United States District Court, E.D. Virginia, Alexandria Division
For USA, Plaintiff: Michael Ben'Ary, LEAD ATTORNEY, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA.
MEMORANDUM OPINION AND ORDER
Gerald Bruce Lee, United States District Judge.
THIS MATTER is before the Court on Defendant Abederrahmane Aboulhorma's Motion for Downward Variance from the Sentencing Guidelines (" Motion for Downward Variance" ) (Doc. 68). This case arises from Defendant's guilty plea to one count of Conspiracy to Export Five Kilograms or more of Cocaine in violation of 21 U.S.C. § § 953, 963. The issue before the Court is whether the Government bears the burden of proving, beyond a reasonable doubt, that Defendant is ineligible for " safety-valve" relief under 18 U.S.C. § 3553(f)(5). The Court DENIES Defendant's Motion for Downward Variance because the Government does not bear the burden of proving that Defendant is ineligible for safety-valve relief as the granting or denial of the safety valve does not increase the statutory minimum or maximum sentence under Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
On June 18, 2014, Defendant Abederrahmane Aboulhorma plead guilty to one count of Conspiracy to Export Five Kilograms or more of Cocaine in violation of 21 U.S.C. § § 953, 963. Defendant argues that if the safety valve applied, his total offense level would be reduced by two points, lowering the applicable sentencing guidelines range. ( See Doc. 68 at 1.) Post- Booker, these guidelines are advisory and not mandatory. See Booker v. United States, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Defendant suggests that the Government cannot meet its burden of proving that the Defendant is ineligible for safety-valve relief. (Doc. 68 at 1.) Specifically, Defendant submits that its Motion for Downward Variance should be granted because the Government must affirmatively prove that Defendant was not truthful in providing the Government with all evidence and information Defendant has about the offense and related offenses. See 18 U.S.C. § 3553(f)(5). The Government disputes this, arguing that it is not required to affirmatively prove the Defendant's ineligibility for safety-valve relief. ( See Doc. 78.)
The Court DENIES Defendant's Motion for Downward Variance because the Government does not bear the burden of proving that Defendant is ineligible for safety-valve relief as the granting or denial of the safety valve under the United States Sentencing Commission Guidelines, see United States Sentencing Commission, Guidelines Manual § 5C1.2 (Nov. 2014), does not increase the statutory minimum or maximum sentence under Alleyne . First, in Alleyne v. United States the Supreme Court held that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), any fact that increases the mandatory minimum sentence is an " element" that must be submitted to the jury (and thus proven by the Government beyond a reasonable doubt). 133 S.Ct. 2151, 186 L.Ed.2d 314. Both Alleyne and Apprendi deal with facts affecting the minimum and maximum sentence prescribed by statute. Alleyne, 133 S.Ct. at 2161 (" It is indisputable that a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed . . . . Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment." (emphasis added)); Apprendi, 530 U.S. at 490 (concluding that " facts that increase the prescribed range of penalties to which a criminal defendant is
exposed" are elements of the crime (emphasis added)).
Second, " [w]hen applicable, the safety valve provision permits a district court to impose a shorter sentence for first-time offenders who otherwise would be subject to a mandatory minimum sentence." United States v. Henry, 673 F.3d 285, 292 (4th Cir. 2012) (citing 18 U.S.C. § 3553(f); United States v. Withers, 100 F.3d 1142, 1146 (4th Cir. 1996)). In order for the safety valve to apply a defendant must establish the following:
(1) he does not have more than one criminal history point; (2) he did not use or threaten violence or possess a firearm or other dangerous weapon; (3) the offense did not result in death or serious bodily injury; (4) he was not an organizer, leader, manager, or supervisor of others; and (5) he truthfully provided the government with all evidence and information about the offense and related offenses.
United States v. Aidoo, 670 F.3d 600, 605 (4th Cir. 2012) (emphasis added) (citing 18 U.S.C. § 3553(f)).
In the Fourth Circuit the " defendant bears the burden of 'prov[ing] that the prerequisites for application of the safety valve provision, including truthful disclosure, have been met." Aidoo, 670 F.3d at 605 (quoting United States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996)) (citing United States v. Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir. 2005) (en banc); United States v. Marquez, 280 F.3d 19, 23 (1st Cir. 2002); United States v. Gambino, 106 F.3d 1105, 1110 (2d Cir. 1997); United States v. Ramirez, 94 F.3d 1095, 1101 (7th Cir. 1996)). Furthermore, the Government " has no obligation to present evidence of the defendant's failure to satisfy ...