PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 94-5866

SIDNEY WAYNE IVESTER,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-94-138)

Argued: November 3, 1995

Decided: February 15, 1996

Before RUSSELL and HALL, Circuit Judges, and MICHAEL,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Russell wrote the majority
opinion, in which Senior Judge Michael joined. Judge Hall wrote a
dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Charles Jackson Alexander, II, MORROW, ALEXAN-
DER, TASH & LONG, Winston-Salem, North Carolina, for Appel-
lant. David Bernard Smith, Assistant United States Attorney/Senior
Litigation Counsel, Greensboro, North Carolina, for Appellee. ON
BRIEF: Walter C. Holton, Jr., United States Attorney, Greensboro,
North Carolina, for Appellee.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

Sidney Wayne Ivester appeals the district court's order sentencing
him to a statutorily-mandated term of five years imprisonment for his
role in a conspiracy to manufacture marijuana. Ivester contends the
district court erred in failing to accord him a downward departure
from the statutorily-mandated minimum sentence in accordance with
a recent amendment to the sentencing statute, 18 U.S.C. § 3553. For
the following reasons, we affirm Ivester's sentence.

I.

On September 13, 1994, Congress enacted the Violent Crime Con-
trol and Law Enforcement Act of 1994. Pub. L. No. 103-322, 108
Stat. 1796 (1994). As part of this Act, Congress created a "safety
valve" provision that limits application of statutorily-mandated mini-
mum sentences to the more serious drug offenders. Id. at § 80001(a)
(codified at 18 U.S.C. § 3553(f)). The safety valve provision enables
a court faced with certain non-violent drug offenders to forgo apply-
ing the mandatory minimum sentence in favor of a lesser sentence
under the sentencing guidelines. However, to obtain the benefit of
§ 3553(f), a defendant must, inter alia , provide truthful information
to the Government concerning the crime.

Ivester pled guilty to one count of conspiring to manufacture in
excess of 100 kilograms of marijuana in violation of 21 U.S.C.
§§ 846, 841(a)(1). Because of the amount of marijuana involved,
Ivester faced a five-year statutorily-mandated minimum sentence. See
21 U.S.C. § 841(b)(1)(B). Ivester sought a§ 3553(f) downward
departure from the statutorily-mandated minimum sentence. Finding
that Ivester had failed to provide the Government with any truthful
information concerning his crime, the district court denied Ivester a
downward departure and imposed the five-year minimum sentence.

                    2
Ivester contends he is entitled to the departure in any event because
he would have provided truthful information to the Government had
it asked for any.

II.

It is now well-settled that the discretionary denial of a request for
a downward departure from the sentencing guidelines is generally not
subject to appellate review. See United States v. Underwood, 970 F.2d
1336, 1338 (4th Cir. 1992); United States v. Bayerle, 898 F.2d 28, 30
(4th Cir.), cert. denied, 498 U.S. 819 (1990). Although this principle
of non-review is true, we assume, without deciding, that it is inappli-
cable here because § 3553(f) provides relief from statutorily-
mandated sentences rather than those mandated by the sentencing
guidelines.

Even if the principle of non-review applies to § 3553(f) departures,
we recognize an exception where the district court's denial was prem-
ised on a mistaken belief that it lacked authority to depart downward.
Bayerle, 898 F.2d at 31. In this limited circumstance, 18 U.S.C.
§ 3742(a)(1) provides appellate jurisdiction because the claim is
essentially one for review of a sentence allegedly"imposed in viola-
tion of law." Id. Ivester's claim would fall within this exception
because he contends the district court's denial of his downward depar-
ture motion was premised on an erroneous construction of § 3553(f).
According to Ivester, the district court denied his motion because
under its construction of § 3553(f), it did not believe it had authority
to depart. We therefore turn to the merits of Ivester's claim.

Ivester raises an issue of statutory construction that is of first
impression in this court, and one that has not been decided by any
other circuit: whether pursuant to § 3553(f), defendants are required
to affirmatively act to inform the Government of their crimes, or
whether it is sufficient that they are willing to be completely truthful
although the Government never attempts to obtain the information.
We begin this task of statutory construction by examining the lan-
guage of the statute. If that language is plain and unambiguous, our
inquiry must cease and we are duty bound to give effect to that lan-
guage. Robinson v. Shell Oil Co., 70 F.3d 325, 328-29 (4th Cir. 1995).

