                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-2003

USA v. Warren
Precedential or Non-Precedential: Precedential

Docket No. 02-3110P




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                          PRECEDENTIAL

                                  Filed August 7, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 02-3110


           UNITED STATES OF AMERICA
                         v.
                 ISAIAH WARREN,
                                Appellant

    Appeal from the United States District Court
       for the Western District of Pennsylvania
                (D.C. No. 00-cr-00115)
   District Judge: The Honorable Donald E. Ziegler

               Argued: May 14, 2003
Before: RENDELL, SMITH and ALDISERT, Circuit Judges

               (Filed: August 7, 2003)

                  SHELLEY STARK, Federal Public
                   Defender
                  LISA B. FREELAND, Assistant
                   Federal Public Defender (argued)
                  1450 Liberty Center
                  1001 Liberty Avenue
                  Pittsburgh, PA 15222
                  ATTORNEYS FOR APPELLANT
                                     2


                            MARY BETH BUCHANAN,
                             United States Attorney
                            GREGORY NESCOTT,
                             Assistant United States Attorney
                            BONNIE R. SCHLUETER,
                             Assistant United States Attorney
                            KELLY R. LABBY, Assistant
                             United States Attorney (argued)
                            633 U.S. Post Office and Courthouse
                            Pittsburgh, PA 15219
                            ATTORNEYS FOR APPELLEE


                     OPINION OF THE COURT

ALDISERT, Circuit Judge.
  This appeal by Isaiah Warren from his sentence in the
United States District Court for the Western District of
Pennsylvania following a guilty plea requires us to decide
whether a defendant may invoke the Fifth Amendment and
refuse to provide the government with additional
information pursuant to Title 18, United States Code,
Section 3553(f)(5), incorporated by United States
Sentencing Guideline § 5C1.2 (the “Safety Valve”) and still
have the advantage of these provisions.1 We affirm the

1. Warren also argues that the sentencing court failed to give an
adequate explanation of the “effect” of a supervised release term. Rule
11(c)(1), Federal Rules of Criminal Procedure required that the district
court advise the defendant of “the maximum possible penalty provided
by law, including the effect of any . . . supervised release term. . . .” (An
amendment in 2002 changed the relevant language eliminating the
reference to “effects.”) The district court here stated, “. . . you can be
sent to prison for a term of imprisonment of not less than ten years, . . .
[with] a term of supervised release of at least five years when you are
released from prison. . . .” App. at 29. Warren urges that the district
court was required to advise that he could be imprisoned if he violated
supervised release. For our purposes, we do not decide whether the
court’s statement satisfied Rule 11 at the time of the plea. It is arguable
that it did and, thus, that no “error” occurred. Because Warren failed to
raised an objection at trial, the plain error standard of review governs
                                      3


district court and hold that he may not stay quiet and still
qualify for the Safety Valve.

                                      I.
  Warren’s troubles began at approximately 8:30 a.m. on
May 19, 2000 when members of the Drug Enforcement
Administration’s Airport Task Force were alerted by a
supervisor of the Pittsburgh Federal Express facility that
four suspicious “FedEx” packages had been intercepted.
Each package was addressed to “Mr. and Mrs. Timothy
Reed, 376 Mt. Pleasant Road, Pittsburgh, Pennsylvania
15214.”
  A drug detection dog was called to the facility and alerted
to the presence of narcotics. The subsequent execution of a
search warrant revealed almost 10 kilograms of cocaine
hydrochloride secreted in a variety of baby supplies. Task
Force members then repackaged the cocaine in preparation
for a controlled delivery.

our analysis. See United States v. Vonn, 535 U.S. 55, 59 (2002). To
succeed under the plain error standard, Warren bears the burden of
showing that: “(1) an error was committed; (2) the error was plain, that
is, clear and obvious; and (3) the error affected the defendant’s
substantial rights[,] . . . [and] [i]n cases where the first three elements
are satisfied, an appellate court may exercise its discretion to order such
a correction only if the error, seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Dixon, 308
F.3d 229, 234 (3d Cir. 2002) (citations and quotations omitted).
  We conclude that Warren’s substantial rights were not affected. An
error “affected substantial rights” if the error was prejudicial to the
defendant and had affected the outcome of the district court proceeding.
United States v. Olano, 507 U.S. 725, 732 (1993). Although in United
States v. Powell, 269 F.3d 175 (3d Cir. 2001), we noted that there may
be instances where prejudice could be found due to an error involving
supervised release, such instances are rare and Warren has failed to
convince us that, assuming error, that point was reached here. We are
hard pressed to imagine how Warren’s decision to plead turned on a
complete understanding of the potential for further imprisonment if he
violated supervised release. Nor has he convinced us that the colloquy
“seriously affect[ed] the fairness, integrity, or public reputation of judicial
proceedings.” Dixon, 308 F.3d at 234 (citation and quotation omitted).
                              4


