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

128 F.3d 1305, 97 Daily Journal DAR 13641, 97 Cal. Daily Op. Serv. 8214, 1997 U.S. App. LEXIS 29893, 1997 WL 668300

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 24, 1997
• Docket: 96-10050
• Status: Published

Opinions

MOLLOY, District Judge.

Appellant Bob Jack Washman (Washman) appeals the sentence imposed on him by the district court and seeks remand for resentencing. In particular, Washman objects to Judge Broyming’s finding that he is ineligible for a sentence reduction below the mandatory minimum guidelines sentence pursuant to the “safety valve” provision of 18 U.S.C. § 3553.

FACTS '

Washman was indicted on April 20, 1994 on one charge of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). About 3:00 a.m. on the morning of March 27, 1994, agents of the Border Patrol followed footprints from the border directly to the door of a motor home parked approximately 100 yards away. The vehicle was kept under observation for several hours before agents finally approached it and knocked on the door. Washman opened the door. He immediately agreed to a search of the motor home. Agents found about 559 pounds of marijuana stacked in the motor home. One of Washman’s minor children who was present in the motor home told the agents that her father had transported marijuana before in the same manner.

Washman was arraigned on April 28, 1994, and entered a plea of not guilty. On June 21, 1994, he entered a change of plea to guilty and signed a plea agreetiient in which the government agreed to make a recommendation of 60-63 months incarceration. Before sentencing Washman asked the court to allow him to withdraw his plea of guilty. Washman argued that a withdrawal of his guilty plea was justified because he might meet the criteria for a reduced sentence below the mandatory minimum under Section 80001 (the “safety valve” provision codified at 18 U.S.C. § 3553(f)) of the recently promulgated Violent Crime and Control Act of 1994.

Judge Browning denied Washman’s motion to withdraw his guilty plea and noted that the matter of a reduced sentence under Section 80001 would be addressed at sentencing. At the sentencing hearing on September 30, 1994, the court heard arguments on the applicability of the “safety valve” provision. Judge Browning found that Washman was ineligible for the “safety valve” because he did not cooperate with the government. Washman filed notice of appeal, arguing that the court erred in denying his motion to withdraw his guilty plea. The appeal was successful and the case was remanded for sentencing in United States v. Washman, 66 F.3d 210 (9th Cir.1995) (holding that a defendant may withdraw a guilty plea at any point prior to its formal acceptance by the court, and finding that the court had not accepted Washman’s guilty plea prior to his motion to withdraw.)

On remand, a sentencing hearing was held on February 2, 1996. Resentencing was on the basis of the record of the ease as it stood on September 30, 1994. Judge Browning listened to argument on the “safety valve” issue and then found that Washman did not comply with Section 3553(f)(5). Washman was resentenced to 60 months incarceration with 5 years supervised release to follow.

The main question on appeal is whether § 3553(f) requires Washman to disclose information concerning conduct of which he has never been convicted in order to qualify for relief from the mandatory minimum sentence.

DISCUSSION

A. Standard of Review

The district court’s interpretation and application of the sentencing guidelines is reviewed de novo. United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996). The district court’s factual determination that a particular defendant qualifies for relief under section 3553(f) is reviewed for clear error. Id.

B. Washman’s Argument

The core of Washman’s argument on appeal is that § 3553(f) violates his Fifth Amendment rights against self-incrimination if it requires him to disclose relevant conduct unknown to law enforcement. It is trué that this circuit has held that conditioning a sentence reduction “on admissions of responsibility for conduct of which a defendant was not convicted could violate his Fifth Amendment rights.” United States v. Piper, 918 F.2d 839, 840 (9th Cir.1990).

However, Piper was one of a line of cases dealing with the Fifth Amendment implications requiring an admission of responsibility for uncharged relevant conduct in order to obtain the Acceptance of Responsibility adjustment under a prior version of USSG § 3E1.1. See also United States v. Watt, 910 F.2d 587, 593 (9th Cir.1990) (holding that “in determining a defendant’s acceptance of responsibility, a sentencing court cannot consider against a defendant any constitutionally protected conduct” such as refusing to make a statement to the police or assisting the police in gathering inculpatory evidence).

Section 3553(f)(5) does not raise constitutional concern because it does not mete out additional punishment if a defendant decides not to disclose under § 3553(f)(5). Other circuits have so held. See, e.g., United States v. Arrington, 73 F.3d 144, 149 (7th Cir.1996).

This resolution is consistent with the intent of Congress in enacting the safety valve provision of § 3553(f) — 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 USSG § 5K1.1. See United States v. Ajugwo, 82 F.3d 925, 926 (9th Cir.1996). Section 3553(f) helps to remedy that 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.’” United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996). The intent of Congress would be thwarted if defendants could obtain the benefit of the safety valve yet not disclose their true roles. We conclude that the decision of the trial court did not violate Washman’s Fifth Amendment right against self-incrimination.

The district court did not commit clear error in refusing to reduce Washman’s sentence pursuant to the “safety valve” provision of 18 U.S.C. § 3553(f). The defendant has the burden of proof with respect to any sentence reduction based upon a mitigating factor. United States v. Ajugwo, 82 F.3d at 929. Here, the defendant must show “by a preponderance of the evidence, that [h]e qualified for the safety valve provisions.” Id.; accord Shrestha, 86 F.3d at 940.

Washman did not-, carry his burden of proof on this issue. The evidence showed that when the arrest occurred, one of Washman’s children told the authorities there were other instances that her father had transported marijuana in the same manner before. Washman neither confirmed nor denied that he was involved in any prior instances of transporting marijuana. The record is devoid of any attempt by Washman to either prove or assert that he has no knowledge of any' other instances of marijuana transportation.

For these reasons, the district court should be affirmed. The dissent would dispose of. the ease differently on a theory of statutory interpretation. However, Wash-man did not raise that theory below, and issues not presented to the trial court generally cannot be decided on appeal. See, e.g., United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991). Review is doubly barred because Washman failed to raise the issue on appeal. See, e.g., United States v. Martinez, 967 F.2d 1343, 1348 n. 1 (9th Cir.1992). We see no reason to depart from these well-established rules of appellate review.

AFFIRMED.