USA v. Robert Brehm, (11th Cir. 2006)

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[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 17, 2006

N o . 05-13426

THOMAS K. KAHN

N o n - A r g u m e n t Calendar

CLERK

D . C. Docket No. 03-20879-CR-JEM

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT BREHM,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Southern District of Florida

(M a rch 17, 2006)

B efo re BIRCH, MARCUS and WILSON, Circuit Judges.

P E R CURIAM:

R o b ert Lyman Brehm appeals his 120-month sentence for importing and

p o s se ss in g heroin with intent to distribute. The appeal requires us to consider

w h eth er the district court abused its discretion in determining that Brehm failed to p ro v id e a fair and just reason for withdrawing his plea. It also presents an issue of first impression as to whether the Supreme Court's decision in United States v. B o o k er1 rendered the eligibility requirements for safety-valve relief under 18 U .S .C . 3553(f), U.S.S.G §§ 5C1.2 & 4A1.1, advisory or otherwise permitted courts discretion as to the imposition of mandatory minimum sentences. We find no e rr o r in the district court's determination and hold that Booker did not grant such d iscretio n . Accordingly, we AFFIRM.

I. BACKGROUND B reh m was indicted on two counts: (1) importation of heroin, in violation of 2 1U.S.C. § 952(a) and (2) possession with intent to distribute heroin, in violation o f 21U.S.C. § 841(a)(1). During pretrial discovery, Brehm submitted notice that h e intended to introduce expert evidence relating to a mental disease or defect or o th e r mental condition bearing on the issue of his guilt. The government requested th at Brehm submit to a psychiatric examination and the court so ordered. The 12 A p ril 2004 report on the examination stated that Brehm "clearly [met] the d iag n o stic criteria for Schizophrenia." R1-25 Attachment at 8. It clarified, h o w ev er, that (1) Brehm's alcohol, marijuana, and heroin use exacerbated his m en tal illness by causing significant paranoia (2) that during the examination, B reh m functioned adequately despite receiving no treatment for his psychotic illn ess; and (3) if Brehm routinely received anti-psychotic medication, he would lik e ly realize a significant decrease in psychotic symptoms, including decreased au d ito ry hallucinations and improved attention and concentration; but that (4) s u c ce ss fu l treatment of Brehm's psychotic illness required complete abstinence fro m illegal drugs and alcohol. Id. at 9-10.

Brehm's competence to stand trial was also assessed by way of an interview d e s ig n e d to evaluate an individual's ability to articulate understanding of the nature an d consequences of criminal charges and court proceedings, as well as the ability to assist counsel in a defense. In the course of this examination, Brehm stated that h e understood his current criminal charges and correctly identified them as f elo n ie s. Id. at 10. He also understood the meaning of probation and, with regard to guilty pleas: M r. Brehm knew and understood the pleas of "guilty," "not guilty," a n d "not guilty by reason of insanity." He indicated [he] was not sure h o w he planned to plead in relation to the current case and that he was g o in g to talk with his attorney about this issue. He indicated he "m ig h t" plead not guilty by reason of insanity if advised to do so by h is attorney, though he would have to think about it. Although Mr.

B r eh m was not entirely sure what a plea bargain was, this issue was d iscu ssed with him and he was able to describe it as "pleading guilty in exchange for lesser charges" when asked about it during a second in terv iew occurring one week later. The defendant continued to have so m e difficulty recalling what rights were given up when accepting a p lea bargain, though he understood this issue when it was explained to h im . Mr. Brehm indicated he would consider accepting a plea bargain if one were offered to him in the current case.

Id . at 11. Brehm was found to understand the roles of the prosecuting attorney, the d efen se attorney, and the judge and was able to articulate an understanding of a p p r o p r ia te courtroom behavior and to discuss courtroom procedure. Id. Even th o u g h Brehm had trouble in several areas during the initial competency interview, in c lu d in g describing the role of witnesses, whether or not he was required to testify in his own case, what to do if he disagreed with his attorney, the definition of a p le a bargain, and what to do if witnesses lied about him, these issues were d iscu ssed and he found to have retained the information gained from the d iscu ssio n s several days later. Id. at 11-12.

