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United States District Court, S.D. New York

August 12, 2005.


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).

  A. Prior Sentence

  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.

  B. Probation Violation

  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 calculation.

  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, offense level and criminal history category, while related, are not always similarly calculated.

  Vazquez's argument obfuscates the distinction between the Second Circuit's § 2K2.1(a)(1) and § 4A1.1 analysis. For purposes of the decision here, it is worth underscoring the point that the Circuit found that Pedragh's criminal history calculation correctly included the assessment of two points in accordance with § 4A1.1 while the same conduct did not enhance his offense level. Id. at 243 ("In this case, Pedragh's two felony convictions both properly received points under § 4A1.1.").


  For the reasons set forth above, Vazquez's motion for safety valve consideration is DENIED and the Probation Department's criminal history calculation remains in tact.

  The Clerk of the Court is instructed to Close this motion and remove it from my docket.



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