129 F. 3d 129 - United States v. Spivak

I respectfully dissent from the majority's decision to affirm Spivak's sentence. It does not appear from the record that Spivak was entitled to a safety valve reduction pursuant to U.S.S.G. § 5C1.2. In order to qualify for a safety valve reduction, the defendant must have "truthfully provided to the Government all information and evidence [she] has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan...." U.S.S.G. § 5C1.2. In applying section 5C1.2, this court has held that a defendant is only eligible for the safety valve reduction if, prior to sentencing, she has offered all information at her disposal that is relevant to the offense charged. See, e.g., United States v. Sherpa, 97 F.3d 1239, 1243 (9th Cir.1996) (explaining that the safety valve reduction is conditioned by a "tell all you can tell" requirement); United States v. Shrestha, 86 F.3d 935, 939 (9th Cir.1996) (same).

Here, Spivak clearly failed to provide the government and the court with truthful information about her involvement in the charged drug offenses. In fact, at each stage of the prosecution, she repeatedly denied having any knowledge that there was cocaine or narcotics of any kind hidden in her luggage. At sentencing, the district judge stated for the record that he "disagreed with" Spivak's "contention that she was totally ignorant of everything that took place." In view of this explicit finding by the district court, I cannot affirm its subsequent allowance of the safety valve reduction, which is only available to defendants who "tell all they can tell."

For the foregoing reasons, I would vacate Spivak's sentence and remand for resentencing.