  Meanwhile, Warren was in wait at 376 Mt. Pleasant Road
— the residence of his girlfriend, Rayletta Reed. Reed was
unaware of the nature of the impending delivery, but
became suspicious after observing peculiar behavior by
Warren in the days preceding and including the day of his
arrest. Warren spoke to Reed on the day before delivery and
requested permission to have packages delivered to her
residence. He arrived at the residence some time before
8:30 a.m. on May 19. Throughout the day, Reed observed
Warren smoke marijuana and become increasingly nervous
as the packages failed to arrive. At least 17 phone calls
were placed to FedEx from Reed’s residence, inquiring as to
the delivery status of the packages. Reed estimated that, at
one point, Warren used her phone to call FedEx every 20
minutes.
  At approximately 7:40 p.m., a Task Force member posing
as a FedEx employee delivered the packages to the Mt.
Pleasant residence. Isaiah Warren, waiting outside for the
delivery, identified himself and signed for the packages as
“Mr. Reed.”
   Warren was observed placing the packages in the trunk
of his car, and, as he prepared to leave the residence, police
executed a stop of the vehicle. While being taken into
custody without incident, Warren stated, “I can’t believe
that I’m going to jail for ten kilos.” App. at 30; Presentence
Investigation Report ¶ 11.
   On June 13, 2000, Warren was charged in an indictment
with conspiracy to distribute and possess with intent to
distribute in excess of five kilograms of cocaine in violation
of 21 U.S.C. § 846. Warren pleaded guilty to one count of
§ 846 on August 22, 2000.
  At the ensuing plea colloquy, the district court explained
to Warren the rights that he would be forfeiting by pleading
guilty, inquired as to his competence and his satisfaction
with his legal representation, read the charge against him
and outlined the elements of the offense. The potential
penalties facing Warren were then explained as follows:
    BY THE COURT:
    Q . . . Now, if the government can prove each of those
    elements beyond a reasonable doubt, by statute of
                               5


    Congress, you can be sent to prison for a term of
    imprisonment of not less than ten years, a fine not to
    exceed $4,000,000.00, a term of supervised release of
    at least five years when you are released from prison,
    and you must pay a special assessment in the sum of
    $100.00.
        Now, do you understand those provisions?
    A   Yes, sir.
    Q   Why are you entering this plea of guilty?
    A   I’m guilty.
    MR. NESCOTT (U.S. Attorney’s Office): Your Honor,
    just one addition on the colloquy. The Court mentioned
    that the penalty is potentially not less than ten years.
    Of course, the guideline here actually is a hundred and
    twenty-one months. It’s a technical matter, but
    potentially the sentence could be up to life as a
    maximum under this statute.
    THE COURT:        Very good, sir.
App. at 29. The government proceeded to summarize its
evidence against Warren, and the district court ultimately
accepted Warren’s plea. Warren lodged no objection.
   Under the terms of the plea agreement, the government
agreed to take the following action: (1) recommend to the
court that the offense level of 32 not be increased under
U.S.S.G. § 3B1.1 (Aggravating Role); (2) recommend that the
court reduce the offense level by three levels for acceptance
of responsibility under U.S.S.G. § 3E1.1; (3) accept a
stipulation as to drug quantity; and (4) recommend to the
court that Warren be sentenced without regard to any
mandatory minimum sentence pursuant to the Safety
Valve, U.S.S.G. § 5C1.2, provided that Warren satisfy all its
qualifying conditions.
   A Presentence Report (PSR) indicated that the base
offense level was 32 pursuant to U.S.S.G. § 2D1.1(c)(4) and
recommended a decrease of three points for Warren’s
acceptance of responsibility under § 3E1.1. The PSR
recommended      against  applying    the    Safety   Valve
adjustment. It determined that, although Warren satisfied
                               6