                    3
As recently amended, § 3553 provides some relief from statutorily-
mandated minimum sentences where:

          (1) the defendant does not have more than one 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 . . . 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,
          supervisor of others in the offense, as determined
          under the sentencing guidelines and was not engaged
          in a continuing criminal enterprise, as defined at 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 con-
          cerning 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 Govern-
          ment is already aware of the information shall not pre-
          clude a determination by the court that the defendant
          has complied with this requirement.

18 U.S.C. § 3553(f). Both parties agree that Ivester met the first four
requirements of § 3553(f). At issue is whether Ivester complied with
the final requirement that he provide truthful information to the Gov-
ernment about the conspiracy. Section 3553(f)(5) requires more than
accepting responsibility for one's own acts; rather, satisfaction of
§ 3553(f)(5) requires a defendant to disclose all he knows concerning
both his involvement and that of any co-conspirators. United States
v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995).

                    4
In the instant case, the Government sought no information from
Ivester, and Ivester did not volunteer any information about the con-
spiracy. The record reveals that Ivester was one of the final conspira-
tors to be indicted. Accordingly, the Government no longer needed
additional information about the crime. But, because a defendant can-
not be denied § 3553(f) relief merely because of the uselessness of the
information to the Government, Ivester contends the court erred in
denying his motion on this basis.

Ivester is correct that the district court could not deny him relief
merely because the Government had no use for the information. How-
ever, regardless of the information's utility to the Government,
§ 3553(f)(5) requires a defendant to "truthfully provide to the
Government all information . . . concerning the offense." 18 U.S.C.
§ 3553(f)(5) (emphasis added). We believe this plain and unambigu-
ous language obligates defendants to demonstrate, through affirmative
conduct, that they have supplied truthful information to the Govern-
ment. Although this specific issue has not been addressed by any
other circuit, our construction of § 3553(f)(5) is consistent with dicta
from the few courts that have analyzed the provision. See United
States v. Acosta-Olivas, 71 F.3d at 379 (to obtain a reduction of sen-
tence under § 3553(f), defendant may come forward and furnish all
available information); United States v. Rodriguez, 69 F.3d 136, 143
(7th Cir. 1995) (where defendant did not know any further informa-
tion, defendant had burden of communicating that fact to the govern-
ment to qualify for reduction); United States v. Wren, 66 F.3d 1, 3
(1st Cir. 1995) (§ 3553(f)(5) contemplates an affirmative act of coop-
eration with the government no later than the time of the sentencing
hearing).

Ivester contends nonetheless that § 3553(f)(5) should be construed
to place on the Government the onus of seeking out defendants for
debriefing. However, such a construction is not supported by
§ 3553(f)(5)'s plain language, and it would lead to an absurd result.
Under Ivester's proffered construction, those defendants facing
statutorily-mandated minimum sentences for drug convictions who
were not approached and debriefed by the Government could qualify
for the reduction even though they never provided the Government
with any information. Ivester's construction of§ 3553(f)(5) would
essentially obviate the requirement that defendants"provide" informa-

                    5
tion. We refuse to read a statute in such a way as to nullify its terms.
See In re Application of the United States, 563 F.2d 637, 642 (4th Cir.
1977).

Finally, Ivester contends that our construction of § 3553(f)(5) is
illogical because it requires defendants to become government infor-
mants and, as such, renders redundant substantial assistance depar-
tures under § 3553(e) or its companion sentencing guidelines
provision, U.S.S.G. § 5K1.1. Ivester notes that "substantial assis-
tance" typically entails some level of affirmative conduct on the
defendant's part that exceeds merely demonstrating a willingness to
cooperate and answer questions. Hence, Ivester contends, it is irratio-
nal to construe § 3553(f) as permitting a departure under the identical
circumstances as § 3553(e) or U.S.S.G. § 5K1.1.

