The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
On May 2, 2005, Defendant, Cleofas Contreras Vazquez
("Vazquez"), was convicted by a jury of conspiracy to distribute
and possess with intent to distribute five kilograms or more of
cocaine in violation of 21 U.S.C §§ 812, 841(a)(1), and
841(b)(1)(a). Following conviction, the United States Probation
Department prepared a Pre-Sentence Report ("PSR") which, inter
alia, recommended the assignment of one criminal history point
for a sentence received on January 16, 2004, based on a
conviction for reckless driving, and two additional points
because Vazquez was on probation during the course of the
conspiracy. (PSR ¶¶ 42; 46.) The Government had declined a safety
valve proffer and, on July 21, 2005, Vazquez moved this Court to
consider his eligibility for the "safety valve" adjustment under
U.S.S.G. § 5C1.2. The record includes an extensive letter brief
from defense counsel, a response (much shorter) from the
Assistant United States Attorney and oral argument. The matter
was sub judice on July 25, 2005. For the reasons set forth
below, Vazquez is not eligible for safety valve consideration.
Vazquez argues that neither the single criminal history point
for the January 16, 2004 conviction nor the two-point increase
(as a consequence of the defendant being on probation) should be
included in any criminal history and, by extension, any safety
valve calculation. Vazquez argues that the criminal history point
assessed for the January 16, 2004 conviction should not be
considered in any safety valve calculation because the sentence was imposed after the conspiracy charged in the
indictment began but before any arrests and does not count.
Second, Vazquez maintains that the two additional points for
being on probation when this crime was committed was also wrong
for the same reason, i.e., if the first criminal history point
was unjustly added then on similar reasoning the second
additional history point were unjustly added. (Ltr. dated Jul.
21, 2005, from Ianuzzi, Att'y for Def. Vazquez, at 2).
The "safety valve" exception to statutory minimum mandatory
sentences provides that a defendant convicted of certain drug
offenses may be afforded more lenient treatment. See United
States v. Jeffers, 329 F.3d 94, 97-98 (2d Cir. 2003). However, a
defendant is eligible for safety valve relief only if he
satisfies the five criteria set forth in
18 U.S.C. § 3553(f)(1)-(5). In particular, he or she must demonstrate that
"the defendant does not have more than 1 criminal history point,
as determined under the sentencing guidelines."
18 U.S.C.A. § 3553(f)(1); see United States v. Nuzzo, 385 F.3d 109, 113 n.
15 (2d Cir. 2004). The defendant that seeks safety valve relief
shoulders the burden of proving that the five requirements set
forth by the Sentencing Guidelines, including criminal history,
are satisfied by a preponderance of the evidence. See United
States v. Tang, 214 F.3d 365, 371 (2d Cir. 2000) ("A defendant
bears the burden of proving that he has met all five safety valve
criteria."); United States v. Conde, 178 F.3d 616, 620 (2d Cir.
1999) (holding that relevant facts need be established by a
preponderance of the evidence).
In general, criminal history points are assessed on the basis
of "prior sentences," except for specific misdemeanors and petty
crimes. U.S.S.G. § 4A1.1 ("§ 4A1.1"); 4A1.2(c); see United
States v. Groves, 369 F.3d 1178, 1186 (10th Cir. 2004); United
States v. Dobovsky, 279 F.3d 5, 7 (1st Cir. 2002). "Prior
sentence" is defined to include "any sentence previously imposed
upon adjudication of guilt, whether by guilty plea, trial, or
plea of nolo contendere, for conduct not part of the instant
offense." United States v. Loudon, 385 F.3d 795, 799 (2d Cir.
2004) (citing to U.S.S.G. § 4A1.2(a)(1)).
Pursuant to the Second Circuit's decision in United States v.
Lopez, 349 F.3d 39 (2d Cir. 2003), "prior sentence"
determinations are not conduct dependent but, rather, sentence dependent. There, a defendant appealed a district
court's criminal history calculation that included a Texas
conviction which occurred after the conduct underlying the
instant conviction. Id., 349 F.3d 41. Here, at best (best for
the Defendant) the conduct was concurrent. In Lopez, the Second
Circuit concluded that the district court "properly considered
the Texas sentence a `prior sentence' for the purposes of
calculating [appellant's] criminal history score because it was
imposed prior to sentencing on the instant offense." Id. at
41-42. The Second Circuit reasoned that there is "no exception
for a prior sentence imposed for a crime that took place after
the crime currently before the sentencing judge," and for the
purposes of "calculating criminal history under the Sentencing
Guidelines, the term `prior sentence' is not directed at the
chronology of the conduct, but the chronology of the sentencing."
