United States of America v. Jermaine Albert Boddie, a/k/a Bodey

PRECEDENTIAL
Filed January 28, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2447
UNITED STATES OF AMERICA
v.
JERMAINE ALBERT BODDIE,
a/k/a Bodey,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 01-cr-00265)
District Judge: Hon. Donetta W. Ambrose
Submitted Under Third Circuit LAR 34.1(a)
January 27, 2003
Before: SLOVITER, RENDELL, Circuit Judges,
and DEBEVOISE, District Judge*
(Filed January 28, 2003)
_________________________________________________________________
* Hon. Dickinson R. Debevoise, Senior Judge, United States District
Court for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The issue presented in this case is whether a district
court has the authority under the Sentencing Guidelines to
apply the safety valve to a defendant whose criminal history
category of II overstated the seriousness of the defendant’s
prior record. This court has not previously spoken to this
issue. Seven other courts of appeals have considered the
issue, and each has held that the statutory language
limiting the availability of the safety valve to defendants
with one criminal history point must govern. We turn to the
facts of this case before considering the legal issue.
I.
BACKGROUND
From the late summer of 1999 until March of 2001,
Appellant Jermaine Boddie and Saunders Mabrey supplied
cocaine to Gregory Armstrong, who distributed about 15
kilograms of the drug in the Western District of
Pennsylvania. Boddie and Mabrey, who were located in San
Francisco, initially met with Armstrong in California, and

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later shipped cocaine to him in food cans sent to a store in
McKeesport, Pennsylvania. Armstrong repackaged and
distributed the cocaine. He paid Boddie and Mabrey
approximately $17,000 per kilogram of cocaine.
Armstrong was arrested in March 2001. He told
authorities that he was still in touch with his suppliers and
that he owed them about $75,000 for the last shipment of
cocaine. In August 2001, the Drug Enforcement
Administration ("DEA") recorded telephone conversations
between Armstrong and Mabrey about their cocaine
dealings and the debt that Armstrong owed. On October 3,
2001, one of Armstrong’s associates who was working as a
confidential informant with the DEA had a recorded
conversation with Mabrey, in which the confidential
informant told Mabrey that the money to repay the debt
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had been gathered. On October 4, 2001, DEA agents
arrested Boddie and Mabrey, who had arrived in
Pittsburgh, Pennsylvania, to collect the $75,000.
On October 31, 2001, a grand jury indicted Boddie and
Mabrey, charging them with conspiracy to distribute and
possess with intent to distribute in excess of five kilograms
of cocaine, in violation of 21 U.S.C. S 846. On February 8,
2002, Boddie and Mabrey pled guilty to the charge
pursuant to a plea agreement in which it was agreed,
among other things, that the quantity of cocaine
attributable to each of them was at least five but less than
15 kilograms. The Government agreed that if Boddie and
Mabrey satisfied statutory requirements, it would
recommend at sentencing that the District Court apply the
safety valve provision of the Sentencing Guidelines,
U.S.S.G. S 5C1.2, and sentence them without regard to the
statutory mandatory minimum penalty.
In Boddie’s Presentence Investigation Report ("PSR"), the
United States Probation Office determined that Boddie has
a criminal history category of II based upon three criminal
history points, including one point for a 1999 conviction for
driving with a suspended license and two points because
the present offense occurred during the period of probation
imposed for the driving violation. The Probation Office also
stated that it appeared that Boddie did not qualify for the
safety valve provision and that he was subject to the
statutory mandatory minimum sentence of 120 months.
Boddie objected to the PSR, claiming that his criminal
history category was overstated based upon the absence of
any involvement with the criminal justice system other
than driving violations, and that he qualifies for the
application of the safety valve provision. The District Court
agreed with Boddie that his criminal history category
overstates the seriousness of his past criminal conduct and
that a criminal history category of I applies. It ruled,
however, that Boddie does not qualify for the safety valve
provision because he has more than one criminal history

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point. The District Court sentenced Boddie to the statutory
mandatory minimum of 120 months imprisonment and 60
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months supervised release, and ordered him to pay a
$100.00 special assessment. This appeal followed. 1
II.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. S 1291 and
18 U.S.C. S 3742(a). Because this appeal concerns the
construction of the Sentencing Guidelines, our standard of
review is plenary. United States v. Swan, 275 F.3d 272, 275
(3d Cir. 2002).
III.
DISCUSSION
Boddie argues that the Sentencing Guidelines do not
prohibit the application of the safety valve provision of
U.S.S.G. S 5C1.2 to an individual whose criminal history is
found to be overstated pursuant to S 4A1.3. He contends
that the determination of whether a defendant has more
than one criminal history point should be made after a
downward departure has been applied.
Under 18 U.S.C. S 3553(f), in cases involving certain drug
offenses, the sentencing court shall impose a sentence
pursuant to the Sentencing Guidelines without regard to
any statutory minimum sentence if the court finds that five
criteria are satisfied. The statute provides:
(f) . . . [T]he court shall impose a sentence pursuant
to guidelines promulgated by the United States
Sentencing Commission under section 994 of title 28
without regard to any statutory minimum sentence, if
the court finds at sentencing, after the Government
has been afforded the opportunity to make a
recommendation, that --
_________________________________________________________________
1. The District Court sentenced Mabrey to 70 months imprisonment and
60 months supervised release, and ordered him to pay a $100.00 special
assessment. Mabrey did not appeal his sentence.
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(1) the 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

