United States v. Reid , 139 F.3d 1367 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 97-2787
Non-Argument Calendar
D. C. Docket No. 96-183-Cr-ORL-18
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD CAPTRIC REID,
a.k.a. Bigum,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
(April 29, 1998)
Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
Appellant pled guilty in the district court to a multi-count indictment that charged him
with narcotics and money laundering offenses. He appeals his sentences, contending (1) that the
district court, in determining his offense levels under the Sentencing Guidelines, failed to apply
the safety-valve provision of U.S.S.G. § 5C1.2, as required by U.S.S.G. § 2D1.1 (b) (6), and (2)
that the court should have departed downward from the guideline range in imposing his
sentences. He therefore asks that his sentences be vacated and the case remanded for
resentencing. We begin with appellant’s second point.
Appellant contends that he is entitled to a downward departure because the Immigration
and Naturalization Service has notified him that he will be deported upon his release from
prison, and a downward departure would save taxpayers’ money. We do not review a district
court’s refusal to make a downward departure unless the court, in entertaining a defendant’s
request for a departure, indicates that it lacks the authority to depart. Nothing in this record
indicates that the court thought that it lacked such authority; hence, appellant’s second point is
meritless.
Appellant’s first issue, however, is another matter. The guidelines direct the district
court to decrease a defendant’s offense level by two levels if the offense level is greater than 26
and the defendant meets the criteria set forth in § 5C1.2. U.S.S.G. § 2D1.1 (b) (6). Section
5C1.2 applies if (1) the defendant does not have more than one “criminal history point,” (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 the death of or serious bodily injury to any person,” (4) “the
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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. . . . [T]he 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 burden is on the defendant, of course, to establish these criteria. United
States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997).
We cannot engage in meaningful appellate review of a sentence unless the district court
sets out the facts underpinning the guidelines it applied in fashioning the defendant’s sentence or
the record plainly establishes such facts. In deciding not to apply § 5C1.2 in this case, the
district court, without hearing argument of counsel on the issue, stated only that it did “not feel
the safety-valve applies in this case.” Other than this brief comment, nothing in the record tells
us
why the court concluded that the appellant did not qualify for a § 5C1.2 reduction. Furthermore,
the evidence in the record does not clearly establish that he did not qualify. For example, the
appellant has but one criminal history point; there is no indication that he made threats of
violence or used a firearm in committing the offenses (although a firearm was found during the
search of appellant’s apartment); there is no indication that anyone was injured as a result of the
offenses; and the Government did not establish that appellant was a leader or organizer of the
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criminal activity. Finally, in acknowledging that appellant had provided information to the
authorities, the court did not determine whether he provided all of the information that he
possessed concerning the criminal activity.
In sum, the lack of findings -- explicit or implicit -- on these issues precludes meaningful
appellate review of the safety-valve issue. We therefore vacate appellant’s sentences and
remand the case for further proceedings not inconsistent herewith.
VACATED and REMANDED.