B ecau se Brehm continued to experience difficulty with certain areas, h o w e v e r, such as the rights relinquished when accepting a plea bargain, he later u n d er w en t another competency examination designed to assess a defendant's cap acity to understand and reason legal issues through questions about the p ro secu tio n of a hypothetical defendant. His competency to stand trial fell within th e "Minimal/No impairment range." Id. at 12. The examiner concluded that "B reh m ha[d] a generally good understanding of the nature and consequences of th e criminal charges and of the court proceedings. He [was] willing to work with h is attorney, but lack[ed] motivation in relation to the outcome of his case."2 Id.

T h e report also cautioned that Brehm's mental status would be subject to d eterio ratio n due to "stress or other precipitating factors, especially in light of the fact he is not taking antipsychotic medications," and that such deterioration would "lik ely directly impact his competence to stand trial." Id. at 12-13.

The report from a 30 June 2004 psychological examination ordered by B r eh m 's court appointed counsel concluded that Brehm was experiencing a severe m en tal disorder, with symptoms of a generalized anxiety disorder, drug d ep en d en ce, and a schizoid personality disorder. R1-35 Attachment at 8. His s co r e s from this examination indicated that he would "require prison-provided m e n ta l health services when incarcerated." R1-35 at 7. Nevertheless, this examiner fo u n d Brehm to have a "factual and rational understanding of the legal process and [to be able to] relate to and assist in his defense." Id. at 8.

The plea hearing took place one month after this last exam, on 26 July 2004.

At the hearing, the court instructed Brehm: [I]f you do not understand a question, please do not answer it.

Ask your attorney or ask me to explain it and we will do our very best to explain it to you, and we'll try. Between the two of us I am sure w e'll be able to explain any question to your satisfaction so that you u n d erstan d it.

If you answer a question, I'm going to assume that you u n d e r sto o d it and if somebody is reading the record that we are m ak in g of this now and they hear you answering a question I would ex p ect that they would be within their rights to assume that you u n d ersto o d it.

Y o u understand what I just said? R 5 at 3-4. Brehm responded, "Yes." Id. at 4. When asked if he was presently u n d er the influence of any drug or narcotic or alcohol, Brehm responded, "No," an d that he had not had any since he had been arrested in October 2003. Id. at 5.

Then the following exchange occurred: [D istrict Court]: Have you ever been treated for any mental illness? [B reh m ]: Yes.

[D istrict Court]: And what is that? [ B r eh m ]: They diagnosed me with schizo effective disorder.

[D istrict Court]: When was that? [B re h m ]: I think it could have been as early as 2000. But it couldn't h av e been later than 2001.

[ D is tr ic t Court]: I did order an evaluation of you. I don't remember ex actly why but I did order an evaluation. In December 2003 you w en t to the Federal Correctional Institution in Wasika, Minnesota; is th at correct? [B reh m ]: Yes. [D istrict Court]: And they evaluated you and they came to the co n clu sio n that although you did have a mental disease or defect, w h ich is probably what you said it was; I'm not positive, the sym p to m s are not currently such as to substantially impair your ability to understand the nature and consequences of the court proceedings a g a in s t you. So they determined you are able to assist your attorney a n d to knowingly enter a plea of not guilty in this case. Do you agree w ith them that you can enter a plea? [B reh m ]: I have some trouble but I understand.

[D istrict Court]: Counsel you've reviewed the report, have you not? [ B r eh m 's Counsel]: Yes, I have, your Honor.

[ D is tr ic t Court]: Are you satisfied that your client meets the standard o f understanding for this hearing? [ B r eh m 's Counsel]: Yes, your Honor. For the record, I had Mr.

B r eh m independently evaluated for competence before we came here b ecau se of the amount of time that elapsed when he came back from M in n eso ta. I was afraid he might have lapsed back.

[D istrict Court]: When did that happen? [B reh m 's Counsel]: That happened a couple of weeks.

[D istrict Court]: They also concurred he was of sound mind to assist yo u in these proceedings? [B reh m 's Counsel]: Yes, your honor.

Id. at 5-7. When asked whether he was satisfied that Brehm understood the p r o c e e d in g s , Brehm's counsel responded, "I am." Id. at 7. When the court asked B reh m if he was fully satisfied with the representation and advice of his counsel, h e responded, "Yes." Id. The following exchange then occurred regarding B lak ely v. Washington:3 [D istrict Court]: Have you and your attorney discussed the recent S u p rem e Court case of Blakely vs. Washington at all? [B reh m ]: No.

