The opinion of the court was delivered by: RICHEY
On July 18, 1996, the defendant in the above-captioned case came before the Court for resentencing. After hearing argument from counsel for the defendant, counsel for the government, and the defendant himself, and after consideration of the pleadings, and the entire record herein, the Court imposed sentence on that day. The parties stipulated at that time that the Court would set forth its reasoning in a subsequent Memorandum Opinion, which the Court now does.
The defendant was charged with and convicted of conspiracy to distribute more than fifty grams of cocaine base ("crack") in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(iii) (Count I); aiding and abetting the distribution of crack in violation of 21 U.S.C. §§ 841(a)(1), § 841(b)(1)(A)(iii), and 18 U.S.C. § 2 (Count II); and aiding and abetting the distribution of crack within one thousand feet of a school in violation of 21 U.S.C. §§ 841(a)(1), 845(a) and 18 U.S.C. § 2 (Count III). The defendant was sentenced by this court to 175 months of imprisonment and five years of supervised released on each of the first two counts and 175 months of imprisonment and ten years of supervised release on the third count, all prison terms to run concurrently. Edmonds appealed. The Court of Appeals affirmed Edmond's conviction on counts one and three, vacated his conviction on count two, and remanded his case for resentencing on count one.
At the resentencing, the defendant argued for the application of 18 U.S.C. § 3553(f), the so-called "safety valve" provision, on Counts I and III. If applied, the safety valve provision provides for the application of the United States Sentencing Guidelines ("guidelines") sentence without regard to the statutory mandatory minimum. The defendant also argued that he was eligible for a downward departure under § 5K2 of the guidelines. Finally, the defendant argued that the disparity in sentencing upon conviction for crack cocaine as distinguished from powder cocaine is unconstitutional.
I. THE SAFETY VALVE PROVISION IS INAPPLICABLE HERE.
A. The safety valve provision does not apply to Count I because the defendant does not meet the fifth criterion for application of the safety valve provision.
The government argues that the defendant has not complied with the fifth criterion because to date, the only information provided to the government was the defendant's declaration of innocence and no other information or evidence. The Court agrees with the government that the defendant has not met the fifth criterion and, thus, that the safety valve does not apply to Count I.
B. The safety valve provision does not apply to Count III because resentencing on Count III is beyond the scope of the remand and because the defendant does not meet the fifth criterion for application of the safety valve provision.
The defendant argues that this Court has discretion to, and should, resentence him on Count III pursuant to the safety valve provision. The defendant has cited authority from other Circuits for the proposition that the Court, in its discretion, may reconsider the entire "sentencing package," not only the unlawful portion. While reconsideration of an entire "sentencing package" may be appropriate under some circumstances, it clearly is not appropriate in the present case.
In its opinion in this case, the Court of Appeals stated: "The 175 month prison term is proper as to count three because the schoolyard statute carries an enhanced penalty. . . . For the foregoing reasons, we affirm Edmonds's conviction on counts one and three, vacate his conviction on count two and remand his case for resentencing on count one." 315 U.S. App. D.C. 18, 69 F.3d 1172 at 1178. The mandate of the Court of ...