RICHARD ROGERS, Senior District Judge
This matter is presently before the court upon defendant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The court has conducted a hearing on this motion and is now prepared to rule.
The defendant entered a plea of guilty to distribution of crack cocaine. On May 14, 1999, the court sentenced the defendant to a mandatory minimum term of imprisonment of sixty months. He was represented by Steve Rosel during the plea and sentencing proceedings. On May 17, 2000, the defendant filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. In the motion, he contends that he was denied effective assistance of counsel at the time of sentencing. He alleges that his counsel did not properly advise him of the applicability of the safety valve provisions, 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. He asserts that he would have received a lesser sentence if the safety valve provisions had been applied.
Having carefully reviewed the evidence presented at the hearing, the court now issues the following findings of fact and conclusions of law:
Findings of Fact
1. The indictment in this case was filed on September 9, 1998. In the indictment, the defendant was charged with three counts. He was charged with distribution of approximately .66 grams of crack cocaine within 1000 feet of a public school in violation of 18 U.S.C. § 860(a) [Count 1]; distribution of approximately 2.14 grams of crack cocaine in violation of 18 U.S.C. § 841(a) (1) [Count 2]; and distribution of approximately 8.88 grams of crack cocaine in violation of 18 U.S.C. § 841(a)(1) [Count 3]. The defendant retained Steve Rosel to represent him.
2. At the time of his employment, Mr. Rosel had been a practicing attorney for approximately ten years. His main areas of practice are domestic relations, criminal law and traffic law. He handles about six to ten federal drug cases every year.
3. Mr. Rosel had several discussions with the defendant after he was retained to represent him. Initially, the defendant was evasive in his discussions with Mr. Rosel. Eventually, they discussed the possibility of a guilty plea and the possibility that the defendant might provide information to the government that would result in a sentence reduction. Mr. Rosel and the defendant were aware that the government would be willing to seek a reduction in the defendant's sentence if the defendant cooperated. The defendant was adamant that he would not provide any information on other individuals involved in other crimes. He was also adamant that he would not provide any information concerning the charges against him because the source of his drugs was a family member. The discussions between Mr. Rosel and the defendant did not specifically mention the safety valve provisions, but the defendant understood that some information of value would need to be provided to the government in order to receive a sentence reduction. Mr. Rosel also fully understood that the defendant was unwilling to cooperate with the government.
4. On January 12, 1999, counsel for the government wrote Rosel the following letter: "If Mac Thomas wants to help himself, he should really get going on it. We should not wait until the very last minute."
5. On February 16, 1999, the defendant entered a plea of guilty to Count 2 of the indictment pursuant to a plea agreement. The agreement provided that the government would dismiss the remaining charges and not bring any further charges against the defendant resulting from the activities that formed the basis of the indictment. The government further agreed to (1) recommend a three-level adjustment for acceptance of responsibility; (2) not object to a sentence at the low end of the correctly computed guideline; (3) not file an information under 21 U.S.C. § 851; and (4) not request an enhancement for school zone proximity. During the guilty plea proceeding, the defendant was advised by the government that he faced a possible mandatory minimum five-year sentence. The guilty plea petition signed by the defendant also contained the following language: "My lawyer informed me that the plea of "GUILTY" could subject me to a mandatory minimum sentence of not less than 5 years imprisonment (if applicable). . . ."
6. The probation office prepared an initial draft of a presentence report. This draft indicated that the defendant was eligible for the safety valve provisions. Subsequently, the probation officer who prepared the report realized that the defendant was not eligible for the safety valve provisions and provided a revised presentence report to counsel for both sides. The revised report was sent to Mr. Rosel on April 21, 1999 with an accompanying letter which stated in pertinent part: "In reference to our conversation this morning, I have made changes (sic) the body of the Presentence Investigation Report to reflect that Mr. Thomas is not eligible for the Safety Valve Provision."
7. The final presentence report indicated that the defendant would receive a mandatory minimum sentence of 60 months pursuant to 21 U.S.C. § 841(b)(1)(B) because the defendant had distributed 11.7 grams of crack cocaine. Without the application of the mandatory minimum provisions of § 841(b)(1)(B), the defendant's guideline range would have been 37 to 46 months based upon an adjusted offense level of 23 and a criminal history category of I. Mr. Rosel offered no objections to the presentence report.
8. At sentencing on May 14, 1999, Mr. Rosel asked that the court sentence the defendant to the low end of the guidelines even though the presentence report indicated that the defendant was subject to a mandatory minimum sentence well above the guideline range. The court sentenced the defendant to the mandatory minimum term of imprisonment of 60 months.
Conclusions of Law
1. To establish a claim for ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was constitutionally deficient, and (2) counsel's deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance is deficient if the representation "falls below an objective standard of reasonableness." Id. at 690. Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
2. The safety valve provisions allow a defendant convicted of certain drug offenses to receive a lesser sentence. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. "Section 3553(f) was enacted as a `safety valve' to permit courts to sentence less culpable defendants to sentences under the guidelines, instead of imposing mandatory minimum sentences." United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995). These provisions allow the sentencing court to depart from the statutory minimum sentence if it finds that the defendant meets certain criteria. The required criteria are as follows: (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. U.S.S.G. § 5C1.2. The "truthful information" criterion requires the disclosure of all information the defendant possesses concerning his offense or related offenses.Acosta-Olivas, 71 F.3d at 378. This includes disclosure of information regarding the immediate chain of distribution. Id.
3. There is no dispute here that the defendant met the first four requirements of the safety valve provisions. He would have been required to comply with the fifth requirement in order to receive the benefit of the safety valve provisions.
4. The position of the defendant is that his attorney failed to advise him of the applicability of the safety valve provisions. He has alleged that he would have provided the information required by the safety valve provisions if he had been properly advised. The court is not persuaded that Mr. Rozel had a thorough understanding of the safety valve provisions. Moreover, the court is not convinced that Mr. Rozel discussed the particular requirements of the safety valve provisions with the defendant. In this regard, the court finds that Mr. Rozel's representation was constitutionally deficient. A thorough understanding of the safety valve provisions is necessary in the representation of individuals charged with drug offenses in federal court. Discussions and consideration of these provisions are critical in the evaluation of the resolution of any criminal drug proceeding.
5. Even though Mr. Rozel's representation was deficient, the court is not persuaded that the defendant was prejudiced by it. In order for the defendant to receive the benefits of the safety valve provisions, he was required to truthfully provide the government with information concerning the charged offenses. The court is not persuaded that the defendant ever had any intention of revealing truthful information to the government concerning the distribution of the crack cocaine. Mr. Rosel and the defendant had several discussions concerning the defendant's possible cooperation with the government. Mr. Rozel made the defendant aware that he could receive a sentence reduction if he provided the government with information about his offenses. The defendant made it clear to Mr. Rozel that he was unwilling to provide any information concerning his source of the crack cocaine. At the hearing on the instant motion, the defendant provided the source of his crack cocaine. Although the defendant was willing to provide this information now, the court does not believe that the defendant had any intention of revealing this information prior to sentencing. Without providing such information, the defendant would not have been entitled to any relief under the safety valve provisions. Accordingly, the court does not find that the defendant was prejudiced by the deficient representation provided by Mr. Rosel.
6. In sum, the court does not find merit to the defendant's motion. The defendant's motion shall be denied.
IT IS THEREFORE ORDERED that defendant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. # 22) be hereby denied.
IT IS SO ORDERED.