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UNITED STATES v. COOKS

September 11, 1996

UNITED STATES OF AMERICA
v.
JOHN M. COOKS, Defendant.



The opinion of the court was delivered by: RICHEY

 INTRODUCTION

 Before the Court is the defendant's Motion To Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255. The defendant pled guilty to conspiracy to possess with the intent to distribute fifty (50) grams or more of cocaine base. On July 31, 1995, the Court sentenced him to sixty (60) months imprisonment. In the present Motion, the defendant argues that, pursuant to Section 80001(a) of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796, 1985-86 (1994) (codified at 18 U.S.C. § 3553(f)) -- commonly referred to as the U.S. Sentencing Guidelines' ("the Guidelines') "safety valve" provision, U.S.S.G. § 5C1.2 -- he is entitled to a reduction in sentence. Upon consideration of the defendant's motion, the opposition thereto, the applicable law, and the entire record in this case, the Court concludes that the defendant is not entitled to a reduction in his sentence. Therefore, the motion by the defendant for a reduction of his sentence shall be denied.

 DISCUSSION

 I. THE DEFENDANT'S § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE MUST BE DENIED BECAUSE THE DEFENDANT HAS NOT SHOWN CAUSE WHY HIS CLAIM WAS NOT ASSERTED AT SENTENCING OR ON DIRECT APPEAL AND HAS NOT SHOWN THAT ACTUAL PREJUDICE RESULTED FROM A FAILURE TO APPLY THE GUIDELINE'S SAFETY VALVE PROVISION.

 When a defendant has failed to raise a claim at sentencing and on direct appeal, that claim is barred from collateral review on a 28 U.S.C. § 2255 petition unless the defendant demonstrates "cause" for his procedural default and "actual prejudice" from the alleged error on which the claim is based. See United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982) (applying "cause and actual prejudice" standard to § 2255 motion to vacate sentence based on defective jury instructions when defendant failed to raise objection at trial or on direct appeal); United States v. Kleinbart, 307 U.S. App. D.C. 136, 27 F.3d 586, 590 (D.C. Cir.) (same), cert. denied, 130 L. Ed. 2d 365, 115 S. Ct. 456 (1994); Garvin v. United States, 882 F. Supp. 68, 70 (S.D.N.Y. 1995) (applying "cause and actual prejudice" standard to collateral attack by the defendant of the term of his incarceration when defendant failed to raise issue on direct appeal).

 The defendant here has not shown cause why he failed to raise the instant claim at sentencing or on direct appeal. *fn1" He simply asserts the claim in the motion currently before the Court, without any explanation for why it was not raised earlier.

 B. The Defendant Has Not Shown That Actual Prejudice Resulted From a Failure to Apply the Guidelines' Safety Valve Provision.

 The defendant has not, and cannot, show that actual prejudice resulted from a failure to apply the Guidelines' safety valve provision. First, the Court was not required to apply the safety valve provision to the offense to which the defendant pled guilty. Second, the defendant does not qualify for downward departure pursuant to the safety valve provision. Third, the defendant fails to show that the Court did not consider the mitigating factors the defendant lists in his Motion.

 
1. The Court Was Not Required To Apply The Safety Valve Provision To The Offense To Which The Defendant Pled Guilty Because The Offense Is Not Within The Provision's Scope.
 
a. Congress enacted the safety valve provision to foster greater coordination between mandatory minimum sentencing and the federal sentencing guidelines.

 In cases in which the Guidelines sentence is higher than the mandatory minimum, "any applicable mitigating factors recognized by the Guidelines operate to provide a proportionally lower sentence than would apply to a similarly situated offender who lacked these mitigating characteristics." H. Rep. 103-460, 103d Cong., 2d Sess. 4 (1994). Ironically, however, prior to the safety valve provision's enactment, "for the very offenders who most warrant proportionally lower sentences -- offenders that by Guideline definitions are the least culpable -- mandatory minimum sentences generally operated to block the sentence from reflecting mitigating factors." Id.

 Congress enacted the safety valve provision in 1994 to correct this anomaly. Under the provision's terms, if a defendant meets the criteria set forth therein, the court is to sentence him in accordance with the applicable Guidelines range "without regard to any statutory minimum sentences that would otherwise apply. " H. Rep. No. 103-460, 103d Cong., 2d Sess. 5-6 (1994) (emphasis added); see United States v. Thompson, 76 F.3d 442, 456 (2d Cir. 1996) (same). Thus, Congress was clear that the danger for which the provision acts as a ...


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