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United States v. Cobblah

July 1, 1997

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

XAVIER COBBLAH, ALSO KNOWN AS BASHEER, ALSO KNOWN AS VIVI, ALSO KNOWN AS XAVIER RICHTER,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 94 CR 528 Harry D. Leinenweber, Judge.

Before CUMMINGS, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED NOVEMBER 6, 1996

DECIDED JULY 1, 1997

Xavier Cobblah was convicted, pursuant to his plea of guilty, of one count of conspiracy to possess with intent to distribute heroin. See 21 U.S.C. sec. 846. The district court imposed a sentence that included the statutory mandatory minimum term of imprisonment of 120 months. In this direct appeal, Mr. Cobblah now contends that the district court committed reversible error during the sentencing process. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I. BACKGROUND

Xavier Cobblah was arrested on August 10, 1994 as he left the hotel room of a confidential informant. At the time of his arrest, he was carrying two suitcases with heroin sewn in the linings. Shortly thereafter, he gave a written statement and agreed to cooperate with the government. He later gave two formal proffers to the government. Under the terms of these proffer agreements, Mr. Cobblah was required to provide the government with a completely truthful statement of his activities. In return, Mr. Cobblah understood that the government would move for a downward departure of one-third off the minimum of the base offense level. The agreements further provided that, in the event of his prosecution, statements made during the proffer would not be used against him in the government's case-in-chief or in the aggravation of his sentence. On the other hand, if Mr. Cobblah testified contrary to the substance of the proffer or otherwise took a position inconsistent with the proffer, the government was free to use the substance of the proffer for any purpose at sentencing.

In the proffer interviews, Mr. Cobblah said that Naveed, a person who had offered to help finance Mr. Cobblah's beauty shop in California, had asked Mr. Cobblah to pick up some bags for him at a hotel. Mr. Cobblah maintained that he did not know that the bags he was to pick up contained heroin until he met with the confidential informant. He denied any previous involvement in narcotics trafficking. He further cooperated in the investigation of the conspiracy by making recorded phone calls to Naveed and meeting with Naveed's contact in the United States, Khan. *fn1 The meeting took place in a surveilled hotel room. Mr. Cobblah delivered three plastic bags of a white powdery substance weighing about 3,000 grams; Khan then was arrested. Additionally, Mr. Cobblah offered to set up a number of 100 to 200 gram heroin purchases if the agents would return his phone book.

Mr. Cobblah was eventually indicted by the grand jury in a two-count indictment. The first count charged him with conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. sec. 846; the second count charged him with possession with intent to distribute heroin in violation of 21 U.S.C. sec. 841. He entered into a written plea agreement with the government and, pursuant to its terms, pleaded guilty to the first count.

II. DISCUSSION

The standards of review that govern our review of sentencing matters are well established. We review the findings of fact of the district court for clear error. Interpretations of the sentencing guidelines are questions of law, and our review is de novo. See United States v. Young, 34 F.3d 500, 504 (7th Cir. 1994).

A.

Mr. Cobblah first contends that the district court erred in its failure to impose a sentence below the statutory mandatory minimum sentence. He submits that he is eligible for such treatment under the so-called "safety valve" provision of U.S.S.G. sec. 5C1.2./2 See United States v. Ramirez, 94 F.3d 1095, 1099 (7th Cir. 1996). The district court refused to sentence him under this provision because it determined that Mr. Cobblah had failed to meet the fifth criterion of supplying the government with a truthful statement of "all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." Mr. Cobblah advances two arguments. He submits first that the government ought ...


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