Using Facts in Safety Valve Proffer for Sentencing?

As the reader of this article may be aware, in federal sentencing, a federal judge is prohibited from enhancing a sentence based upon information defendant discloses in a safety valve proffer unless the information relates to a violent offense.

 

The natural question then becomes if the judge, after reading the proffer, does not reduce the sentence as much as defendant anticipated or hoped, is such a failure to reduce the sentence actually an illegal sentence increase based on the proffer?

This interesting argument arose in the case of Marques Donte Brown, who was arrested for smuggling drugs across the border from Mexico into the United States.  On December 8, 2019, he was caught driving into the United States with approximately 30.38 kilograms (67 pounds) of methamphetamine.  Brown had his wife and nine-year old stepson in the car with him.  Brown’s wife was originally charged as well, but charges were dropped when she told law enforcement she had no idea the drugs were in the car.

He ultimately pled guilty to one count of importing 500 grams or more of methamphetamine under 21 U.S.C. §§ 952 and 960.  His plea agreement preserved the right for him to appeal if he received a sentence “above the greater of 71 months or the statutory mandatory minimum term, if applicable.”

The federal Probation Department determined that Brown’s sentencing guidelines range was 108 to 135 months, however, the presentence report (“PSR”) conditionally recommended a sentence of 42 months if Brown was safety valve eligible. 

The Government found that Brown qualified for safety valve relief under U.S.S.G. (United States Sentencing Guidelines) § 5C1.2 and 18 U.S.C. § 3553(f).  While the Government agreed with probation on a sentencing range of 108 to 135 months, it recommended a sentence of 71 months. 

Brown’s attorney then submitted a sentencing brief wherein he recommended a sentence of 42 months.  Brown’s attorney emphasized his family support, his low-level role as a drug carrier, his age and his future prospects. 

 

The U.S. District Court judge agreed that Brown was safety valve eligible for a sentence below the mandatory minimum, but it disagreed with the parties on the extent to which Brown should receive a downward variance and sentenced Brown to 78 months in federal prison and five years of supervised release.  He also recommended that Brown take place in the Bureau of Prisons Residential Drug Abuse Program, which could further reduce his sentence to 68 months if he were to complete the program.

In sentencing Brown, the judge stated it would be a “disingenuous exercise” to sentence Brown to the 71 months requested by the Government given the fact that Brown had smuggled drugs in the past and that he had brought a child with him. 

Brown appealed the sentence to the U.S. Ninth Circuit Court of Appeals in Pasadena.  Brown argued that the judge improperly enhanced his sentence in violation of the First Step Act of 2018 (18 U.S.C. § 3553(f)) by using information from his proffer in sentencing him because the First Step Act prohibits a judge from using information “disclosed by defendant” in a safety valve proffer “to enhance the sentence of the defendant unless the information relates to a violent offense.” 

The U.S. Court of Appeals for the Ninth Circuit, in Pasadena, regarded this argument as audacious and simply unsound.  It first pointed out that the court imposed a sentence 30 months below the guidelines range and explained that “enhance” does not mean sentencing him to anything other than the lowest sentence proposed.  Moreover, it is not improper for a judge to consider information in a safety valve proffer, particularly Brown’s prior drug smuggling trips, the nine-year old being in the car, the amount and type of drug involved and the impact on the community.

The court of appeals thus denied the appeal and affirmed the sentence.  It noted that his failure to receive an additional reduction was not an improper enhancement.  Therefore, the district court did not abuse its discretion in sentencing him.

For more information about federal sentencing issues, please click on the following articles: