                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-1997

United States v. Sabir
Precedential or Non-Precedential:

Docket 96-5626




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Recommended Citation
"United States v. Sabir" (1997). 1997 Decisions. Paper 142.
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Filed June 30, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5626

UNITED STATES OF AMERICA

v.

FAHIM SABIR, a/k/a Salah Rasool

Fahim Sabir,
Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 92-00659-3)

Submitted under Third Circuit LAR 34.1(a)
June 23, 1997

BEFORE: GREENBERG, MCKEE, and WELLFORD,*
Circuit Judges

(Filed: June 30, 1997)




_________________________________________________________________
*Honorable Harry W. Wellford, Senior Judge of the United States Court
of Appeals for the Sixth Circuit, sitting by designation.
Kevin McNulty
Assistant U.S. Attorney
Elizabeth S. Ferguson
Assistant U.S. Attorney
Faith S. Hochberg
United States Attorney
970 Broad Street
Room 502
Newark, NJ 07102

Attorneys for Appellee

James J. Plaia
10 South Prospect Street
Verona, NJ 07044

Attorney for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This case comes before this court on Fahim Sabir's
appeal from the sentence the district court imposed on him
after he pleaded guilty to conspiracy to distribute more
than 100 grams of heroin contrary to 21 U.S.C. § 841(a)(1),
in violation of 21 U.S.C. § 846. Sabir entered the plea
pursuant to a plea agreement which stipulated that he had
demonstrated affirmative acceptance of responsibility
entitling him to a 3-level decrease in his offense level
pursuant to U.S.S.G. § 3E1.1 ("section 3E1.1"). At the
sentencing, after the court awarded Sabir the 3-level
decrease, it calculated his total offense level at 23 which,
when applied to his criminal history category of I, yielded a
sentencing range of 46 to 57 months under the sentencing
guidelines. Nevertheless, 21 U.S.C. § 841(b)(1)(B)
established a mandatory minimum sentence of five years
for the offense so that ordinarily the sentencing range
would not have been material to his sentence.

                    2
Sabir, however, urged at his sentencing that the court
should sentence him under the guidelines without regard
for the statutory minimum sentence, pursuant to the safety
valve provisions in 18 U.S.C. § 3553(f), adopted in 1994 as
a portion of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, § 80001,
108 Stat. 1796, 1985-86. The safety valve provisions have
been incorporated verbatim into the sentencing guidelines
as U.S.S.G. § 5C1.2, but as a matter of convenience we will
refer only to the statutory citations. The safety valve
provisions establish that a defendant shall be sentenced
pursuant to the sentencing guidelines without regard to
any statutory minimum sentence in certain drug offense
cases in the event that the following five conditions are met:

(1) the defendant does not have more than 1 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 (or induce another participant to do
so) 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, or supervisor of others in the offense, as
determined under the sentencing guidelines and was
not engaged in a continuing criminal enterprise, as
defined in 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 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.

18 U.S.C. § 3553(f). Not surprisingly, most of the disputes
in the reported cases involving the safety valve provisions

                    3
center on the fifth condition, 18 U.S.C. § 3553(f)(5) ("section
3553(f)(5)"), which requires the defendant truthfully to
provide certain information to the government. The
government does not claim that Sabir's offense could not
qualify for disposition under the safety value provisions if
the five statutory conditions are satisfied.

The district court rejected Sabir's claim that the safety
valve provisions were applicable:

The final criteria is that not later than the time of the
sentencing hearing the defendant has truthfully
provided to the government all information and
evidence he has concerning the offense or offenses that
were part of the same course of conduct or of a
common scheme or plan.

Defendant does not meet this criteria. According to
the government the defendant gave two proffers, and in
each he minimized his role. To this day of sentencing
he continues to minimize his role and fails to give a full
forthright account of his activities either to the
Probation Department or to the government. Therefore
he's not entitled to the benefit of either the safety valve
or the resulting two level downward adjustment.1

Supp. app. at 15-16. Thus, the court sentenced Sabir to 60
months in prison followed by a four-year term of supervised
release. In addition, the court fined Sabir $2,500. Sabir
then appealed.

II. DISCUSSION

On this appeal Sabir makes two contentions. First, he
contends "that if one is sufficiently candid to get acceptance
_________________________________________________________________

1. We are not completely clear as to what the district court meant when
it indicated that Sabir was not entitled to the benefit of "the resulting
two level downward adjustment." The safety valve provisions do not
provide for a downward adjustment in the offense level but the court did
allow Sabir a 2-level downward adjustment in his offense level for
acceptance of responsibility under section 3E1.1(a). Probably the court
was referring to the fact that at the sentencing it already had denied
Sabir a 2-level decrease in his offense level which Sabir sought under
U.S.S.G. § 3B1.2(b) for being a minor participant in the criminal activity.

