United States v. Mark Perry

MEMORANDUM

Mark Perry appeals the denial of safety valve protection under 18 U.S.C. § 3553 (f) based on a finding that he credibly threatened an informant. We affirm.

In order to avoid an unnecessary constitutional question, we assume for the sake of argument that the First Amendment applies to all aspects of sentencing and that a defendant therefore cannot be denied safety valve eligibility on the basis of a “credible threat[ ] of violence,” 18 U.S.C. § 3553 (f)(2), unless the defendant subjectively intends “to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.” United States v. Cassel, 408 F.3d 622, 631 (9th Cir.2005) (internal citations and quotation marks omitted). Although the district judge applied a standard that was objective in part, he also found that Perry intentionally threatened a confidential informant in order to dissuade her from working with police in the future.

The finding of an intentional threat was not clearly erroneous under the subjective standard. Perry conceded at argument that the burden of proof to establish all aspects of safety valve eligibility rests on the…