Id. (citing to United States v. Flowers, 995 F.2d 315,
317 (1st Cir. 1993). Here, the conduct, conviction, and
sentencing occurred prior or during the crime for which Vazquez
is now being sentenced. Worse yet for the Defendant's argument,
the law permits district courts to count any prior sentence
imposed on a defendant for conduct he engaged in even when it
occurred after the conduct for the instant offense provided
that the prior sentence (1) "was for conduct other than conduct
that was part of the instant offense," and (2) was imposed "prior
to sentencing on the instant offense." U.S.S.G. § 4A1.2 cmt. n.
1; see e.g., United States v. Espinal, 981 F.2d 664, 668
(2d Cir. 1992).
In short, all that matters is that Vazquez was sentenced for
conduct unrelated to the instant offense and prior to
sentencing on the instant offense. See Espinal,
981 F.2d at 668. That is the case here.
Vazquez was clearly on probation while the crime for which he
is being sentenced here was in progress. Vazquez was sentenced to
36 months probation for reckless driving on January 16, 2004.
Assuming his probation commenced immediately after his two day
incarceration, Vazquez's probation would run from late January
2004 through January 2007. Vazquez was convicted on May 2, 2005
for the crime of conspiracy which ran from January 2003 until
June 2004. (PSR ¶ 6.) As such, it is clear that the Probation
Department correctly assessed two criminal history points for
violation of probation. C. Prior Felony Convictions
Vazquez also misconstrues the meaning of the Second Circuit's
decision in United States v. Pedragh, 225 F.3d 240 (2d Cir.
2000). According to Vazquez, the PSR's inclusion of a previous
conviction for "[p]ossession of a forged instrument in the Second
Degree" in Creek County Court, Colorado was in contravention of
the Second Circuit's decision in Pedragh and should "not be
counted in his criminal category history." (Ltr. dated Jul. 21,
2005, from Ianuzzi, Att'y for Def. Vazquez, at 5-6) (citing to
PSR ¶¶ 42 43.) While the conviction constitutes a "felony
conviction" for the purposes of U.S.S.G. § 2K2.1(a) ("§
2K2.1(a)"), Vazquez contends once again that the plain meaning of
§ 2K2.1(a) only refers to felony convictions occurring before
the commission of the instant federal offense, that the Colorado
conviction occurred during or after the commission of the
federal offense and, therefore, the PSR impermissibly included
the Colorado conviction in Vazquez's criminal history
A close read of Pedragh shows that Vazquez's analysis misses
the mark. In Pedragh, the Second Circuit was asked to interpret
the meaning of § 2K2.1(a), which suggests that a base offense
level of 20 is appropriate if the defendant "had one prior felony
conviction of either a crime of violence or a controlled
substance offense." Pedragh, 225 F.3d at 243. While the Second
Circuit reasoned that felony convictions that post-dated the
offense conduct at issue do not constitute "prior felony
convictions" for the purpose of enhancing the base offense
level under § 2K2.1(a)(1), there is no holding to the effect
that such a felony conviction is not included in the defendant's
criminal history level under § 4A1.1, Id., at 247-8, which is
the Defendant's argument here. The Second Circuit's decision
rested on the differing purposes behind Chapter 2 and Chapter 4
of the Sentencing Guidelines. Chapter 2 focuses on conduct, in
particular, the offense. Id. at 246. Conversely, Chapter 4
focuses on the offender. Id. Therefore, the Second Circuit
concluded, "it makes sense to consider under the `offense'
rubric, those convictions which defined the defendant's status at
the time he committed the crime, and under the `offender' rubric,
all aspects of his criminal history." Id. (citing to United
States v. Leviner, 31 F. Supp. 2d. 23, 28 (D. Mass. 1998)). defined the defendant's status at the time he committed the
crime, and under the `offender' rubric, all aspects of his
criminal history." Id. (citing to United States v. Leviner,
31 F. Supp. 2d. 23, 28 (D. Mass. 1998)).
Applying these principles to Pedragh, the Second Circuit held
that the district court improperly assigned the defendant a base
offense level of 26 but affirmed its determination that the
Probation Department properly included the defendant's two prior
felony convictions for selling crack cocaine and for attempted
robbery. Id. at 248. Put another way, ...