Ivester correctly notes that we are reluctant to interpret statutory
provisions so as to render superfluous other provisions within the
same enactment. See Freytag v. Commissioner of Internal Revenue,
501 U.S. 868, 877 (1991) (citing Pennsylvania Dept. of Public Wel-
fare v. Davenport, 495 U.S. 552, 562 (1990)). However, we do not
believe our construction has such an effect. We agree instead with
those courts previously addressing the similarity between the two pro-
visions that § 3553(f) departures are not identical to substantial assis-
tance departures. "Section 5K1.1 requires a motion from the
government and the government's evaluation of the extent of the
defendant's assistance is given `substantial weight.' Under § 3553(f)],
by contrast, the court determines whether a defendant has complied
with its provisions, including subsection 5." United States v. Acosta-
Olivas, 71 F.3d at 379 (internal citations omitted) (interpreting identi-
cal sentencing guidelines provision U.S.S.G. § 5C1.2); see also
Shendur v. United States, 874 F. Supp. 85, 87 (S.D.N.Y. 1995) (stat-
ing that § 3553(f) departures eliminate the need for defendant to
obtain a letter from the prosecution under § 3553(e) or § 5K1.1 to
obtain a reduction of an otherwise mandatory minimum sentence).
Hence, § 3553(f) does not render superfluous provisions for substan-
tial assistance departures under § 3553(e) or U.S.S.G. § 5K1.1.

We hold, therefore, that defendants seeking to avail themselves of
downward departures under § 3553(f) bear the burden of affirma-
tively acting, no later than sentencing, to ensure that the Government

                     6
is truthfully provided with all information and evidence the defen-
dants have concerning the relevant crimes. Even if this information
is of no use to the Government, it will not prevent the sentencing
court from departing downward if all other requirements of § 3553(f)
are satisfied. We maintain, however, that defendants cannot claim the
benefit of § 3553(f) by the mere fact that the Government never
sought them out for debriefing. Ivester's sentence is, accordingly,

AFFIRMED.

HALL, Circuit Judge, dissenting:

The majority has, in my view, construed the word"provide" to
mean something much more specific than its commonly understood
usage. Because the majority's unduly restrictive approach frustrates
the intent of Congress by imposing a sixth, unauthorized prerequisite
to the operation of the "safety valve" provision, I must dissent.

By enacting § 3553(f), Congress plainly intended to except certain
less-culpable offenders from the relatively harsh mandatory minimum
sentences imposed on those who possess or traffic in substantial quan-
tities of controlled substances, or attempt or conspire to do so.1 The
statute compels the district court to impose a lesser Guidelines sen-
tence if (1) the defendant has no more than one criminal history point;
(2) the defendant did not employ violence, threats of violence, or pos-
sess a firearm in connection with the offense; (3) no one was killed
or seriously hurt as a result of the offense; (4) the defendant neither
played an aggravating role (organizer, leader, etc.) in the offense nor
engaged in a continuing criminal enterprise; and (5) the defendant
"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." See 18
_________________________________________________________________
1 See United States v. Buffington , 879 F. Supp. 1220, 1223 (N.D. Ga.
1995) ("Congress clearly intended to relax the imposition of mandatory
minimum sentences in this limited context.") (footnote omitted); Shendur
v. United States, 874 F. Supp. 85, 86 (S.D.N.Y. 1995) ("[Section]
3553(f) reflects a congressional decision that mandatory minimum sen-
tences no longer be applied mechanically.").

                    7
U.S.C.A. § 3553(f) (West 1995 Supp.).2 As to the fifth requirement,
the defendant is not denied the benefit of the statute merely because
he possesses no relevant or useful information, or because any or all
of the material that he discloses is already known to the government.
Id.