[D istrict Court]: Let me just ask you this. Do we have any issue as to an y aggravating factors, [Government]? [G o v ern m en t]: I don't believe we do, your Honor. The indictment ch arg es the defendant with importation and possession with intent to d istrib u te one kilogram or more of heroin. The total weight of heroin w as 2.96 kilograms.

[D istrict Court]: And there is no issue as to the amount? [G o v ern m en t]: No issue as to the amount. The sentencing range and g u id e lin e s is one kilogram to three kilograms. So we have charged u n d er the three. So I don't think ­ [District Court]: You do understand ­ I don't know if I really want to g et into a complicated colloquy with Mr. Brehm concerning waiver of ag g rav atin g factors. If you haven't charged him in the indictment, yo u ain't going to get him, do you understand that? [ G o v e rn m e n t]: I understand that, your Honor.

Id . at 8-9.

B reh m acknowledged that he understood that his plea waived his rights to a ju ry trial, to remain silent, to cross-examine witnesses, to call witnesses, and to testify on his own behalf. Id. at 9-10. At the court's request, the government stated that: "on both counts of the indictment the maximum penalty and the m an d ato ry minimum penalty are the same. It's a ten year mandatory minimum on b o th Count 1 and Count 2. And a maximum of up to life imprisonment." Id. at 10.

Brehm then affirmed that he understood he was exposing himself to the maximum p e n a lty recited, that he had discussed his sentencing with his attorney, and that he understood that the court had the authority to impose a sentence that might be a b o v e or below the Sentencing Guidelines range. Id. at 11. Brehm also indicated th at he understood to what he was pleading guilty. Id. at 12.

The government then stated the facts of Brehm's alleged offense, describing in some detail how United States Customs and Border Protection inspectors had d isco v ered 2.96 kilograms of a brown powdery substance, which tested positive for h ero in , concealed within the lining of Brehm's suitcase as he returned from a trip to Rio de Janeiro. Id. at 13.

T h e following exchange then occurred: [ D is tr ic t Court]: Mr. Brehm, this is very important now. You heard w h at the government said. Do you agree with those facts, that that is w h at the government could prove if this case were to go to trial and th at is what you are pleading guilty to? [G o v ern m en t]: Further, 2,960 grams of heroin is an amount consistent w ith the intended distribution of heroin. [D istrict Court]: You heard what the government said. Were the facts th at they are prepared to prove at trial, do you believe that those facts are true and that they could prove them if it went to trial? [B reh m ]: Probably, yeah.

I d . at 13-14. Brehm then entered a plea of guilty to both counts and the court fo u n d that Brehm's guilty plea was made knowingly and voluntarily. Id. at 14.

F o r purposes of sentencing, the probation office started the calculation with a base offense level of 32 based on U.S.S.G. § 2D1.1(c)(4), which is applicable to a defendant responsible for at least one but less than three kilograms of heroin, and th en recommended an adjustment for acceptance of responsibility pursuant to U .S .S .G . § 3E1.1(a) and (b), reducing the offense level by three for a final base o ffen se level of 29. Brehm had a subtotal of three criminal history points and r ec eiv e d an additional two criminal history points under U.S.S.G. § 4A1.1(e) b ecau se he committed the instant offense less than two years after release from im p r is o n m e n t. Five criminal history points gave Brehm a criminal history categ o ry of III resulting in a suggested guidelines imprisonment range of 108-135 m o n th s . Pursuant to U.S.S.G. § 5G1.1(c)(2), however, because the statutory m in im u m term of imprisonment for Brehm's offense under 21U.S.C. §§ 9 6 0 ( b ) ( 1 ) ( A ) and 841(a)(1) was ten years, his guidelines imprisonment range was ad ju sted to 120-135 months. A t the sentencing hearing on 27 January 2005, the only unresolved issue was w h eth er Brehm was eligible for a safety-valve reduction pursuant to 18U.S.C. § 3 5 5 3 (f) and U.S.S.G. § 5C1.2, which allow for sentencing without regard to any s ta tu to r y minimum when specific requirements are met. If he had qualified for a safety-v alv e reduction, Brehm could have been sentenced below 120 months, w ith in a range of 108 to 120 months. One of the requirements for safety-valve relief, however, is having no more than one criminal history point. § 3553(f)(1).

