 3553(f)(5) requires more than § 3E1.1(a).

Arrington , 73 F.3d at 149.

6Arrington does not stand alone in the foregoing holding.

In United States v. Adu , 82 F.3d 119 (6th Cir. 1996), the Court of Appeals for the Sixth Circuit rejected an argument similar to that the appellant advanced in Arrington , holding
as follows:

The defendant did not carry his burden of proving that he was eligible for sentencing below the presc ribed mandatory minimum. The requirement of U.S.S.G. § 5C1.2 that a defendant provide the government `al l
information and evidence the defendant has concerni ng the offense or offenses that were part of the same course of conduct or of a common scheme or plan' is greater than the requirement for an acceptance of responsibility reduction under U.S.S.G. § 3E1.1. Application Note 1 to § 3E1.1 states that a defenda nt is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction i n order to obtain a two-level reduction. To qualify u nder § 5C1.2, however, a defendant must truthfully provi de all information he has concerning the offense of
conviction and all relevant conduct. United States v. Long , 77 F.3d 1060 (8th Cir. 1996); Application Note 3 to § 5C1.2. Thus, the fact that the defendant quali fied for a two-level acceptance of responsibility reduct ion under § 3E1.1 does not establish eligibility for a safety valve reduction under § 5C1.2. United States v. Arrington , 73 F.3d 144, 149 (7th Cir. 1996).

Adu , 82 F.3d at 124. See also United States v. Ivester , 75 F.3d 182, 184 (4th Cir.) ("Section 3553(f)(5) requi res more than accepting responsibility for one's own acts.") , cert

. denied , 116 S.Ct. 2537 (1996).

We agree with the holdings in Arrington and Adu that the
mere fact that a defendant is entitled to a 2- or 3 -level reduction in his offense level for acceptance of responsibility does not establish that the defendan t has satisfied the requirements of section 3553(f)(5). S ection 3553(f) and section 3E1.1 are not coterminus. For e xample,
whereas section 3E1.1 focuses on the defendant's acceptance of individual responsibility, section 35 53(f) requires the defendant to reveal a broader scope of

7information about the relevant criminal conduct to the

authorities.

However, we find questionable the language in Adu describing the requirements of section 3553(f)(5) a s"greater than the requirement for an acceptance of responsib ility reduction under U.S.S.G. § 3E1.1." Adu , 82 F.3d 124. Our questioning of Adu is based on the potential implications of the word "greater" on the relationship between sect ion 3553(f)(5) and section 3E1.1. After all, the safety valve and acceptance of responsibility provisions have differ ent elements, so that the acceptance of responsibility provision is not a lesser-included requirement of the safety valve provisions. See United States v. Shrestha , 86 F.3d 935, 939-40 (9th Cir. 1996) (holding that defendant need not satisfy requirements of section 3E1.1 to be eligibl e for relief under section 3553(f)); United States v. Acosta-Oli vas , 71 F.3d 375, 379 (10th Cir. 1995) (emphasizing differe nces between section 3553(f)(5) and section 3E1.1). Inde ed, the Court of Appeals for the Seventh Circuit recently h as clarified that Arrington did not hold that a finding that the safety valve provisions of section 3553(f) apply al so means the defendant has complied with the acceptance of responsibility provisions of section 3E.1.1. United States v.
Webb , 110 F.3d 444, 447 (7th Cir. 1997) ("Arrington does not imply that every defendant who receives a § 5C1 .2 (or a § 3553(f)) reduction must receive a § 3E1.1(a) redu ction. Section 5C1.2(5) in one respect demands more of an effort from the defendant than § 3E1.1(a) . . . but in oth er respects may demand less."). Consequently, we do no t hold
that a defendant entitled to the benefit of the saf ety valve provisions necessarily is entitled to a reduction i n his or her offense level for acceptance of responsibilty. Indeed, that issue is not even before us. Yet our possible disagreement with Adu on this issue does not undermine the usefulness of that case on the point for which we cite it, i.e. , that the mere fact that a defendant is entitled t o a reduction of his offense level by reason of his acc eptance of responsibility does not establish that he has satis fied the requirements of section 3553(f)(5).

We also reject Sabir's contention that he was entit led to the benefit of the safety valve provisions because he in fact

8complied with section 3553(f)(5). Sabir, of course, had the

burden to show by a preponderance of the evidence t hat the safety valve provisions were applicable to his case. See
United States v. Ramirez , 94 F.3d 1095, 1100-02 (7th Cir. 1996). The district court pointed out that Sabir mi nimized his role in the offense and to the day of the sente ncing failed to give a "full forthright account of his ac tivities either to the Probation Department or to the government." This finding was not clearly erroneous. In the circumsta nces, we hold, exercising plenary review, that Sabir did not "truthfully provide[ ] to the Government all inform ation and evidence" he had concerning the offense. After all, he surely knew his own role in the offense, yet he did not di sclose it completely.

In rejecting Sabir's second contention, we have not lost sight of his argument that he cannot have minimized his role in the offense, as the court found that he had accepted responsibility and thus was entitled to the 2-level decrease in his offense level under section 3E1.1(a). While there is a certain logic in this argument, in view of the spec ific nature of the court's finding that Sabir minimized his rol e in the offense, acceptance of the argument that the court' s findings under section 3E1.1(a) and section 3553(f) (5) were inconsistent so that both could not stand, rather t han leading to an application of the safety valve provi sions, would lead to a denial of a downward adjustment in his offense level for acceptance of responsibility. We, however, will not consider that possibility further as the g overnment has not challenged the court's allowance of the dow nward adjustment of the offense level.2

___________________________________________________ ______________

2. Actually, Sabir may have been treated more lenie ntly than the facts
warranted when the court sentenced him to a 60-mont h custodial term.
Denial of a 2-level decrease in his offense level u nder section 3E1.1(a)
also would have denied him the 1-level decrease und er section 3E1.1(b), thus leading to a total offense level of 26 and a g uidelines range of 63
to 78 months.

9III. CONCLUSION

In view of the aforesaid, we will affirm the judgme nt of conviction and sentence of September 4, 1996.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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