1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-30-1997

United States v. Sabir

Precedential or Non-Precedential:

Docket 96-5626

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Recommended Citation

"United States v. Sabir" (1997). 1997 Decisions. Paper 142.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/142
Filed 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 United States Court 

of Appeals for the Sixth Circuit, sitting by designation. 
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. § 841(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 responsibility 

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-level 

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 sentencing 

guidelines. Nevertheless, 21 U.S.C. § 841(b)(1)(B) 

established a mandatory minimum sentence of five years 

for the offense so that ordinarily the sentencing range 

would not have been material to his sentence. 

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Sabir, however, urged at his sentencing that the court 

should sentence him under the guidelines without regard 

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, § 80001, 

108 Stat. 1796, 1985-86. The safety valve provisions have 

been incorporated verbatim into the sentencing guidelines 

as U.S.S.G. § 5C1.2, but as a matter of convenience we will 

refer only to the statutory citations. The safety valve 

provisions establish that a defendant shall be sentenced 

pursuant to the sentencing guidelines without regard to 

any statutory minimum sentence in certain drug offense 

cases in the event that the following five conditions are met: 

(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. 

18 U.S.C. § 3553(f). Not surprisingly, most of the disputes 

in the reported cases involving the safety valve provisions 

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

3553(f)(5)"), which requires the defendant truthfully to 

provide certain information to the government. The 

government does not claim that Sabir's offense could not 

qualify for disposition under the safety value provisions 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 sentencing 

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. Therefore 

he's not entitled to the benefit of either the safety valve 

or the resulting two level downward adjustment.1 

Supp. app. at 15-16. Thus, the court sentenced Sabir to 60 

months in prison followed by a four-year term of supervised 

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 district court meant when 

it indicated that Sabir was not entitled to the benefit of "the resulting 

two level downward adjustment." The safety valve provisions do not 

provide for a downward adjustment in the offense level but the court did 

allow Sabir a 2-level downward adjustment in his offense 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 in the criminal activity. 

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of responsibility, it is contradictory to say that he 

minimized his role." Br. at 9. Thus, in his view, the court's 

finding that he accepted responsibility should entitle him to 

the benefit of the safety valve provisions, but the court 

denied him that advantage because it found he minimized 

his role in the offense. Second, he contends that he 

complied with section 3553(f)(5) which required him to 

provide the government with "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." We exercise plenary review over Sabir's first 

contention as we regard it as raising a legal question, but 

we can reject the court's findings that Sabir did not provide 

the information and evidence only if we conclude that 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 offense level 

on the basis of the defendant's acceptance of responsibility: 

(a) If the defendant clearly demonstrates acceptance 

of responsibility for his offense, decrease the offense 

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 to 

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 entitled to 

a 2- or 3-level reduction in his offense level by reason of 

acceptance of responsibility will be entitled to the benefit of 

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

sentenced under the guidelines without regard for any 

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. Arrington, 73 

F.3d 144 (7th Cir. 1996), the district court determined that 

the defendant was not entitled to the benefit of the safety 

valve provisions because he did not satisfy section

3553(f)(5), even though the court allowed him a 2-level 

reduction in his offense level under section 3E1.1(a) for 

acceptance of responsibility and a 1-level reduction under 

section 3E1.1(b)(2) for entering a timely plea of guilty. On 

appeal the defendant argued "that it is inconsistent to hold 

that he truthfully admitted his offense conduct under 

§ 3E1.1(a) but did not truthfully provide all the information 

concerning his offense under § 3553(f)(5)." Arrington, 73 

F.3d at 149. The Court of Appeals for the Seventh Circuit 

rejected that contention: 

We agree with the district court that the admission of 

responsibility necessary to obtain a reduction under 

§ 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 . . . concerning the 

offense or offenses that were part of the same course 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 distinction 

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 volunteer 

any information aside from the conduct comprising the 

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 facts 

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. 

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Arrington 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 prescribed 

mandatory minimum. The requirement of U.S.S.G. 

§ 5C1.2 that a defendant provide 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' 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 defendant is 

not required to volunteer, or affirmatively admit, 

relevant conduct beyond the offense of conviction in 

order to obtain a two-level reduction. To qualify under 

§ 5C1.2, however, a defendant must truthfully provide 

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 qualified 

for a two-level acceptance of responsibility reduction 

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) requires 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 defendant has 

satisfied the requirements of section 3553(f)(5). Section 

3553(f) and section 3E1.1 are not coterminus. For example, 

whereas section 3E1.1 focuses on the defendant's 

acceptance of individual responsibility, section 3553(f) 

requires the defendant to reveal a broader scope of

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information about the relevant criminal conduct to the 

authorities. 

However, we find questionable the language in Adu

describing the requirements of section 3553(f)(5) as"greater 

than the requirement for an acceptance of responsibility 

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 section 

3553(f)(5) and section 3E1.1. After all, the safety valve and 

acceptance of responsibility provisions have different 

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 eligible for relief 

under section 3553(f)); United States v. Acosta-Olivas, 71 

F.3d 375, 379 (10th Cir. 1995) (emphasizing differences 

between section 3553(f)(5) and section 3E1.1). Indeed, the 

Court of Appeals for the Seventh Circuit recently has 

clarified that Arrington did not hold that a finding that the 

safety valve provisions of section 3553(f) apply also 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) reduction. 

Section 5C1.2(5) in one respect demands more of an effort 

from the defendant than § 3E1.1(a) . . . but in other 

respects may demand less."). Consequently, we do not hold 

that a defendant entitled to the benefit of the safety valve 

provisions necessarily is entitled to a reduction in 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 to a 

reduction of his offense level by reason of his acceptance of 

responsibility does not establish that he has satisfied the 

requirements of section 3553(f)(5). 

We also reject Sabir's contention that he was entitled to 

the benefit of the safety valve provisions because he in fact 

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

burden to show by a preponderance of the evidence that 

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 minimized 

his role in the offense and to the day of the sentencing 

failed to give a "full forthright account of his activities either 

to the Probation Department or to the government." This 

finding was not clearly erroneous. In the circumstances, we 

hold, exercising plenary review, that Sabir did not

"truthfully provide[ ] to the Government all information and 

evidence" he had concerning the offense. After all, he surely 

knew his own role in the offense, yet he did not disclose 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 specific nature 

of the court's finding that Sabir minimized his role 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 than 

leading to an application of the safety valve provisions, 

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 government 

has not challenged the court's allowance of the downward 

adjustment of the offense level.2 

_________________________________________________________________ 

2. Actually, Sabir may have been treated more leniently than the facts 

warranted when the court sentenced him to a 60-month custodial term. 

Denial of a 2-level decrease in his offense level under section 3E1.1(a) 

also would have denied him the 1-level decrease under section 3E1.1(b), 

thus leading to a total offense level of 26 and a guidelines range of 63 

to 78 months. 

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III. CONCLUSION 

In view of the aforesaid, we will affirm the judgment 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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