Nowhere in § 3553(f) is it suggested that a defendant must, with
respect to the fifth requirement, initiate contact with the government
in order to avail himself of the safety valve.3 Indeed, several courts
have made findings of fact regarding compliance with§ 3553(f)(5)
where the contact alleged to have provided all or part of the context
for the defendant's revelation has been initiated by the government or
by the court. See United States v. DeJesus-Gaul , No. 95-3045, 1996
WL 12644, at *1 (D.C. Cir. Jan. 12, 1996) (testimony at sentencing
hearing); United States v. Rodriguez, 69 F.3d 136, 143 (7th Cir. 1995)
(verbal admission of guilt, apparently during Rule 11 colloquy);
United States v. Blackwell, 897 F. Supp. 586, 589 (D.D.C. 1995)
(statements to probation officer); United States v. Buffington, 879 F.
Supp. 1220, 1221 (N.D. Ga. 1995) (same);4 United States v. Hart, 876
F. Supp. 4, 5 (D.D.C. 1995) (statements at plea hearing).

Instead, all that is required of the defendant is that he "provide" the
government with information and evidence relating to the offense or
offenses of which he stands convicted. As it is used in § 3553(f)(5),
the word "provide" means nothing more than"tell." The majority is
correct that the statute contemplates an "affirmative act" of coopera-
tion. Ante at 5. However, the affirmative act required is merely that
the defendant open his mouth. A defendant may satisfy § 3553(f)(5)
_________________________________________________________________
2 See also United States Sentencing Commission, Guidelines Manual,
§5C1.2 (Nov. 1995) (incorporating § 3553(f) verbatim).
3 The district court nevertheless appears to have imposed such a
requirement, stating that "there was not full compliance [with § 3553(f)],
for the reason that I think it was incumbent upon[Ivester] to initiate the
full confession of activities to the Government at an early time, and I
cannot find that he has done that."
4 Contra United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995)
(holding that the defendant's statements to the probation officer were
insufficient to satisfy the safety valve's fifth requirement: "[T]he proba-
tion officer is, for purposes of § 5C1.2, not the Government.").

                    8
by telling the government what he knows at any time both parties are
present and receptive to communication.5

It bears repeating that the statute merely requires the defendant to
provide all the information and evidence that he has. That the material
is stale or unhelpful to the authorities is of no consequence. Indeed,
the record in Ivester's case indicates that he was the last of the con-
spiracy's five members to be indicted, and the government admits that
it never sought to debrief him. A fair inference thus arises that Ivester
had no useful information to reveal. Moreover, the question of
whether Ivester would qualify for the safety valve was not broached
until the sentencing hearing itself (barely one month following the
statute's effective date), and then only by someone who appears to
_________________________________________________________________
5. Cf. USSG § 3E1.1, decreasing the defendant's offense level by two if
he "clearly demonstrates" acceptance of responsibility for the offense.
Arguably, the language of that Guideline contemplates even more of an
"affirmative" act than does § 3553(f)(5). Nevertheless, the two-point
decrease under § 3E1.1 is, to my knowledge, never contingent upon the
defendant's spontaneous request for leniency. Instead, the probation offi-
cer routinely interviews the defendant and otherwise examines the record
for evidence of the defendant's contrition. The probation officer then
makes a recommendation to the sentencing court. There is no reason that
a similar procedure cannot be followed to determine whether § 3553(f)
applies in a particular case.

I would also point out that, contrary to the majority's construction, the
word "provide" does not ordinarily connote assertive behavior on the part
of the actor. After all, a supermarket "provides" the public with grocery
items, but it is the rare store indeed that makes home deliveries, and rarer
still unsolicited ones.

Finally, I note that United States v. Arrington , No. 95-1566, 1996 WL
1114, (7th Cir. Jan. 2, 1996), does not dictate a different result in
Ivester's case. The court of appeals in Arrington held that a defendant's
stipulation to facts in a plea agreement was insufficient to satisfy
§ 3553(f)(5). Although the Seventh Circuit observed that the defendant
"did not initiate any contact with government officials offering to pro-
vide details of his involvement in drug dealing," it also specifically stated
that the defendant had failed to respond to a letter from the government
proffering terms for further debriefing. Id. at *3. In addition, there was
ample evidence that the defendant possessed information unknown to the
government. Id.

                     9
have been representing the probation office at the hearing. Under the
circumstances, it seems only fair that we remand this case so that
Ivester may be given the opportunity to fully comply with the letter
of § 3553(f)(5).

I respectfully dissent.

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