Appeal from the United States District Court for the Central District of California. D.C. No. CR-94-00112-KN. David V. Kenyon, District Judge, Presiding.
Before: J. Clifford Wallace and Thomas G. Nelson, Circuit Judges, and William D. Browning,*fn* District Judge. Opinion by T.g. Nelson.
T.G. NELSON, Circuit Judge:
Yvonne Ajugwo appeals her sentence imposed following her guilty plea to conspiracy to import heroin in violation of 21 U.S.C. § 963 on the grounds that the Government breached the plea agreement when it contested the applicability of U.S.S.G. § 5C1.2(5), the safety valve provision. We have jurisdiction under 18 U.S.C. § 3742(a), and we affirm.
Before we go into the facts and history of this case, we will discuss the Mandatory Minimum Sentencing Reform Act ("MMSRA"), 18 U.S.C. § 3553(f), also known as the "safety valve" provision. Section 3553(f) appears in the sentencing guidelines at § 5C1.2.
Until Congress passed the MMSRA, defendants convicted of certain drug crimes could receive a sentence below the statutory minimum only on the Government's motion to depart downward based on a defendant's substantial assistance to the authorities. See 18 U.S.C. § 3553(e). Congress enacted § 3553(f) to rectify an inequity in this system, whereby more culpable defendants who could provide the Government with new or useful information about drug sources fared better under § 3553(e) than lower-level offenders, such as mules, who typically have less knowledge. See United States v. Arrington, 73 F.3d 144, 146 (7th Cir. 1996); United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995). As the legislative history to the MMSRA states: "Ironically, [ ] for the very offenders who most warrant proportionally lower sentences - offenders that by guideline definitions are the least culpable - mandatory minimums generally operate to block the sentence from reflecting mitigating factors." H.R.Rep. No. 103-460, 103d Cong., 2d Sess., 1994 WL 107571 (1994).
Section 3553(f) allows the sentencing court to disregard the statutory minimum in sentencing first-time nonviolent drug offenders who played a minor role in the offense and who "have made a good-faith effort to cooperate with the government." Arrington, 73 F.3d at 147. Specifically, § 3553(f) provides that a court must impose a sentence pursuant to the guidelines without regard to the statutory mandatory minimum if the court finds that the defendant meets the following five criteria:
(1) defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government 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, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the ...