The court rejected Brehm's argument that Booker made the assessment of criminal h is to r y points discretionary but continued sentencing to allow Brehm's counsel ad d itio n al time to confirm that Brehm's criminal history points were correctly c a lc u la te d .

Brehm then filed a motion to withdraw his guilty plea and requested a h earin g , arguing that his plea had been involuntary because his history of sch izo p h ren ia and a relapse of that condition prevented him from understanding th e nature of the constitutional protections he was waiving and the charges against h im . Specifically, Brehm argued that, when he entered his guilty plea, he was u n a w a re of a previous conviction in 2002, at which time he had been hospitalized fo r schizophrenia, and as a result, he did not have a rational understanding of the co n seq u en ces of his present guilty plea. The district court denied Brehm's motion after finding that Brehm's allegations were not sufficient to overcome the strong p resu m p tio n that his plea had been voluntary. R1-50 at 3. The court further found th a t sufficient judicial resources had been expended in Brehm's case in that he had b e e n granted three continuances as to his sentencing. Id. Finally, the court noted th e government's argument that it would be prejudiced by the withdrawal because th e plea had been taken more than eight months previously and the government h ad "limited its investigation to establish[ing] [Brehm's] guilt." Id. at 3-4.

B reh m renewed his motion to withdraw his guilty plea, this time alleging th at he may have been under the influence of medication during his plea colloquy, e v e n though he testified otherwise at the time. Brehm explained that he had been u n d e r the mistaken impression that the court was inquiring about "illegal s u b s ta n c es ," rather than legally prescribed medication. R1-60 at 5. He argued f u r th e r that, even though the government had explained at the plea colloquy that B reh m was subject to a ten-year mandatory minimum sentence as to both counts, th e court had failed to address Brehm's understanding of a mandatory minimum.

At Brehm's reconvened sentencing hearing, the district court denied B r eh m 's renewed motion to withdraw his guilty plea as well as his renewed o b je ctio n as to his criminal history points in connection with which he had argued th at (1) the court had the discretion pursuant to Blakely and Booker and in light of th e advisory nature of the guidelines, to determine Brehm's criminal history points a n d (2) based on Brehm's extensive history of mental illness, these criminal history p o in ts were overrepresented. The court found that Booker did not permit it to ig n o r e minimum mandatory sentences and that, in any event, the criminal history p o in ts were not inappropriately ascribed to him. R8 at 17-18. The court, stating th a t it had considered the factors set forth in 18U.S.C. § 3553(a)(1) through (7), im p o s ed a sentence of 120 months to be followed by five years of supervised r ele as e, which was both within the advisory guideline range and in accordance w ith the mandatory minimum.

On appeal, Brehm argues that (1) the district court abused its discretion by f ailin g to grant his request, prior to sentencing, to withdraw his guilty plea based o n his suffering from a mental illness that he alleges affected his ability to fully co m p reh en d the nature and consequences of his plea; and (2) Booker rendered the e lig ib ility requirements for safety-valve relief advisory and permitted the district co u rt to exercise its discretion to grant relief from the mandatory minimum s en te n c e. II. DISCUSSION A . Withdrawal of Guilty Plea B reh m first argues that the district court erred in denying his request to w ith d raw his guilty plea, or at a minimum, in refusing to hold a hearing to assess th e various issues raised in his motions. More specifically, he complains that his atto rn ey only had three months to review the case with him, which, in combination w ith the district court's dispensing with the Blakely inquiry entirely at his plea co llo q u y, resulted in his failure to grasp the effect of Blakely on his sentence.

Brehm also argues that the "court's one sentence inquiry . . . regarding . . . the m an d ato ry minimum . . . was wholly inadequate." Appellant's Br. at 21. Finally, alth o u g h he acknowledges the government's expert's finding that Brehm clearly m et the diagnostic criteria for schizophrenia yet was not rendered unable to u n d erstan d the nature and consequences of the proceedings against him, Brehm p o in ts out that the same expert wrote that his condition might deteriorate under stress or other precipitating factors.

We "review the denial of a request to withdraw a guilty plea for abuse of d is cr etio n ." United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003). There is no abuse of discretion unless the denial is "arbitrary or unreasonable." United S tates v. Weaver, 275 F.3d 1320, 1328 n. 8 (11th Cir. 2001). A district court's r ef u s al to hold an evidentiary hearing is also reviewed for abuse of discretion. See United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.1986). It does not amount to abuse of discretion when a court has conducted extensive Rule 11 inquiries prior to accepting the guilty plea. Id. The Federal Rules of Criminal Procedure require a district court, before it accepts a plea of guilty, to inform the defendant of his rig h ts relevant to his guilty plea and determine that he understands them. Fed. R.

