The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
This case raises an interesting question of first impression. The defendant pleaded guilty to Count One of a Two Count indictment charging him with importing heroin into the United States in violation of 21 U.S.C. § 952(a). It is not disputed that the net weight of the heroin, secreted in various pieces of camera equipment, was 5.03 kilograms. That amount of heroin would have triggered 21 U.S.C. § 960(b)(1)(A) which provides for a term of imprisonment of not less than ten years and not more than life.
The government, however, agreed to permit the defendant to plead to an offense punishable by a term of imprisonment of not more than twenty years, with no mandatory minimum, pursuant to 21 U.S.C. § 960(b)(3). The plea agreement, entered into between the parties provided, among other things, that the defendant would not appeal a sentence imposed within or below the applicable Sentencing Guidelines range as determined by the court, even if that sentence exceeded the range estimated in the agreement to be 70-87 months.
The presentence report calculated the total offense level to be 27 which, with a criminal history category of I, established a guidelines range of 70-87 months as predicted by the plea agreement. The defendant objected to the report insofar as it failed to include a two-level "safety valve" reduction pursuant to U.S.S.G. § 2D1.1(b)(4). The Probation Department concurred in that position and reduced the total offense level to 25, establishing a guidelines range of 57 to 71 months. The government also concurred in that view and in addition, urged an additional one-level adjustment because the defendant agreed to be voluntarily deported. The total offense level would then be reduced to 24 and a guidelines range of 51 to 63 months. Viewed in context, an offense punishable by a mandatory minimum of 120 months (a guidelines level of 32) and assuming a two-level "safety valve" adjustment yielding an offense level of 30 or 97-121 months, is thus reduced six levels to 24 and a guidelines range of 51 to 63 months..
I questioned the applicability of the safety valve provisions to this case and declined to invoke it, believing as I do that the extraordinary result thus produced could not have been intended either by Congress or by the Sentencing Commission ("the Commission") and is arguably not supported by a reading of the relevant provisions of the Sentencing Guidelines, namely, U.S.S.G. §§ 5C1.2 and 2D1.1(b)(4).
The sparse legislative history research revealed begins with §§ 80001(a) and (b) of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 1994 HR 3355, which reads, in relevant part, as follows:
Sec. 80001. LIMITATION ON APPLICABILITY OF MANDATORY MINIMUM PENALTIES IN CERTAIN CASES (Emphasis added)
(a) In General . . . Section 3553 of title 18, United States Code, is amended by adding at the end the following new subsection:
(f) LIMITATION ON APPLICABILITY OF STATUTORY MINIMUMS IN CERTAIN CASES. (Emphasis added).
That section then continues to prescribe the five criteria in that statute which has come to be referred to as the "safety valve" provision.
Sec. 80001(b) directs the Sentencing Commission to promulgate guidelines or amendments to guidelines, to carry out the purposes of § 80001(a):
(b) In the case of a defendant for whom the statutorily required minimum sentence is 5 years, such guidelines and amendments to guidelines . . . shall call for a guide level range in which the lowest term of imprisonment is at least 24 months.
The congressional direction to the Commission in § 80001(b) in this regard is instructive. Although not articulated in legislative history, upon analysis it is a further indication of the clear intent of the Act to provide a "safety valve" for less culpable offenders who would otherwise be subject to a statutorily mandated minimum, viz.: The guideline offense level reflecting a statutorily required minimum sentence of 5 years would be 26 which, given a criminal history category of I, is 63-78 months. The less culpable offender is typically a courier whose role is deemed to be minimal warranting a 4 level decrease and whose acceptance of responsibility warrants a ...