UNITED STATES of America, Plaintiff-Appellee, v. Bob Jack WASHMAN, Defendant-Appellant

Citations: 128 F.3d 1305; 97 Daily Journal DAR 13641; 97 Cal. Daily Op. Serv. 8214; 1997 U.S. App. LEXIS 29893; 1997 WL 668300Docket: 96-10050

Court: Court of Appeals for the Ninth Circuit; October 24, 1997; Federal Appellate Court

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Bob Jack Washman appeals his sentencing, contesting the district court's conclusion that he is ineligible for a reduced sentence under the "safety valve" provision of 18 U.S.C. § 3553. Washman was indicted for possession with intent to distribute marijuana after Border Patrol agents discovered 559 pounds of marijuana in his motor home. Initially pleading not guilty, he later switched to a guilty plea with a government recommendation of 60-63 months incarceration. Before sentencing, Washman sought to withdraw his plea, asserting eligibility for a sentence reduction under the safety valve due to potential cooperation with the government.

Judge Browning denied his withdrawal request, determining that the safety valve did not apply because Washman did not cooperate. Washman appealed, and the Ninth Circuit remanded the case, ruling he could withdraw his plea before formal acceptance, which had not occurred prior to his request. On remand, the court again found Washman ineligible for the safety valve due to lack of compliance with cooperation requirements, imposing a 60-month sentence with 5 years of supervised release.

The central issue on appeal is whether 18 U.S.C. § 3553(f) mandates that Washman disclose information about unconvicted conduct to qualify for relief from the mandatory minimum sentence. The district court's application of sentencing guidelines will be reviewed de novo, while factual determinations regarding eligibility for relief will be checked for clear error.

Washman contends on appeal that § 3553(f) infringes on his Fifth Amendment right against self-incrimination by necessitating the disclosure of relevant conduct unknown to law enforcement. While precedent indicates that requiring admissions of uncharged conduct for sentence reductions may violate Fifth Amendment rights, § 3553(f)(5) does not impose additional punishment for a failure to disclose. This aligns with congressional intent behind the safety valve provision, aimed at addressing sentencing disparities between higher-level operatives and lower-level participants in drug offenses. The provision allows first-time nonviolent offenders who cooperatively engage with authorities to avoid mandatory minimum sentences.

The district court's refusal to apply the safety valve for Washman’s sentence was upheld, as he failed to meet the burden of proof necessary to demonstrate qualification. Evidence indicated that Washman's child informed authorities of his prior marijuana transportation, and he did not deny involvement nor provide evidence of his innocence regarding other incidents. Consequently, the court affirmed the district court's decision. The dissent raised a different statutory interpretation theory, but this was not presented in the lower court, maintaining the appellate rules that prevent consideration of unraised issues. The final ruling was to affirm the district court's decision.

Bob Jack Washman pled guilty to possession of marijuana with intent to distribute, which carries a mandatory minimum sentence of 60 months under 21 U.S.C. § 841. Washman contends he qualifies for relief under the "safety valve" statute, 18 U.S.C. § 3553(f), specifically questioning whether § 3553(f)(5) necessitates disclosing details of unconvicted conduct for such relief. The safety valve statute aims to limit mandatory minimum sentences to more serious offenses and applies if a defendant meets five criteria, including having no significant criminal history and not being involved in violence or significant injury. At sentencing, Washman argued he met all requirements, requesting a reduced sentence of 37-46 months, but the government countered that he failed to meet the disclosure requirement of § 3553(f)(5) by not providing information on prior marijuana transport. Washman argued that such disclosure would violate his Fifth Amendment rights against self-incrimination since he had not been convicted of those acts. The district court sentenced him to the mandatory minimum, rejecting his constitutional argument. On appeal, the court suggests it need not address the constitutional issue, asserting that the statutory language of § 3553(f)(5) does not mandate disclosure of unconvicted conduct.

Congress defined "offense" in subsection (f)(5) of the safety valve statute to refer exclusively to conduct for which a defendant has been convicted. The statute mandates that courts impose sentences without regard to statutory minimums only for actual convictions, indicating that a court cannot impose sentences for unconvicted conduct. The language used in subsection (f)(5) mirrors that of the U.S. Sentencing Guidelines, specifically Guideline 1B1.3(a)(2), but omits the phrase "all acts or omissions," which broadens the scope of relevant conduct beyond convictions. By replacing it with "the offense or offenses," Congress intended to restrict the disclosure requirement to convicted conduct only. 

The interpretation by the Sentencing Commission, which suggests that subsection (f)(5) requires disclosure of both the offense of conviction and relevant conduct, misinterprets Congress's intent by effectively altering "the offense or offenses" to "all acts or omissions." This reading lacks justification, as Congress's consistent use of "offense" throughout the statute clearly refers to actual convictions. Consequently, the appellant should not be obligated to disclose involvement in unconvicted conduct regarding marijuana transportation. The district court's findings indicated compliance with subsections (f)(1) and (f)(3), but not (f)(5). The recommendation is to vacate the appellant's sentence and remand the case for resentencing based on this interpretation.