the qualifying criteria in 18 U.S.C. § 3553(f)(1)-(4), he failed
to meet the requirements of subsection (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.
The PSR fixed Warren’s offense level at 29.
   Warren’s Criminal History Points merited a Category I
classification, exposing him to a sentencing range of 87-108
months. However, because the minimum term of
imprisonment under 21 U.S.C. § 841(b)(1)(A)(ii)(II) was not
less than ten years to a maximum of life, and because
Warren did not qualify for the Safety Valve — which would
have allowed for a disregard of the statutory minimum —
the PSR recommended that his sentence be increased to
120 months pursuant to U.S.S.G. § 5G1.2(c)(2). It also
stated that a term of supervised release of no less than five
years was required under 21 U.S.C. §841(b)(1)(A)(ii)(II).
   Warren objected to the PSR and requested application of
the Safety Valve provision notwithstanding his refusal to
come forward with “all information and evidence” as
required by 18 U.S.C. § 3553(f)(5), arguing that total
compliance with the letter of the statute would have placed
his family in danger and trenched upon his Fifth
Amendment rights. Had the Court accepted this argument,
it could have disregarded the mandatory minimum
sentence and applied an additional reduction in the base
offense level by two levels. This would have positioned
Warren at the base level of 27 contemplating a sentencing
range of 70-87 months, instead of 120 months. Warren did
not object to the five-year mandatory term of supervised
release.
  The Government remained unsatisfied with the quality of
information Warren had provided pursuant to 18 U.S.C.
                             7


§ 3553(f)(5). Specifically, the government was interested in
the names of buyers and suppliers. App. at 65-66; Br. for
Appellant at 9. The district court agreed and rejected the
Safety Valve objection, stating “Let’s talk about the Fifth
Amendment privilege of self-incrimination. It’s gone. He has
pled guilty.” App. at 52. Warren was sentenced to the
mandatory minimum of ten years to be followed by five
years of supervised release. No direct appeal was taken.
  On August 14, 2001, Warren filed a Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255, arguing
that his trial counsel was ineffective for failing to file a
direct appeal as requested. The parties agreed that
Warren’s right to bring a direct appeal should be reinstated
nunc pro tunc. The district court entered the requested
order and dismissed the remainder of the Motion to Vacate
as premature without prejudice to renew. A timely notice of
appeal was filed on July 29, 2002.
   The United States District Court for the Western District
of Pennsylvania had jurisdiction of the underlying action
pursuant to 18 U.S.C. § 3231 based upon Warren’s
narcotics offense against the laws of the United States. This
Court has appellate jurisdiction pursuant to 18 U.S.C.
§ 1291. Moreover, we have jurisdiction pursuant to 18
U.S.C. § 3742(a)(1), which provides jurisdiction over
sentences allegedly imposed in violation of law.

                             II.
  We exercise plenary review over constitutional claims
involving a violation of the Fifth Amendment privilege
against self-incrimination. United States v. Gomez, 237 F.3d
238, 239 (3d Cir. 2000), cert. denied, 532 U.S. 984 (2001).
The same standard applies to review of the district court’s
interpretation and application of the Sentencing Guidelines.
United States v. Thornton, 306 F.3d 1355, 1358 (3d Cir.
2002).

                             A.
  “No person . . . shall be compelled in any criminal case to
be a witness against himself. . . .” U.S. CONST. amend. V.
                                   8


  This staple of constitutional criminal jurisprudence
broadly encompasses two distinct privileges: it allows a
criminal defendant to refuse to testify at trial; and it allows
any person “not to answer official questions put to him in
any other proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal
proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426
(1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).
   In Mitchell v. United States, 526 U.S. 314 (1999), the
Court held that a guilty plea in the federal criminal system
does not totally waive the defendant’s self-incrimination
privilege at sentencing as it relates to both the underlying
relevant conduct and other unrelated criminal activity that
poses the threat of additional punishment. The Court
reasoned that “a defendant may have a legitimate fear of
adverse consequences from further testimony . . . [and] any
effort . . . to compel [that testimony] . . . at the sentencing
hearing clearly would contravene the Fifth Amendment.” Id.
at 326 (quotation omitted).
   It appears that under some of the teachings of Mitchell,
the district court’s statement swept too broadly to the
extent it said that the Fifth Amendment was “gone” because
Warren “ple[aded] guilty . . . [and] waived his right not to
incriminate himself. . . .” App. at 52. However, that does
not control the outcome of this case. What was left unsaid
in Mitchell is as important as what was said. The Court
specifically stated that it expressed no opinion on “whether
silence bears upon the determination of . . . [a] downward
adjustment provided in § 3E1.1 [— and logically § 5C2.1
—] of the United States Sentencing Guidelines. . . .” Id. at
330.2