C r im . P. 11(b)(1).

A fter the district court has accepted a plea and before sentencing, a d efen d an t may withdraw a guilty plea if "the defendant can show a fair and just r ea so n for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). In d eterm in in g whether the defendant has met his burden to show a "fair and just r ea so n ," a district court "may consider the totality of the circumstances s u r ro u n d in g the plea." United States v. Buckles, 843 F.2d 469, 471-72 (11th Cir. 1 9 8 8 ). In the course of this inquiry, we consider "(1) whether close assistance of co u n sel was available; (2) whether the plea was knowing and voluntary; (3) w h eth er judicial resources would be conserved; and (4) whether the government w o u ld be prejudiced if the defendant were allowed to withdraw his plea." Id. at 4 7 2 (citations omitted). "The good faith, credibility and weight of a defendant's a ss er tio n s in support of a motion [to withdraw a guilty plea] are issues for the trial co u rt to decide." Id. Additionally, "[t]he longer the delay between the entry of the p lea and the motion to withdraw it, the more substantial the reasons must be as to w h y the defendant seeks withdrawal." Id. at 473.

Here, the district court found that: (1) Brehm was represented by counsel; (2 ) Brehm's guilty plea was voluntary, he was competent to understand the in d ictm en t, and he acknowledged waiving his rights to a jury trial; (3) sufficient ju d ic ia l resources had been expended in Brehm's case in that he had been granted th r e e continuances of his sentencing; and (4) the government would be prejudiced b y the withdrawal because the plea had been taken over eight months previously, cau sin g the government to limit its investigation in establishing Brehm's guilt.

Further, Brehm conceded at his plea colloquy that he understood the minimum and m a x im u m penalties of his sentence as well as the court's authority to impose a sen ten ce above or below the guideline range and that he was satisfied with his co u n sel's representation. Further, the district court did not "dispense" with d is cu s s io n relating to the effects of Blakely on Brehm's sentence but, rather, co rrectly determined that no legal issue in Brehm's case warranted a discussion of B lak ely. Additionally, Brehm failed to prove that he was not mentally competent to participate in his plea colloquy since both the court-ordered mental evaluation an d that initiated by Brehm's attorney for fear of a lapse confirmed that Brehm s u f fe re d from mental illness but concluded that he had a factual and rational u n d erstan d in g of the legal process, could relate to and assist in his defense, and w a s competent to stand trial. Finally, Brehm did not seek to withdraw his plea u n til April 2005, long after he had pled guilty in July 2004. For these reasons, we f in d the district court did not abuse its discretion in determining that Brehm had failed to demonstrate a "fair and just reason" for requesting withdrawal of his g u ilty plea or in denying the motion for a hearing on that issue.

B . Safety-valve Relief B reh m next argues that Booker gave the district court discretion as to the r eq u ir em e n ts for safety-valve relief and erred when it determined that it was w ith o u t authority to sentence him below the statutory mandatory minimum s en te n c e of 120 months. Whether the Supreme Court's decision in Booker renders calcu latio n of criminal history points under the Sentencing Guidelines for the p u rp o se of determining eligibility for safety-value relief pursuant to 18U.S.C. § 3 5 5 3 (f) is a question of law subject to de novo review. United States v. Williams, 4 3 1 F.3d 767, 769 (11th Cir. 2005) (per curiam). It is also an issue of first im p ressio n for us.

Safety-valve relief allows for sentencing without regard to any statutory m in im u m , with respect to certain offenses, when specific requirements are met. 18 U .S .C . § 3553(f). Section 3553(f) sets five conditions, the first of which is that the d efen d an t not have more than "1 criminal history point, as determined under the s en te n c in g guidelines." Id.; United States v. Orozco, 121 F.3d 628, 630 (11th Cir. 1 9 9 7 ) (per curiam). The Guidelines incorporate this statutory provision in § 5C1.2 an d criminal history points are calculated pursuant to § 4A1.1.

