United States of America, Appellee, v. Neema Sherpa, Defendant-appellant, 265 F.3d 144 (2d Cir. 2001)

Per Curiam

Defendant Neema Sherpa timely appeals from a judgment of conviction entered on December 13, 2000 by the United States District Court for the Southern District of New York (Michael B. Mukasey, Chief Judge). Sherpa contends that his sentence should be vacated and the case should be remanded to the District Court for resentencing, because the District Court imposed Sherpa's sentence based on the mistaken belief that it lacked the power under U.S.S.G. § 4A1.3¹  to depart below the 70 to 87 months of imprisonment range stated in the Guidelines for Criminal History Category I with an Offense Level of 27.

For the reasons set forth below, we hold, in conformity with U.S.S.G. § 4A1.3, that a downward departure below the lower limit of the applicable Sentencing Guidelines range for Criminal History Category I on the basis of the minor nature of a Sherpa's criminal history is not permissible. In addition, Offense Level points cannot be deducted under U.S.S.G. § 2D1.1(b) (6)²  where Sherpa fails to satisfy the criteria for "safety valve" relief under U.S.S.G. § 5C1.2³  due to his accumulation of three criminal history points.

Pursuant to a February 15, 2000 plea agreement, Sherpa pleaded guilty on March 8, 2000 to one count of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a) (1),⁴  (b) (1) (B) (i),⁵  and 846,⁶  which carried a mandatory minimum sentence of five years of imprisonment. As new information about Sherpa's criminal history came to light, the original plea agreement was modified by a June 21, 2000 amendment. The modified agreement stated that under U.S.S.G. § 2D1.1(c) (5),⁷  Sherpa's Base Offense Level was 30 because his offense involved approximately 780 grams of heroin. However, the amended plea agreement also acknowledged a two-level decrease in Sherpa's Offense Level pursuant to U.S.S.G. § 3E1.1(a),⁸  for Sherpa's acceptance of responsibility for his crime; and another one-level decrease under U.S.S.G. § 3E1.1(b),⁹  for his timely notification to the government of his intention to plead guilty.

This ultimately resulted in an Offense Level of 27. As for Sherpa's Criminal History Category, the updated plea agreement noted that Sherpa had accrued three criminal history points, amounting to a Criminal History Category of II. The amended agreement indicated that, pursuant to U.S.S.G. §§ 4A1.1(c)¹⁰  and 4A1.2(a) (3),¹¹  Sherpa earned one point for his suspended ninety-day prison sentence and thirty-six months of conditional release on a prior drunk driving conviction. He collected two more points under U.S.S.G. § 4A1.1(d),¹²  for committing the instant offense while on that conditional release. Taking Sherpa's Offense Level of 27 together with his Criminal History Category of II, Sherpa was facing a sentencing range of 78 to 97 months of imprisonment. Additionally, Sherpa and the government agreed that "neither a downward nor an upward departure from the stipulated Sentencing Range [was] warranted, with the exception that the defendant reserve [d] the right to seek a downward departure on the ground that the defendant's criminal history category over-represents the defendant's likelihood of recidivism, which the Government reserve [d] the right to oppose." (Amended Plea Agreement at 3.)

At the sentencing hearing on July 19, 2000, the District Court granted Sherpa's request for a downward departure on the ground that Sherpa's Criminal History Category overrepresented his likelihood of recidivism, permitting Sherpa to be sentenced as if he fell within Criminal History Category I. This determination, which the government does not contest, reduced Sherpa's sentencing range to 70 to 87 months of imprisonment. Sherpa then inquired as to whether this departure to Criminal History Category I would make him eligible for safety valve relief under U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f).¹³  Safety valve relief permits the District Court to sentence below the statutory minimum for a given offense when certain criteria are met, including the requirement that the defendant not have more than one criminal history point as determined under the Sentencing Guidelines. U.S.S.G. § 5C1.2. All parties eventually recognized that even if the District Court agreed to sentence Sherpa as though he fell within Criminal History Category I, Sherpa still had three criminal history points, making him ineligible for the safety valve benefit. United States v. Resto, 74 F.3d 22, 28 (2d Cir. 1996).