                                   B.
  The issue for decision here is one of first impression in

2. This specific statement in Mitchell dismantles Appellant’s attempt to
discredit the persuasive authority of United States v. Arrington, 73 F.3d
144 (7th Cir. 1996), United States v. Washman, 128 F.3d 1305 (9th Cir.
1997) and United States v. Cruz, 156 F.3d 366 (2d Cir. 1998) by
observing that these Safety Valve cases pre-date Mitchell’s holding.
                                     9


this court: whether a defendant may rely on the Fifth
Amendment in refusing to disclose “all information and
evidence . . . concerning the offense or offenses that were
part of the same course of conduct or of a common scheme
or plan. . . .” as required in U.S.S.G. § 5C1.2(a)(5). Warren
acknowledges he has not fully disclosed, but nonetheless
argues that his Fifth Amendment right against self-
incrimination was violated by the district court’s insistence
that he come forth with the information requested by the
government — most notably the identity of his
coconspirators. He claims that full cooperation under the
Safety Valve would have exposed him and his family to
potential retribution and would have created the possibility
of additional criminal liability.3
  The Supreme Court has decided a string of so-called
“penalty” cases that hold that the government may not
impose a penalty on a person for asserting his or her Fifth
Amendment privilege. See Minnesota v. Murphy, 465 U.S.
420, 434 (1984); Lefkowitz v. Cunningham, 431 U.S. 801,

3. Although Appellant’s argument contemplates two separate rationales
— fear of consequences and personal incrimination — we shall only
address the latter. As to the first contention, the Court of Appeals for the
Second Circuit has adequately addressed its merit in United States v.
Tang, 214 F.3d 365 (2d Cir. 2000):
    The [Safety Valve] makes no exception for failure to furnish
    information because of feared consequences, yet it seems unlikely
    that Congress was unaware that those with knowledge of narcotics
    traffic would in some instances have legitimate apprehension about
    disclosing what they know. In other contexts, courts have refused to
    recognize fear of the consequences of disclosure as a lawful ground
    for withholding information that is required to be disclosed, see
    Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961); United
    States v. Winter, 70 F.3d 655, 665-66 (1st Cir. 1995) (testimony
    required under grant of immunity), and no case has recognized such
    fear as a permissible basis for withholding information that renders
    a person eligible for a cooperation departure under U.S.S.G. § 5K1.1.
    The Sentencing Commission evidently contemplates that risk of
    injury to a defendant or his family will not excuse withholding
    information, because such a risk is explicitly identified as a factor to
    be considered in determining the extent of a cooperation departure.
    See id. § 5K1.1(a)(4). We see no basis for creating a fear-of-
    consequences exception to the safety valve provision.
                               10


804-808 (1977); Lefkowitz v. Turley, 414 U.S. 70, 77-84
(1973); Sanitation Men v. Comm. of Sanitation, 392 U.S.
280, 284-285 (1968); Gardner v. Broderick, 392 U.S. 273,
276-279 (1968) (all stating that sanctions such as loss of
job, of state contracts, of future contracting privileges with
the state, of political office, of the right to run for office and
the revocation of probation are all impermissible
“punishment” on the exercise of the privilege). To determine
the Fifth Amendment implications of the Safety Valve
statute and guideline we first decide whether the
circumstances here come within the rubric of the
jurisprudential concept of a “penalty.”