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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 section 408 of the Controlled Substances
Act; 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 information shall not preclude
a determination by the court that the defendant has
complied with this requirement.
18 U.S.C. S 3553(f).
This provision, known as the safety valve, is also set forth
in the Sentencing Guidelines at S 5C1.2.2 It is the first
criterion that is at issue in this appeal, as it requires that
for Boddie to have the benefit of the safety valve, he must
"not have more than 1 criminal history point, as
_________________________________________________________________
2. Section 5C1.2(a) Limitation on Applicability of Statutory Minimum
Sentences in Certain Cases provides that "the court shall impose a
sentence in accordance with the applicable guidelines without regard to
any statutory minimum sentence, if the court finds that the defendant
meets the criteria in 18 U.S.C. S 3553(f)(1)-(5)" and sets forth the five
statutory criteria verbatim.
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determined under the sentencing guidelines." 18 U.S.C.
S 3553(f)(1); U.S.S.G. S 5C1.2(a)(1).
The commentary to U.S.S.G. S 5C1.2 defines"more than
1 criminal history point, as determined under the
sentencing guidelines" to mean "more than one criminal
history point as determined under S 4A1.1 (Criminal History
Category)." U.S.S.G. S 5C1.2, cmt. n.1. Under U.S.S.G.
S 4A1.1, criminal history points are assigned for prior
criminal convictions and the total number of points
determines a defendant’s criminal history category. A
defendant’s criminal history category is used, along with
his/her offense level, to determine the applicable
sentencing guideline range. See U.S.S.G. Ch.5, Pt. A. Under
U.S.S.G. S 4A1.3, a court may depart from the otherwise
applicable guideline range and use as a reference the range
for a defendant with a lower criminal history category if a

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defendant’s criminal history category significantly over-
represents the seriousness of a defendant’s criminal
history.
Boddie argues that because the District Court had
determined that his criminal history category of II
overstated the seriousness of his past criminal conduct and
that his proper criminal history category was I, he should
be deemed eligible for application of the safety valve.
However, the safety valve provision is written in terms of
criminal history points, not criminal history category.
This issue was most recently considered by the Court of
Appeals for the Sixth Circuit in United States v. Penn, 282
F.3d 879 (6th Cir. 2002). The district court had granted the
defendant a downward departure under U.S.S.G. S 4A1.3,
finding that his criminal history category of II, based upon
two criminal history points, did not accurately reflect the
seriousness of his past criminal conduct. The district court
found that the defendant should only receive one criminal
history point for his prior conviction based upon the
amount of time he spent in prison, and that a criminal
history category of I applied. The court then applied the
safety valve and sentenced the defendant below the
statutory mandatory minimum.
On appeal, the court held that the district court did not
have authority to alter the defendant’s criminal history
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points based upon its conclusion that his criminal history
category overstated the seriousness of his past criminal
conduct. Id. at 882. Similarly, the district court was not
free to sentence the defendant below the statutory
mandatory minimum where he had more than one criminal
history point. Id. The court explained that the commentary
to S 5C1.2, quoted above, limits the district court’s
authority to apply the safety valve "to cases where a
defendant has not more than one criminal history point as
calculated under S 4A1.1, regardless of whether the district
court determines that a downward departure in the
defendant’s sentence is warranted by S 4A1.3." Id. at 881.
The court further explained that the effect of a departure
under S 4A1.3 is not to change the defendant’s actual
criminal history category or the calculation of a defendant’s
criminal history points. See id. at 882.
Similarly, in United States v. Robinson, 158 F.3d 1291
(D.C. Cir. 1998) (per curiam), the district court had
adjusted the defendant’s criminal history category
downward from category II (based on three criminal history
points) to category I on the ground that defendant’s
criminal history category over-represented the seriousness
of his criminal history. The court then found the defendant
eligible for the safety valve provision based upon the
downward departure. The Court of Appeals for the District
of Columbia Circuit remanded the case for re-sentencing,
explaining that