                     4
of responsibility, it is contradictory to say that he
minimized his role." Br. at 9. Thus, in his view, the court's
finding that he accepted responsibility should entitle him to
the benefit of the safety valve provisions, but the court
denied him that advantage because it found he minimized
his role in the offense. Second, he contends that he
complied with section 3553(f)(5) which required him to
provide the government with "all information and evidence
[he] has concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or
plan." We exercise plenary review over Sabir's first
contention as we regard it as raising a legal question, but
we can reject the court's findings that Sabir did not provide
the information and evidence only if we conclude that the
findings were clearly erroneous. See United States v.
Wilson, 106 F.3d 1140, 1142-43 (3d Cir. 1997).

Section 3E1.1 provides for a decrease in the offense level
on the basis of the defendant's acceptance of responsibility:

(a) If the defendant clearly demonstrates acceptance
of responsibility for his offense, decrease the offense
level by 2 levels.

(b) If the defendant qualifies for a decrease under
subsection (a), the offense level determined prior to the
operation of subsection (a) is level 16 or greater, and
the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by
taking one or more of the following steps:

(1) timely providing complete information to the
government concerning his own involvement in the
offense; or

(2) timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and
permitting the court to allocate its resources
efficiently,

decrease the offense level by 1 additional level.

We do not doubt that frequently a defendant entitled to
a 2- or 3-level reduction in his offense level by reason of
acceptance of responsibility will be entitled to the benefit of

                    5
the safety valve provisions as well so that he or she will be
sentenced under the guidelines without regard for any
statutory minimum sentence. Yet the acceptance of
responsibility provisions in the guidelines plainly do not
subsume all of a defendant's responsibilities under the
safety valve provisions. In United States v. Arrington, 73
F.3d 144 (7th Cir. 1996), the district court determined that
the defendant was not entitled to the benefit of the safety
valve provisions because he did not satisfy section
3553(f)(5), even though the court allowed him a 2-level
reduction in his offense level under section 3E1.1(a) for
acceptance of responsibility and a 1-level reduction under
section 3E1.1(b)(2) for entering a timely plea of guilty. On
appeal the defendant argued "that it is inconsistent to hold
that he truthfully admitted his offense conduct under
§ 3E1.1(a) but did not truthfully provide all the information
concerning his offense under § 3553(f)(5)." Arrington, 73
F.3d at 149. The Court of Appeals for the Seventh Circuit
rejected that contention:

We agree with the district court that the admission of
responsibility necessary to obtain a reduction under
§ 3E1.1(a) is not necessarily sufficient to satisfy
§ 3553(f)(5). Section 3553(f)(5) requires more
cooperation than § 3E1.1(a): § 3553(f)(5) requires the
defendant to provide `all information . . . concerning the
offense or offenses that were part of the same course of
conduct or of a common scheme or plan,' whereas
§ 3E1.1(a) requires that he admit `the conduct
comprising the offense(s) of conviction.' The distinction
between the two is not insignificant. Although
§ 3E1.1(a) forbids a defendant from falsely denying
relevant conduct, see U.S.S.G. § 3E1.1, comment.
(n.1(a)), it imposes no duty on a defendant to volunteer
any information aside from the conduct comprising the
elements of the offense. Id. In contrast, § 3553(f) states
that a defendant must disclose `all information'
concerning the course of conduct--not simply the facts
that form the basis for the criminal charge.
Accordingly, the district court correctly held that
§ 3553(f)(5) requires more than § 3E1.1(a).

Arrington, 73 F.3d at 149.

                    6
Arrington does not stand alone in the foregoing holding.
In United States v. Adu, 82 F.3d 119 (6th Cir. 1996), the
Court of Appeals for the Sixth Circuit rejected an argument
similar to that the appellant advanced in Arrington, holding
as follows:

The defendant did not carry his burden of proving
that he was eligible for sentencing below the prescribed
mandatory minimum. The requirement of U.S.S.G.
§ 5C1.2 that a defendant provide 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' is
greater than the requirement for an acceptance of
responsibility reduction under U.S.S.G. § 3E1.1.
Application Note 1 to § 3E1.1 states that a defendant is
not required to volunteer, or affirmatively admit,
relevant conduct beyond the offense of conviction in
order to obtain a two-level reduction. To qualify under
§ 5C1.2, however, a defendant must truthfully provide
all information he has concerning the offense of
conviction and all relevant conduct. United States v.
Long, 77 F.3d 1060 (8th Cir. 1996); Application Note 3
to § 5C1.2. Thus, the fact that the defendant qualified
for a two-level acceptance of responsibility reduction
under § 3E1.1 does not establish eligibility for a safety
valve reduction under § 5C1.2. United States v.
Arrington, 73 F.3d 144, 149 (7th Cir. 1996).

