The opinion of the court was delivered by: Judge Blanche M. Manning
Defendant Shamsideen Sokoya entered a blind plea of guilty to one count of distributing more than 100 grams of heroin. See 21 U.S.C. § 841(a)(1). In his plea statement, Sokoya admitted selling 350 grams of heroin to a confidential government informant on January 7, 2005. Sokoya is presently before the court for sentencing.
I. Sentencing Guideline Calculation
In her presentence investigation report, Sokoya's probation officer set forth the following calculations under the 2006 Sentencing Guidelines. Sokoya's base offense level (and adjusted offense level) is 26 based upon his delivery of between 100 and 400 grams of heroin. See U.S.S.G. § 2D1.1(c)(7). From that, the probation officer subtracted two levels for acceptance of responsibility, but did not credit him with the additional level for timely notifying the government of his intention to plead guilty because Sokoya did not do so until the morning of his trial. The resulting total offense level is 24. Sokoya has no criminal history, so his sentencing range based upon an offense level of 24 and a criminal history category of I is 51 to 63 months. However, by statute Sokoya is subject to a minimum term of imprisonment of 60 months, so his actual sentencing range is 60-63 months. He is not eligible for probation by statute. See 18 U.S.C. § 841(b)(1)(B). He is also ineligible for probation because his guideline range is in zone D. See U.S.S.G. 5B1.1, comment. (n.2).
In his sentencing memorandum, Sokoya argues in favor of two adjustments to his offense level that the probation officer did not address: (1) a two-level reduction under the safety valve provision, see U.S.S.G. § 5C1.2; and (2) a two-level reduction for being a minor participant, see U.S.S.G. § 3B1.2(b). At sentencing, the government argued against application of the safety valve provision and, because Sokoya has been less than forthright about the circumstances surrounding the instant offense, asked that he be denied the two-level credit he received under the probation officer's calculation for acceptance of responsibility, see U.S.S.G. § 3E1.1.
Sokoya contends that he is entitled to safety valve relief under U.S.S.G. § 5C1.2 because (1) he has no criminal history points, (2) his crime did not involve threats or firearms, (3) his crime did not result in death or serious bodily injury, (4) he was not an organizer or leader, and (5) he has provided all the pertinent information he has to the government. If he qualifies for safety-valve relief, Sokoya would escape the effect of the minimum 60-month sentence and would be entitled to an additional two-level reduction under U.S.S.G. § 2D1.1(b)(7).
In its version of events, the government agrees that Sokoya meets the first four criteria for safety valve relief. However, the government and Sokoya disagree whether he met the final requirement that he provide all pertinent information to the government. Sokoya admittedly did not offer much information during his proffer, except that he obtained the heroin for the confidential informant only because the informant repeatedly pleaded for his help. According to Sokoya, he finally gave in to the informant's pleas because he felt sorry for him, and obtained the heroin from a single source with no expectation of being paid for his services. Sokoya contends that his lack of useful information to provide to the government should not be held against him because the "fact the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement." Sokoya Sentencing Memorandum at 3-4.
At sentencing, the government presented as a witness Justin Williams, the special agent who investigated Sokoya. Williams testified that Sokoya knew much more than he let on during his March 27, 2007, proffer. For instance, Williams testified about recorded telephone conversations between Sokoya and a confidential informant for the government during which Sokoya asked about his compensation for facilitating the heroin sale. Specifically, according to transcripts of the conversation, he asked:
Sokoya: What is in it for me? What are you going to add for my own gain? Informant: I am going to add 250 each for your gain.
Informant: 250 each will be your own gain. 250. 250 - - - 250.
Sokoya: [unintelligible]. Can't you pay more than that?
Informant: Big brother, I cannot pass 300. You heard.
Government's Exhibits for Sentencing at 14. According to Williams, Sokoya negotiated not only his compensation, but also the sales price for the heroin:
Informant: Can you reduce the price for me? . . .
Sokoya: Aha. Aha. How much were you expect[ing] it to be? Informant: [unintelligible]. Can you reduce the price for me?
Informant: I am just asking you. So.
Sokoya: You know - - - I don't know what you are talking about anyway. . . .
Informant: [unintelligible]. Can you do it for me?
Sokoya: [unintelligible]. I was even going to ask you to increase it.
Agent Williams also referenced passages from the transcript in which Sokoya allegedly discussed obtaining the ...