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while U.S.S.G. S 4A1.3 affords a sentencing court
discretion to determine whether a criminal history
category accurately reflects a defendant’s criminal
history, nothing in U.S.S.G. S 4A1.1 suggests that the
sentencing court has any discretion with respect to the
calculation of a defendant’s criminal history score:
Section 4A1.1 is a mechanistic provision which merely
instructs the sentencing court to add points for various
carefully-defined criminal history occurrences.
Id. at 1294.
The Court of Appeals for the Eighth Circuit reached a
similar result in United States v. Webb, 218 F.3d 877 (8th
Cir. 2000), cert. denied, 531 U.S. 1131 (2001). In that case,
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although the district court found that the defendant’s
criminal history category overstated the seriousness of his
past criminal conduct and granted a downward departure
under S 4A1.3, reducing defendant’s criminal history
category of III to I, the district court rejected the
defendant’s argument that he was eligible for the safety
valve provision. The Court of Appeals agreed, stating that
"[n]othing in section 4A1.3, the provision under which the
district court shifted [the defendant] into a lower criminal
history category, indicates that a category change under
this provision deletes previously assessed criminal history
points for the purposes of the section 5C1.2 analysis." Id.
at 881.
The Court of Appeals for the Tenth Circuit reached the
same conclusion in United States v. Owensby, 188 F.3d
1244 (10th Cir. 1999). The court rejected the defendant’s
argument that his eligibility for the safety valve provision
may be based on his reduced criminal history category as
determined under S 4A1.3, explaining that"[s]ection 4A1.3
does not authorize a court to add or subtract individual
criminal history points from a defendant’s record; rather, it
permits the sentencing court, when departing from the
otherwise applicable guideline range, to ‘use, as a reference,
the guideline range for a defendant with a higher or lower
criminal history category, as applicable.’ " Id. at 1246.
Accord United States v. Orozco, 121 F.3d 628, 630 (11th
Cir. 1997) ("The plain language of the relevant guideline
and the statute both say that in order to be eligible for the
safety-valve provision, a defendant cannot have‘more than
1 criminal history point.’ Neither speaks about the criminal
history category. . . . There is no need to look beyond the
plain language of the statute and the guideline[.]"); United
States v. Resto, 74 F.3d 22, 28 (2d Cir. 1996)
(notwithstanding that the sentencing judge elected to
depart by treating the defendant as if he had a criminal
history category of I, defendant nonetheless has four
criminal history points and is thus ineligible for the safety
valve); United States v. Valencia-Andrade, 72 F.3d 770, 774

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(9th Cir. 1995) (defendant whose criminal history category
was reduced from II to I could not benefit from safety valve
because statute expressly precludes the courts from
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sentencing defendant with more than one criminal history
point below the mandatory minimum).
These cases rely on the commentary to U.S.S.G. S 5C1.2.
Although Boddie recognizes that federal courts are bound
by the commentary to the Sentencing Guidelines, see
Stinson v. United States, 508 U.S. 36, 38 (1993), he argues
that the commentary to S 5C1.2 does not limit the courts
with respect to consideration of downward departures as
authorized in S 4A1.3. Rather, he contends, the
commentary is silent concerning the effect of a downward
departure. Boddie is correct that the commentary to
S 5C1.2 does not address S 4A1.3. However, it specifically
defines "more than 1 criminal history point, as determined
under the sentencing guidelines" to mean "more than one
criminal history point as determined under S 4A1.1."
U.S.S.G. S 5C1.2, cmt. n.1.
We agree with the other courts of appeals that have
addressed this issue that this definition precludes a court
from applying the safety valve provision where a defendant
has more than one criminal history point as determined
under S 4A1.1, notwithstanding the fact that the court
granted a downward departure after finding that the
criminal history category is overstated.
It is no secret that the Sentencing Guidelines have been
the subject of substantial controversy since their
promulgation, often because of what appears to be their
inflexibility in situations where equitable considerations
might suggest a different outcome. In this case, for
example, Boddie is sentenced to serve ten years
imprisonment whereas Mabrey, his codefendant, who
engaged in the same conduct and pled guilty to the same
offense was sentenced to serve less than six years
imprisonment, with the differential being that Boddie had
more criminal history points because he committed the
drug offense while on probation for driving with a
suspended license. In other circumstances, the sentencing
court’s ability to depart downward (or upward) tempers
what may be a special circumstance. Here, however, we
face not only the Sentencing Guidelines but a congressional
statute that is framed in terms of criminal history points. If
there is to be any change in this respect, it must be by
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congressional action. After all, the crime that Boddie
committed was a serious drug offense and if Congress
chose to ameliorate the effect of some sentences in drug
cases by providing a safety valve, it clearly had the option
to choose the conditions for eligibility for that safety valve.

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Boddie is not eligible, Mabrey was.
IV.
CONCLUSION
For the reasons discussed above, we will affirm the
judgment of sentence of the District Court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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