US v. Brown, No. 20-50313 (8-2-22)(Daniels w/McKeown & Ikuta). After such knowledge, what forgive? Sure, a bit poetic, but it comes into play with this “safety valve” defendant and the First Step Act. The First Step Act proscribes using information in a safety valve proffer from enhancing a sentence. The defendant gave a safety valve proffer, which disclosed other drug courier trips. The court referenced this as part of the 3553 factors, along with other information, in sentencing the defendant to a 78 month sentence: below the mandatory minimum and below the guidelines range, but higher than the government recommendation (71 months) and what the defendant wanted. The court focused on a variety of factors, including use of a minor in the transport, the length of involvement with the traffickers, the impact on the community, and the earning of considerable sums. The case thus turns on “enhancing.”

As a first impression, the 9^th holds the sentence was not improper. A failure to reduce a sentence is not an enhancement. [The opinion cites extensive authority that a failure to reduce is not an enhancement.] The court considered a variety of factors – aggravating and mitigating – in fashioning this sentence. The First Step Act does not strip the court of the ability to consider the information in its sentencing discretion.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/02/20-50313.pdf