Adu, 82 F.3d at 124. See also United States v. Ivester, 75
F.3d 182, 184 (4th Cir.) ("Section 3553(f)(5) requires more
than accepting responsibility for one's own acts."), cert.
denied, 116 S.Ct. 2537 (1996).

We agree with the holdings in Arrington and Adu that the
mere fact that a defendant is entitled to a 2- or 3-level
reduction in his offense level for acceptance of
responsibility does not establish that the defendant has
satisfied the requirements of section 3553(f)(5). Section
3553(f) and section 3E1.1 are not coterminus. For example,
whereas section 3E1.1 focuses on the defendant's
acceptance of individual responsibility, section 3553(f)
requires the defendant to reveal a broader scope of

                    7
information about the relevant criminal conduct to the
authorities.

However, we find questionable the language in Adu
describing the requirements of section 3553(f)(5) as"greater
than the requirement for an acceptance of responsibility
reduction under U.S.S.G. § 3E1.1." Adu, 82 F.3d 124. Our
questioning of Adu is based on the potential implications of
the word "greater" on the relationship between section
3553(f)(5) and section 3E1.1. After all, the safety valve and
acceptance of responsibility provisions have different
elements, so that the acceptance of responsibility provision
is not a lesser-included requirement of the safety valve
provisions. See United States v. Shrestha, 86 F.3d 935,
939-40 (9th Cir. 1996) (holding that defendant need not
satisfy requirements of section 3E1.1 to be eligible for relief
under section 3553(f)); United States v. Acosta-Olivas, 71
F.3d 375, 379 (10th Cir. 1995) (emphasizing differences
between section 3553(f)(5) and section 3E1.1). Indeed, the
Court of Appeals for the Seventh Circuit recently has
clarified that Arrington did not hold that a finding that the
safety valve provisions of section 3553(f) apply also means
the defendant has complied with the acceptance of
responsibility provisions of section 3E.1.1. United States v.
Webb, 110 F.3d 444, 447 (7th Cir. 1997) ("Arrington does
not imply that every defendant who receives a § 5C1.2 (or a
§ 3553(f)) reduction must receive a § 3E1.1(a) reduction.
Section 5C1.2(5) in one respect demands more of an effort
from the defendant than § 3E1.1(a) . . . but in other
respects may demand less."). Consequently, we do not hold
that a defendant entitled to the benefit of the safety valve
provisions necessarily is entitled to a reduction in his or
her offense level for acceptance of responsibilty. Indeed,
that issue is not even before us. Yet our possible
disagreement with Adu on this issue does not undermine
the usefulness of that case on the point for which we cite
it, i.e., that the mere fact that a defendant is entitled to a
reduction of his offense level by reason of his acceptance of
responsibility does not establish that he has satisfied the
requirements of section 3553(f)(5).

We also reject Sabir's contention that he was entitled to
the benefit of the safety valve provisions because he in fact

                    8
complied with section 3553(f)(5). Sabir, of course, had the
burden to show by a preponderance of the evidence that
the safety valve provisions were applicable to his case. See
United States v. Ramirez, 94 F.3d 1095, 1100-02 (7th Cir.
1996). The district court pointed out that Sabir minimized
his role in the offense and to the day of the sentencing
failed to give a "full forthright account of his activities either
to the Probation Department or to the government." This
finding was not clearly erroneous. In the circumstances, we
hold, exercising plenary review, that Sabir did not
"truthfully provide[ ] to the Government all information and
evidence" he had concerning the offense. After all, he surely
knew his own role in the offense, yet he did not disclose it
completely.

In rejecting Sabir's second contention, we have not lost
sight of his argument that he cannot have minimized his
role in the offense, as the court found that he had accepted
responsibility and thus was entitled to the 2-level decrease
in his offense level under section 3E1.1(a). While there is a
certain logic in this argument, in view of the specific nature
of the court's finding that Sabir minimized his role in the
offense, acceptance of the argument that the court's
findings under section 3E1.1(a) and section 3553(f)(5) were
inconsistent so that both could not stand, rather than
leading to an application of the safety valve provisions,
would lead to a denial of a downward adjustment in his
offense level for acceptance of responsibility. We, however,
will not consider that possibility further as the government
has not challenged the court's allowance of the downward
adjustment of the offense level.2
_________________________________________________________________

2. Actually, Sabir may have been treated more leniently than the facts
warranted when the court sentenced him to a 60-month custodial term.
Denial of a 2-level decrease in his offense level under section 3E1.1(a)
also would have denied him the 1-level decrease under section 3E1.1(b),
thus leading to a total offense level of 26 and a guidelines range of 63
to 78 months.

                     9
III. CONCLUSION

In view of the aforesaid, we will affirm the judgment of
conviction and sentence of September 4, 1996.

A True Copy:
Teste:

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

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