                               III.
   Mitchell made clear that a court’s decision to increase a
sentence based upon the defendant’s exercise of his or her
Fifth Amendment privileges is an unconstitutional
“penalty.” 526 U.S. at 329. Although the treatment of a
Safety Valve decrease is an open question in our court,
several of our sister Courts of Appeals have held that
denying a sentencing reduction under U.S.S.G. § 5C1.2
constitutes a “denied benefit” rather than a penalty and
thus avoids Fifth Amendment implications. See e.g. United
States v. Arrington; 73 F.3d 144, 149 (7th Cir. 1996)
(“Requiring defendants to admit past criminal conduct in
order to gain relief from statutory minimum sentence does
not implicate the right against self-incrimination.”); United
States v. Washman, 128 F.3d 1305, 1307 (9th Cir. 1997)
(“Section 3552(f) does not raise constitutional concern
because it does not mete out additional punishment if a
defendant decides not to disclose under § 3553(f)(5).”)
(emphasis in original); United States v. Cruz, 156 F.3d 366,
374 (2d Cir. 1998) (“[W]e hold that the choice confronting
the defendant [with respect to § 5C1.2] gives rise to no more
compulsion than that present in a typical plea bargain. We
do not believe that this choice, unlike the choice in the
penalty cases, is likely to exert such pressure upon an
individual as to disable him from making a free and
rational choice.”).
  We are persuaded that the reasoning in support of these
decisions is also consistent with the intent of Congress in
                             11


enacting the Safety Valve provision. For example, in
Washman the court recognized that the purpose of the
provision was “to remedy an inequity in the Guidelines
whereby more senior operatives could obtain lighter
sentences than less culpable lower-level operatives because
the former had more information to offer than the latter
and so could benefit from the Substantial Assistance
downward departure under U.S.S.G. § 5K1.1.” 128 F.3d at
1307. The Safety Valve remedies this inequity by “allowing
the sentencing court to disregard the statutory minimum in
sentencing first-time nonviolent drug offenders who played
a minor role in the offense and who have made a good-faith
effort to cooperate with the government.” Id. (quotation and
citation removed). Then, too, in Cruz the court explained
that, like plea bargaining, the “purpose of conditioning the
safety valve benefit on truthful disclosure of relevant
conduct was not to force defendants to waive their Fifth
Amendment privilege, but to further another legitimate
governmental goal.” 156 F.3d at 375. And again in
Washman, “The intent of Congress would be thwarted if
defendants could obtain the benefit of the safety valve yet
not disclose their true roles.” 128 F.3d at 1307.

                            IV.
   In United States v. Frierson, 945 F.2d 650 (3d Cir. 1991),
we tackled the self-incrimination problem involved in the
“Acceptance of Responsibility” Sentencing Provision,
U.S.S.G. § 3E1.1. Jerome Frierson pleaded guilty to one
count of bank robbery by intimidation in violation of 18
U.S.C. § 2113(a). In exchange for his plea, the government
dropped two separate charges of bank robbery with a
dangerous weapon and interstate transportation of a stolen
car. Frierson sought a two-point reduction under U.S.S.G.
§ 3E1.1. The district court denied the reduction, finding
that Frierson withheld information while “selectively”
accepting responsibility.
  In his appeal, Frierson argued, as does Warren here, that
he was unconstitutionally punished for his silence in
violation of the Fifth Amendment. We affirmed, holding that
the “reduction was denied on the basis of voluntary
statements by Frierson in which he denied possessing a
                                  12


gun[,]” not because “of any statements compelled pursuant
to a threat against exercise of the [Fifth Amendment]
privilege.” Frierson, 945 F.2d at 664.
   Notwithstanding the specific reasoning behind the
affirmance in Frierson, Warren claims support in some of
the language in the opinion. He places much emphasis on
the opinion’s concluding passage:
      We summarize our holdings:

                              *    *    *
      3. For Fifth Amendment purposes, a denied reduction
      in sentence is equivalent to an increase in sentence;
      both are “penalties.”
Id.
  Two very important reasons militate against accepting
Appellant’s Frierson argument.

                                  A.
  Simply labeling a statement in an opinion as a “holding”
does not necessarily make it so. Gratuitous statements in
an opinion that do not implicate the adjudicative facts of
the case’s specific holding do not have the bite of precedent.
They bind neither coordinate nor inferior courts in the
judicial hierarchy. They are classic obiter dicta:
“statement[s] of law in the opinion which could not logically
be a major premise of the selected facts of the decision.”4
  In examining the ratio decidendi in Frierson, we see the
categorical deductive syllogism, albeit cloaked in
enthymemes:
      Compelled statements are a threat against the Fifth
      Amendment.
      Frierson’s statements were not compelled, but were
      voluntary.

