provides that the Court shall disregard statutory mandatory minimum sentences applicable to certain offenses if five criteria are met. The fifth criterion, 18 U.S.C. § 3553(f)(5), requires that "not later than the time of the sentencing hearing, the defendant [must have] 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 of plan . . . ." The defendant asserts that he provided such information and evidence in his testimony at his first trial, which ended in a hung jury. To the extent the government feels he has not satisfied this requirement, the defendant has requested a debriefing prior to the resentencing hearing.
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 Appeals in this case is clear. To resentence on Count III would be to exceed the scope of that mandate.
Furthermore, for the same reason that the safety valve provision does not apply to the defendant with respect to Count I, it would not apply with respect to Count III. Namely, the defendant has not met the fifth criterion of 18 U.S.C. § 3553(f).
II. A DOWNWARD DEPARTURE IS NOT WARRANTED UNDER § 5K2.
Under § 5K2 of the guidelines, a court may impose a sentence outside the applicable guideline range if the court finds the existence of a factor which "the Commission has not been able to take into account fully in formulating the guidelines." The defendant argues that the disparity in sentencing for crack cocaine as opposed to powder cocaine is a ground for departure. However, this Circuit has considered and rejected that argument. United States v. Anderson, 317 U.S. App. D.C. 192, 82 F.3d 436 (D.C. Cir. 1996). Also, the defendant argues that his family circumstances, namely, the burdens his incarceration places on his wife and son, warrant departure. However, family responsibilities are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. U.S.S.G. § 5H1.6 (1995). Although the defendant's family faces hardship, to which the Court is sympathetic, the defendant's family circumstances are not of an extraordinary nature or degree that would warrant departure.
III. THE COURT IS WITHOUT JURISDICTION TO CONSIDER THE DEFENDANT'S CONSTITUTIONAL CHALLENGE TO THE GUIDELINES.
The defendant, pro se,
argued at the July 18, 1996 hearing that the disparity in sentencing for a crack cocaine offense as opposed to a powdered cocaine offense is unconstitutional. This argument was considered in connection with the defendant's § 2255 Motion, which was denied by the Court's Order dated June 17, 1996. The defendant has appealed that Order. Therefore, the Court of Appeals, and not this Court, has jurisdiction over that issue. Furthermore, while the Court recognizes that the defendant offered additional legal arguments at the resentencing hearing on this issue, those arguments are without legal merit.
For the foregoing reasons, the defendant's arguments are without merit. Accordingly, the Court sentenced the defendant on July 18, 1996 to a prison term of 151 months as to Count 1 and a prison term of 175 months as to Count 3, to run concurrently by the count. The sentence of the Court is fully set forth in the Order of July 19, 1996, which is attached hereto and is made a part hereof.
July 23, 1996
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE