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Criminal history points cannot be adjusted

By: dmc-admin//September 3, 2003//

Criminal history points cannot be adjusted

By: dmc-admin//September 3, 2003//

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A district court cannot grant a “safety valve reduction” to a defendant’s sentence, even if his criminal history category overstates the seriousness of his prior offenses, the Seventh Circuit held on Aug. 22.

Victor Vega-Montano pleaded guilty to one count of conspiracy to distribute in excess of 500 grams of mixtures containing cocaine, a charge that arose from his participation in several conversations leading up to the conspirators’ anticipated sale of, eventually, up to 50 kilograms of cocaine to an undercover officer. Only one kilogram was actually sold, as part of a three-kilogram total deal.

At sentencing, Montano made two objections to the Presentence Report. First, he argued that the drug quantity calculation was overstated because it included sales of drugs that were not reasonably foreseeable to him. Second, he argued that his criminal history category was overstated, and the district court erred by refusing to grant a “safety valve reduction” and depart from the statutory minimum sentence, pursuant to 18 U.S.C. 3553(f) and U.S.S.G. 5C1.2.

The district court denied both of Montano’s objections. The court concluded that Vega-Montano was responsible for three kilograms of cocaine, even though only one was actually sold, because the delivery of the one kilogram made the deal sufficiently advanced that a planned later sale of two more kilograms was foreseeable to all of the conspiracy’s participants.

The court also concluded that it had no authority to grant a “safety valve” reduction. Vega-Montano had only one prior conviction — a 1997 state court conviction for driving under the influence, resulting in one criminal history point.

However, he did not begin serving his term of supervision for the conviction until 2001. Thus, at the time of the current offense, he was on supervision, resulting in an additional two criminal history points.

What the court held

Case: U.S. v. Vega-Montano, No. 02-4032

Issue: Can a district court grant a safety valve reduction where the criminal history category overstates the seriousness of his prior offenses?

Holding: No. District courts have no authority to revisit state court proceedings.

Although the resulting sentencing guidelines permitted a lower sentence, the court imposed the five-year mandatory minimum.

Because Vega-Montano had more than one criminal history point, the court concluded Vega-Montano failed to qualify for a sentence below the minimum mandatory, pursuant to 18 U.S.C. 3553(f). Vega-Montano appealed, but the court of appeals affirmed in a per curiam decision.

Drug Quantity

First, the court held that three kilograms of cocaine were properly attributable to Vega-Montano, even though only one kilogram was actually sold.

The court concluded, “Montano’s lengthy and significant participation in the conspiracy undermines his attempts to minimize his involvement in the conspiracy and argue that he could not have reasonably foreseen the three-kilogram transaction.

First, as early as Sept. 8, 2001, Montano and the other conspirators participated in a conversation with the undercover officer concerning an anticipated sale of 50 kilograms of cocaine. At that time, Montano stated that he would be able to acquire up to 200 kilograms of cocaine, and he drove from the meeting to a supplier in an attempt to pick up several kilograms of cocaine for delivery to the officer.

Second, even though that initial transaction was never completed, Montano was present one month later at all meetings where the conspirators and the undercover officer negotiated the three-kilogram deal that was the subject of his conviction. At those meetings, the undercover officer and the conspirators decided that the delivery of one kilogram of cocaine was intended as a showing of good faith toward the completion of the three-kilogram transaction. Moreover, Montano has offered no argument, as required by sec. 2D1.1, that the discussion of three kilograms was idle talk, or that the conspirators could not acquire three kilograms of cocaine for delivery to the officer.”

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Seventh Circuit Court of Appeals

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Case Analysis

Safety Valve

The court then held that the sentencing court correctly concluded that it had no authority to grant a safety valve reduction, because Vega-Montano had three criminal history points, and that could not be changed.

The district court had agreed with Vega-Montano that the four-year delay between his conviction and the commencement of his supervision was too long.

Nevertheless, the court concluded, “I do not think I have any discretion to revisit the state hearing and find some condemnation for the failure … of the state to move more promptly … I mean they probably should have [but the] criminal history category is what it is and … accurately reflects his circumstance.”

The court concluded, “The district court could apply the safety valve only if it adjusted Montano’s criminal history points, but it had no authority to revisit the state court proceeding. But district courts cannot change the calculations that form the basis of a sentencing range in order to evade the statutory minimum sentences. Many other courts of appeal have agreed that district courts lack discretion to alter a defendant’s criminal history points so as to render him eligible for a safety valve departure (cites omitted).”

Accordingly, the court affirmed the sentence.

Click here for Case Analysis.

David Ziemer can be reached by email.

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