4. RUPERT CROSS, PRECEDENT IN ENGLISH LAW 80 (2d ed. 1968) (citing EDWIN
W. PATTERSON, JURISPRUDENCE: MEN AND IDEAS OF THE LAW 313 (1953)).
                                       13


        Therefore, they were not a threat against the Fifth
        Amendment.
  Thus, the Frierson rationale did not rely on the gratuitous
statement in the opinion, “a denied reduction in sentence is
equivalent to an increase in sentence; both are ‘penalties.’ ”
This so-called “holding” was classic obiter dicta.5

                                       B.
   The second, and more important reason against
accepting Warren’s Frierson argument, is that its “holding”
statement has been totally eviscerated by our later
consideration of the teachings of Corbitt v. New Jersey, 439
U.S. 212 (1978), which deemed constitutional a state
murder statute providing the potential for a shorter
sentence to defendants who pleaded non vult, or no contest.
In so holding, the Court noted that “not every burden on
the exercise of a constitutional right, and not every
pressure or encouragement to waive such a right, is invalid.
Specifically, there is no per se rule against encouraging
guilty pleas.” Id. at 218-219. Even though Frierson was
decided after Corbitt — and presumably the panel
considered its relevance — we later stated in United States
v. Cohen, 171 F.3d 796, 805 (3d Cir. 1999), that, “[t]o the
extent that Corbitt is in tension with [the so-called
“holding”] . . . in Frierson, we must follow the Supreme
Court. Sentencing Guideline 3E1.1 creates an . . . incentive
for defendants to plead guilty, and under Corbitt, this
incentive is constitutional.”6

5.     It is not everything said by a judge when giving judgment that
       constitutes a precedent. In the first place, this status is reserved for
       his pronouncements on the law, and, . . . no disputed point of law
       is involved in the vast majority of cases that are tried in any year.
       . . .
       The second reason . . . is that, among the propositions of law
       enunciated by him, only those which he appears to consider
       necessary for his decision are said to form part of the ratio decidendi
       and thus to amount to more than an obiter dictum. . . .
     CROSS, supra note 4 at 35-40.
6. Appellant attempts to discredit this statement in Cohen by explaining
that Corbitt only involves a Sixth Amendment claim, not a Fifth
                                    14


   For the foregoing reasons Appellant’s reliance on Frierson
is misplaced.

                                    V.
   We therefore join our sister Courts of Appeals that
characterize the Safety Valve a denied benefit rather than a
penalty, although we focus more on the lack of true
compulsion, rather than the benefit versus penalty
dichotomy upon which other cases have dwelled. “The
choice presented to a defendant under § 5C1.2 between a
sentence reduction with relief from the mandatory
minimum sentence and waiver of his [right to silence] is
analogous to the choice confronting defendants in plea
bargain cases.” Cruz, 156 F.3d at 374. Contrary to
Appellant’s concern that he is “compelled to provide
incriminating information to earn a reduction in his or her
sentence, . . . the choice confronting the defendant gives
rise to no more compulsion than that present in a typical
plea bargain.” Id. We believe that “this choice, unlike the
choice in the [Supreme Court’s] penalty cases, is not ‘likely
to exert such pressure upon an individual as to disable him
from making a free and rational choice.’ ” Id. (quoting
Miranda v. Arizona, 384 U.S. 436, 464-465 (1966)).
   Accordingly, the Safety Valve provision furthers a
legitimate government goal and does not impose an
unconstitutional condition on defendants seeking its
advantages.
                                  * * * *
  Warren voluntarily and intelligently accepted a plea
bargain. In order to qualify for the sentencing benefits of

Amendment claim as both Frierson and the present case do. Presumably,
Appellant borrows the language from the Cohen opinion stating that the
murder statute in Corbitt “did not violate the defendant’s Sixth
Amendment right to trial.” Cohen, 171 F.3d at 805. However, Appellant
should have looked to the Corbitt opinion itself, which clearly states that
the Fifth, Sixth and Fourteenth Amendments were considered on appeal:
“Corbitt submi[ts] that the . . . [plea system] . . . is an unconstitutional
burden on his federal rights under the Fifth, Sixth, and Fourteenth
Amendments.” Corbitt, 439 U.S. at 218.
                             15


the Safety Valve, U.S.S.G. § 5C1.2, he was required to
disclose the names of the individuals involved in the same
course of his criminal conduct. He failed to do so. The
Safety Valve is not a right; it is a privilege. The Fifth
Amendment is not implicated by a defendant’s choice
between seeking its benefits or embracing silence.
  We will AFFIRM the judgment of the district court in all
respects.

A True Copy:
        Teste:

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