Boothroyd: the gun bump and the safety valve

David Boothroyd received a 60-month mandatory minimum sentence for growing marijuana, even though his guideline range was 24 to 30 months. Retained counsel did not seek the safety valve, or advise David of its potential availability, because he thought that a .22 rifle, which was located in an outbuilding closet adjacent to the grow room’s entrance, qualified for the two-level gun bump under § 2D1.1(b) of the Guidelines. The safety valve, 18 U.S.C. § 3553(f), allows a sentence without regard to the mandatory minimum sentence. Trial counsel neither investigated nor argued the safety valve because "he assumed petitioner lacked a credible argument that the Marlin rifle was not possessed in connection with the crime." Counsel also did not provide advice regarding a truthful disclosure of the relevant facts, another prerequisite for the safety valve.

Represented by Assistant Federal Public Defender Francesca Freccero, Mr. Boothroyd sought relief under 28 U.S.C. § 2255 based on ineffectiveness of counsel in failing to investigate and to advocate for safety valve treatment. Three days after the evidentiary hearing, Chief Judge Ancer Haggerty granted the motion to vacate the sentence and ordered Mr. Boothroyd’s immediate release. In the published opinion at United States v. Boothroyd, 2005 WL 3370832 (D.Or. Dec. 9, 2005)(slip opinion available here), Judge Haggerty set out three important practice tips for federal defense advocates.

First, the court focused on the need for reasonable investigation. "The Supreme Court has emphasized the importance of counsel’s investigation and production of mitigating evidence in analyzing the effectiveness of counsel." Judge Haggerty found the first prong of the test for ineffective assistance of counsel – representation that fell below the objective standard of reasonableness – based on counsel’s failure to conduct any investigation on petitioner’s eligibility for the safety valve.

Second, the court outlined the critical distinction between the gun bump and the safety valve. In contrast to the gun bump, "the safety valve requires a lesser burden and quantum of proof." Judge Haggerty surveyed the case law holding that the defendant has the burden by a preponderance, not the higher standard of proving a connection to the crime was "clearly improbable," and that, to be ineligible for the safety valve, there must be a "closer degree of connection" between the weapon and the crime. The court then agreed with the evidence marshaled by the defense to find that the hunting rifle was intended to protect livestock from predators and other nuisance animals, not to further the drug crime.

The third piece is the safety valve’s requirement of truthfully providing statements to the government regarding the offense. The government relied on Mr. Boothroyd’s statements prior to the federal indictment that he would not cooperate. The court found that truthful statements (distinct from substantial assistance) would have been forthcoming if Mr. Boothroyd had been advised regarding the safety valve. And under the safety valve, such statements can be provided at any time up to the sentencing hearing.

So Mr. Boothroyd is home for Christmas, and we have a great reminder on several of the many fine points of federal sentencing law.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon