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UNITED STATES v. CABELL

June 15, 1995

UNITED STATES OF AMERICA
v.
WILLIAM CABELL



The opinion of the court was delivered by: CHARLES R. RICHEY

 This Memorandum shall constitute the Court's findings of fact and conclusions of law with respect to the sentence of William Cabell to sixty months imprisonment, to be followed by a supervised release term of 5 years thereafter together with a special assessment of $ 50.00 due and payable within 6 months of June 15, 1995.

 I. BACKGROUND

 The Defendant in the above-entitled case is a 43 year old high-school graduate from Mount Vernon, New York. On May 24, 1994 he was arrested at Union Station in Washington, D.C. after detectives found drug paraphernalia and narcotics in his possession. The Defendant had received $ 300.00 for acting as a courier to transfer the drugs involved from New York to North Carolina. Upon his arrest he stated that he did this to support his heroin addiction. In this case, the drugs found on the Defendant's possession after analysis by the Drug Enforcement Administration laboratory were found to contain 249.2 grams of cocaine base, with a purity level of 72%, and 0.66 grams of heroin, with a purity level of 84%.

 The Probation Office converted the two drugs found to a marijuana equivalent even though it involved heroin and cocaine base. This leads to a base level offense of 34.

 The Defendant began using drugs at age 16 and has been using the substance for over 27 years and has, apparently, been participating in a methadone treatment program in Mount Vernon, New York. The Defendant has also a minimal employment record and after his prompt plea of Guilty to unlawful possession with intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A), following his arrest in this case, he endeavored to cooperate with the United States to provide substantial assistance in accordance with the requirements of 18 U.S.C. § 3553(e) and Chapter 5K1.1 of the United States Sentencing Commission Guidelines. The Defendant argues that he complied with the mandate of the statute and Chapter 5 of the Guidelines and the Government disagrees.

 As a result of the failure of the Government to agree that the Defendant had provided the Government with all the information at his disposal qualifying him for the substantial assistance reduction, his Counsel arranged for a polygraph examination, the results of which were admitted into evidence before the Court on May 19, 1995. No evidence regarding its conclusions was presented by the Government at such Hearing. The Court makes the following findings of fact by a preponderance of evidence. See USSG § 6A1.3 Commentary.

 II. DISCUSSION

 A. THE COURT FINDS THAT THE STATUTORY MANDATORY MINIMUM IS INAPPLICABLE BECAUSE THE DEFENDANT QUALIFIES FOR THE SAFETY VALVE PROVISION.

 For the Court to impose a Guideline sentence below the mandatory minimum term of imprisonment of 108 to 135 months for the offense to which the Defendant has pleaded, the Defendant must satisfy the "safety valve" provision of § 5C1.2 as set forth in 18 U.S.C. § 3553(f)(1)-(5). Of the five criteria set forth in 18 U.S.C. § 3553(f), the Government does not dispute that Defendant meets the first four criteria: (1) the Defendant has only 1 criminal history point; (2) the Defendant did not use violence or posses a weapon in this offense; (3) the Defendant did not cause a known death or serious injury through this offense, and; (4) the Defendant was not classified as a leader under the Guidelines or engaging in a continuing criminal enterprise. (Govt.'s Sent. Mem. at 3-4).

 However, the Government and the Defendant disagree as to whether the Defendant meets the fifth requirement, that of truthfully providing information about the offense. The Court concludes that the Defendant does meet such requirement.

 With respect to the fifth criterion set forth in 18 U.S.C. § 3553(f)(1)-(5), the determination as to whether a "'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 of a common plan' . . . is to be made by the Court." United States v. Aristizabal, 1994 U.S. Dist. LEXIS 17441, 1994 WL 689089 (S.D. N.Y. December 8, 1994) (quoting U.S. Sent. Guidelines Sec. 5C1.2); accord United States v. Buffington, 879 F. Supp. 1220, 1222 (N.D. Ga. 1995). On May 16, 1995, the Defendant was interviewed by polygraph examiner Walter F. Atwood. At that time, the Defendant indicated that he had been truthful with the police and that he was not withholding any information regarding this case. (Report of Polygraph Exam. of Def. by Walter F. Atwood on May 16, 1995). The results of his polygraph test indicate that Mr. Cabell successfully passed the polygraph examination. The examination revealed that he has provided law enforcement agents with truthful information and that he was not withholding any information regarding this case. (Report of Polygraph Exam. of Def. by Walter F. Atwood on May 16, 1995). Accordingly, the Court finds that the Defendant is, and was, truthful in providing all the information at his disposal.

 The polygraph examination indicated Plaintiff's truthfulness. The Government does not dispute the satisfaction of the other criteria, namely that the Defendant has no more than 1 criminal history point, that the crime herein did not involve the use of violence or a firearm and did not result in death or serious bodily injury because he was not an organizer, leader, manager, or supervisor of others in the crime or engaged in a continuing criminal enterprise.

 It should be noted that Section 3553(f) was enacted in 1994 to limit the application of statutory mandatory minimum sentences in cases just like this. Thus, the Court finds that the Defendant meets the criteria for the "safety valve" provision of 18 U.S.C. § 3553(f)(1)-(5) as set forth in § 5C1.2, thereby qualifying the Defendant for a sentence below the mandatory minimum. Accordingly, the Court is not constrained by the ten-year mandatory minimum and the base offense level is 34 under the Sentencing Guidelines.

 B. THE COURT FINDS THAT THE DEFENDANT IS ENTITLED TO A ADJUSTMENT UNDER USSG § 3E1.1(a) AND § 3E1.1(b) BECAUSE OF HIS FULL ACCEPTANCE OF RESPONSIBILITY

 Under USSG § 3E1.1(a) the Court may decrease a defendant's offense level by two levels "if the defendant clearly demonstrates acceptance of responsibility for his offense." USSG § 3E1.1(a). Because the Court finds that the Defendant has fully accepted responsibility for his offense, a two level adjustment is warranted. After application of USSG § 3E1.1(a), the Defendant's offense level is therefore 32.

 Under USSG § 3E1.1(b), a defendant who qualifies for an adjustment under § 3E1.1(a), whose offense level determined prior to the operation of § 3E1.1(a) is 16 or greater, and who has

 
assisted authorities in the investigation or prosecution of his own misconduct by [either] (1) timely providing complete information to the government concerning his involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid ...

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