I n Booker, the Supreme Court held that the Federal Sentencing Guidelines v io late the Sixth Amendment right to a trial by jury to the extent that they permit a ju d g e to increase a defendant's sentence based on facts that are neither found by th e jury nor admitted by the defendant. Booker, 543 U.S. at 244, 125 S. Ct. at 756.

T o remedy this violation, the Court excised two specific provisions of the S e n te n c in g Reform Act of 1984 § 3553(b)(1) (requiring a sentence w ith in the guideline range, absent a departure) and 18U.S.C. § 3742(e) (estab lish in g standards of review on appeal, including de novo review of d e p a r tu r e s from the applicable guideline range) § 3553(a)). Additionally, we have held that "[a]fter Booker, sentencing req u ires two steps. First, the district court must consult the Guidelines and c o r re ctly calculate the range provided by the Guidelines. Second, the district court m u st consider [the18U.S.C. § 3553(a)] factors to determine a reasonable s en te n c e." United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per c u r ia m ) (citations omitted).

A lth o u g h we have not yet specifically addressed Brehm's issue, the Second C ir cu it has done so in United States v. Barrero, 425 F.3d 154 (2d Cir. 2005).4 In B arrero , the defendant argued that the district court should have considered the g u id e lin e s advisory for purposes of calculating his criminal history points and that 1 8U.S.C. § 3553(f)(1), "by virtue of its reference to and incorporation of a G u id e lin e s term (the defendant's `criminal history points'), should be considered ad v iso ry post- Booker." Barrero, 425 F.3d at 155. Rejecting this argument, the S eco n d Circuit explained that the calculation of criminal history categories is p r e re q u is ite to calculation of the correct Guidelines sentencing range and that, even after Booker, district courts remain obligated to correctly calculate the guideline r an g e pursuant to 18U.S.C. § 3553(f)(1). Barrero, 425 F.3d at 156-57. The court in Barrero went on to note that not only did the defendant's contentions directly c o n f lic t with the plain terms of the statute, but "[b]y arguing that we should read s ec tio n 3553(f) as applying even where the defendant has more than one criminal h isto ry point under the Guidelines, [the defendant] in effect asks [the court] to ex cise subsection (f)(1), presumably on Sixth Amendment grounds." Id. at 157.

T h e court declined to do so.

W e agree. The Second Circuit's reasoning in Barreo, that Booker does not r en d e r application of individual guideline provisions advisory because the district co u rt remains obligated correctly to calculate the Guidelines range pursuant to 18 U .S .C . § 3553(f)(1), is consistent with our holding in Talley. Talley, 431 F.3d at 7 8 6 . Further, we agree that to treat calculation of the safety-valve eligibility criteria as advisory would, in effect, excise 18U.S.C. § 3553(f)(1). Accordingly, w e find the district court did not err when it determined that Booker did not permit a court to discretion to grant relief from the mandatory minimum sentence.

III. CONCLUSION B reh m appeals his 120-month sentence for importing and possessing heroin w ith intent to distribute. We find that the district court did not abuse its discretion in determining that Brehm failed to provide a fair and just reason for withdrawing h is plea of guilty. Because we hold that the Supreme Court's decision in Booker d id not render the calculation of eligibility requirements for safety-valve relief ad v iso ry, we further find that the district court did not err in finding it had no d is cr etio n to grant Brehm relief from the statutory mandatory minimum sentence o f 120 months for each of his offenses. Accordingly, we AFFIRM both the d istrict court's ruling on the motion to withdraw the guilty plea and Brehm's s en te n c e.

1 543 U.S. 220 , 125 S. Ct. 738 (2005)

2 The examiner further explained this lack of motivation as a "long-standing personality characteristic . . . as evidenced by [Brehm's] repeated truancy from school and lack of motivation to attempt employment." Id. at 12.

3 542 U.S. 296, 124 S. Ct. 2531 (2004).

4 Brehm asserts that the court in United States v. Duran, 383 F. Supp. 2d. 1345 (D. Utah 2005), found the safety-valve provision should be considered advisory and thus allowed the court to disregard the statutory mandatory minimum. The defendant in that case, however had clearly qualified for safety valve relief. Id. at 1348. At issue in that case was whether the court should be forced to sentence within the Guidelines range (below the mandatory minimum) or whether it could sentence below that range. Id. at 1349. The court found that the recommended guidelines range was still only advisory under Booker. Id. Thus, whether the eligibility criteria for safety valve relief were also merely advisory was not addressed by that court.

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