                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-8-2008

USA v. Hoover
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3611




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                                               NOT PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                  _______________

                       No. 07-3611
                     _______________

              UNITED STATES OF AMERICA

                             v.

                     EDGAR HOOVER,

                                  Appellant.

                     _______________

       On Appeal From the United States District Court
           for the Middle District of Pennsylvania
                (Criminal No. 05-cr-00311-2)
          District Judge: Honorable Malcolm Muir
                      _______________

         Submitted Under Third Circuit LAR 34.1(a)
                    on October 1, 2008

Before: FISHER, CHAGARES, and HARDIMAN, Circuit Judges.
                   _________________

                  (Filed: December 8, 2008)

                     ________________


                 OPINION OF THE COURT

                     ________________
CHAGARES, Circuit Judge.

       This is an appeal from the denial of the application of “safety valve” provisions in

defendant Edgar Hoover’s sentence. Hoover makes two arguments on appeal: (1) that the

District Court should have granted a two-level reduction in offense level pursuant to the

safety valve provisions of U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f); and (2) that the

District Court erred when it failed to hold an evidentiary hearing on the application of the

safety valve. We will affirm.

                                              I.

       As we write mainly for the parties, we only briefly recite the facts. On December

15, 2002, Edgar Hoover drove with Chad Kelly to Philadelphia in Hoover’s car so that

Kelly could buy cocaine from David Hill. Although Hoover suggested the trip was to go

Christmas shopping, he “readily understood that the reason for the meeting between Hill

and Chad Kelly. . . was for the purpose of obtaining cocaine.” Supplemental Appendix

(Supp. App.) 19. Hoover knew that Kelly sold cocaine and had received some from him

before, that Hill sold and distributed cocaine and had received cocaine “directly from Hill

for Hoover to sell,” and that before the trip, Hoover “observed Hill in possession of

multiple ounces of cocaine and thousands of dollars in cash.” Id. at 20. Furthermore,

Hoover had driven Kelly and Hill to New York “on multiple occasions” and “the purpose

of these trips to New York was to obtain cocaine.” Id. On December 15, the police

stopped Hoover’s car and recovered a kilogram of cocaine and a pistol. Id. Hoover later



                                              2
pled guilty to a drug offense. He is now contesting whether the relevant safety valve

provisions were correctly applied to him, and whether the district court abused its

discretion when it failed to hold an evidentiary hearing on this issue.

                                               II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction to review this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

       As to the first issue, whether the District Court should have granted Mr. Hoover a

two-level decrease pursuant to the safety valve, we review the District Court’s factual

findings under a clear error standard. United States v. Barrie, 267 F.3d 220, 223 (3d Cir.

2001) (citation omitted). That is, “[w]e will reverse ‘only if we are left with a definite and

firm conviction that a mistake ha[s] been made. . .’ We may not reverse if the district

court’s findings are ‘plausible in light of the record viewed in its entirety.’” Id. (citations

omitted). We review the District Court’s “interpretation and application of the sentencing

guidelines” under a plenary standard. United States v. Helbling, 209 F.3d 226, 243 (3d

Cir. 2000).

       As to the second issue, the denial of an evidentiary hearing, we employ an abuse of

discretion standard. United States v. Houston, 217 F.3d 1204, 1206-07 (9th Cir. 2000).

                                              III.

       The safety valve applicable to Hoover’s offense is set forth in U.S.S.G. § 5C1.2 and

18 U.S.C. § 3553(f) and allows a sentencing court to depart from the statutory minimum



                                               3
sentence if a defendant establishes five factors. The factor at issue in this case is whether

the defendant “possess[ed] a firearm. . . in connection with the offense.” 18 U.S.C. §

3553(f)(2); U.S.S.G. § 5C1.2(a)(2). A defendant must prove by a preponderance of the

evidence that the safety valve applies. United States v. Sabir, 117 F.3d 750, 754 (3d Cir.

1997). The District Court found that the defendant did not meet this burden. Appendix

(App.) 50a (District Court Order).

       The District Court accepted as true all of the assertions that Hoover and his fiancé,

Jaimie Stewart, made regarding why the gun was in the car. App. 50a (District Court

Order). Nevertheless, the Court found that “[t]he grounds presented by Hoover and

Stewart are entirely consistent with a determination that the gun was in the vehicle for

multiple reasons, including the trips to obtain cocaine.” App. 50a.

       Hoover knew that the purpose of the trip was to obtain cocaine and that he had been

involved in cocaine transactions with Hill before, and we are not left with a “definite and

firm conviction that a mistake has been made” regarding the District Court’s finding that

Hoover has not shown by a preponderance of the evidence that the gun was in the car for

“multiple reasons, including the trips to obtain cocaine.” App. 50a. Since the District

Court found that Hoover had not established his burden of proving by a preponderance of

the evidence that the gun was not used in connection with the offense, it correctly denied

application of the safety valve provisions. Thus, we will affirm the ruling of the District

Court as to this issue.



                                              4
       The second issue is whether the District Court’s failure to hold an evidentiary

hearing on this matter constitutes an abuse of discretion. See Houston, 217 F.3d at 1206-

07. Under U.S.S.G. § 6A1.3(a), “[w]hen any factor important to the sentencing

determination is reasonably in dispute, the parties shall be given an adequate opportunity

to present information to the court regarding that factor.” The commentary to § 6A1.3(a)

explains:

       When a dispute exists about any factor important to the sentencing determination,
       the court must ensure that the parties have an adequate opportunity to present
       relevant information. Written statements of counsel or affidavits of witnesses may
       be adequate under many circumstances.... [but] [a]n evidentiary hearing may
       sometimes be the only reliable way to resolve disputed issues.

U.S.S.G. § 6A1.3(a) cmt. (emphasis added) (citations omitted).

       The District Court in this case considered affidavits and other evidence supporting

Hoover’s claim, and accepted as true all of the allegations contained within them.

Importantly, Hoover failed to identify to either the District Court or this Court any

additional facts that he would have presented at a hearing. Under these circumstances, we

find that the District Court did not abuse its discretion when it declined to hold an

evidentiary hearing.

                                              V.

       Accordingly, we will affirm the judgment of sentence of the District Court.




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