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Seventh Circuit Announces Safety Valve Relief Under § 3553(f) Is Narrower Than Guidelines Firearms Enhancement Under § 2D1.1(b)(1), District Court Erred by Conflating Them

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Illinois erred in conflating the scopes of the no-firearms condition of the “safety valve” of 18 U.S.C. § 3553(f) and the firearms enhancement of U.S. Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1), and the error was not harmless.

In November 2022, Senque Bingham pleaded guilty to conspiracy to distribute 50 or more grams of methamphetamine in violation of 21 U.S.C. §§ 845 and 841(a)(1) and (b)(1)(A). Witness statements in the Presentence Investigation Report (“PSR”) revealed that Bingham and others possessed firearms in the hotel rooms where he and others sold drugs.

Bingham filed objections to the PSR and argued he satisfied the five criteria for safety-valve relief under 18 U.S.C. § 3553(f). He argued that the evidence showed he did not possess a firearm; rather, it was others around him who possessed firearms. But at sentencing, the District Court “found that Bingham was ineligible for safety-valve relief because he qualified for a firearms enhancement under U.S.S.G. § 2D1.1(b)(1).” The District Court sentenced Bingham to the statutory minimum of 120 months. He timely appealed, arguing that the District Court erred because the no-firearms condition of § 3553(f) is narrower than the firearms enhancement of USSG § 2D1.1(b)(1), but the District Court conflated the two.

The Court observed under “the safety-valve provision of 18 U.S.C. § 3553(f), a sentencing court ‘shall impose a sentence … without regard to any statutory minimum sentence’ if the defendant meets five criteria, one of which is that ‘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’ (the no-firearms condition).” A “defendant who satisfies all five safety-valve criteria is [also] entitled to a two-level reduction in their offense level.” U.S.S.G. §§ 5C1.2 and 2D1.1(b)(18). By contrast, if a dangerous weapon, including a firearm, was possessed in connection with the offense, the defendant’s offense level will be increased by two levels under U.S.S.G. § 2D1.1(b)(1).

The firearms enhancement of U.S.S.G. § 2D1.1(b)(1) may apply where a co-conspirator’s possession of a firearm was reasonably foreseeable to the defendant. U.S.S.G. § 1B1.3(a)(1)(b). However, the no-firearms condition of 18 U.S.C. § 3553(f)(2) “limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused.” U.S.S.G. § 5C1.2, cmt. n. 4.

The Court observed that every circuit that has addressed this issue—that is, the First, Fourth, Fifth, Sixth, Eighth, Tenth, Eleventh, and D.C. Circuits—“held that the no-firearms condition is narrower than the firearms enhancement and does not impute reasonably foreseeable acts of co-conspirators to a defendant.” See United States v. Carrasquillo, 4 F.4th 1265 (11th Cir. 2021); United States v. Barron, 940 F.3d 903 (6th Cir. 2019); United States v. Delgado-Paz, 506 F.3d 652 (8th Cir. 2007); United States v. Figueroa–Encarnación, 343 F.3d 23 (1st Cir. 2003); United States v. Pena–Sarabia, 297 F.3d 983 (10th Cir. 2002); United States v. Wilson, 114 F.3d 429 (4th Cir. 1997); In re Sealed Case, 105 F.3d 1460 (D.C. Cir. 1997); United States v. Wilson, 105 F.3d 219 (5th Cir. 1997) (per curiam). The Court announced: “We join them today.”

Bingham also argued the error was not harmless. Under harmless error review, the Court “will not remand for resentencing if [it is] convinced that, on remand, the district court would impose the same sentence.” United States v. Melvin, 948 F.3d 848 (7th Cir. 2020). “A district court can ‘inoculate’ its sentence against reversal by ‘giving [the Seventh Circuit] the information [it] need[s] to determine, on appeal, whether an error was harmless without resort to a remand.” United States v. Caraway, 74 F.4th 466 (7th Cir. 2023).

In the present case, the District Court commented at sentencing that it “would have imposed the same sentence with or without the enhancements.” See United States v. Seals, 813 F.3d 1038 (7th Cir. 2016). But the District Court did not explicitly say that it would have. See Caraway. Thus, the Court concluded that it could not be certain what the District Court would have done.

Accordingly, the Court vacated Bingham’s sentence and remanded for resentencing. See: United States v. Bingham, 88 F.4th 1220 (7th Cir. 2023).  

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United States v. Bingham

 

 

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