Seeking an alternative basis for a lower sentence, Sherpa filed a motion for a new departure on November 21, 2000. He argued that even if the District Court could not sentence below the mandatory minimum of five years' imprisonment, the District Court could "impose a sentence below the lower range for Criminal History Category I." Def.'s Mot. for Downward Departure, Nov. 21, 2000, at 5. In other words, Sherpa maintained that the Court could depart below the Guidelines range of 70 to 87 months and sentence Sherpa to the mandatory minimum of 60 months' imprisonment. In support of this argument, Sherpa pointed to U.S.S.G. § 4A1.3, which discusses upward departures where "the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." Section 4A1.3 states that a sentencing court may upwardly depart when the defendant already falls in Criminal History Category VI, the highest category on the sentencing table. Sherpa urged the court to read "symmetry" into U.S.S.G. § 4A1.3--despite the fact that it has been explicitly omitted--arguing that a downward departure below the otherwise applicable Guidelines range for Criminal History Category I should be permitted based on Sherpa's insignificant criminal history, just as an upward departure is permitted under U.S.S.G. § 4A1.3 to account for an extensive criminal history. This argument was rejected by Chief Judge Mukasey, because he did not believe that the Guidelines empowered him to grant a departure below the applicable Guidelines range. He stated,

Because of the policy statement that says that departures based on a defendant's criminal history category overrepresenting the likelihood of recidivism may not depart below level 1 [,] I don't think I have the power to do that because... one of two things... happen if I depart further.... Either I am directly violating that policy statement or else I am taking off the offense level points which I don't have the authority to do absent this qualification for safety valve departure which he doesn't have because he still has the points. For those reasons [,] I don't think I can do any better than a 70-month sentence.

(U.S. Dist. Ct. Tr., Dec. 11, 2000, at 6-7.)

On appeal, Sherpa presses the same argument made before the District Court in support of his quest under U.S.S.G. § 4A1.3 for a downward departure below the applicable Guidelines range for Criminal History Category I. The government counters with the reasoning articulated above by the District Court.¹⁴ 

The District Court could have imposed a lower sentence in Sherpa's case only by (1) reducing Sherpa's Criminal History Category or (2) reducing the Offense Level. In this case, departure on either basis would have violated the Guidelines.

Sherpa's argument that the District Court had the authority under U.S.S.G. § 4A1.3 to depart downwardly is plainly contrary to the explicit language of that section. Section 4A1.3, termed a "Policy Statement," see ante note 1, permits a court to depart upwardly, even when the defendant falls in Criminal History Category VI, where the Criminal History Category inadequately reflects the seriousness of a defendant's past criminal conduct and likelihood of recidivism. U.S.S.G. § 4A1.3. "However, this provision is not symmetrical. The lower limit of the range for Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the Guidelines range for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate." U.S.S.G. § 4A1.3; see also Williams v. United States, 503 U.S. 193, 201 (1992) ("Where, as here, a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable Guideline.").

Defendant's motion for a downward departure cannot be accomplished by reducing his Offense Level either. Sherpa could only qualify for a deduction of Offense Level points under U.S.S.G. § 2D1.1(b) (6) if he satisfied the criteria for safety valve relief under § 5C1.2. U.S.S.G. § 2D1.1(b) (6). Sherpa concedes that his accumulation of three criminal history points renders him ineligible for the safety valve benefit. See Resto, 74 F.3d at 22.

Accordingly, we hold that a downward departure below the lower limit of the applicable Sentencing Guidelines range for Criminal History Category I on the basis of the minor nature of Sherpa's criminal history is not permissible. In addition, Offense Level points cannot be deducted under U.S.S.G. § 2D1.1(b) (6) where Sherpa fails to satisfy the criteria for safety valve relief under U.S.S.G. § 5C1.2 due to his accumulation of three criminal history points.

The judgment of the District Court is affirmed.