United States v. Lopez

* District Judge of the Eastern District of Louisiana, sitting
by designation.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20506
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FAUSTO DOZAL LOPEZ,
Defendant-Appellant.
____________________________
Appeal from the United States District Court
for the Southern District of Texas
_____________________________
August 29, 2001
Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and DUPLANTIER,*
District Judge.
BENAVIDES, Circuit Judge:
Fausto Dozal Lopez (Lopez) pleaded guilty to various drug
trafficking and money laundering offenses. He now appeals his sentence,
arguing that the district court erred in concluding that the “safety
valve” provisions in the sentencing guidelines prohibited a sentence
below the statutory minimum. See U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6).
Because the safety valve guideline expressly allows a sentence “without
regard to any statutory minimum,” we VACATE and REMAND Lopez’s sentence
for further proceedings.

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I. BACKGROUND
A grand jury charged Lopez, along with several codefendants, in a
six-count superseding indictment with the following offenses: conspiracy
to possess with intent to distribute cocaine; possession with intent to
distribute cocaine; two counts of money laundering; and conspiracy to
commit money laundering. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846
and 18 U.S.C. § 1956(a)(1)(A), (a)(1)(A)(I). He pleaded guilty as
charged.
Prior to his rearraignment, Lopez filed an unopposed motion to
waive the preparation of a presentence report. In his motion, Lopez
provided that he had no criminal history and established a guideline
offense level of 38, based on the possession of 267 kilograms of
cocaine. See U.S.S.G. § 2D1.1(a)(3). Lopez and the government agreed
that he should receive a two-level reduction pursuant to the “safety
valve” provisions in §§ 2D1.1(b)(6) and 5C1.2 and a three-level
reduction for acceptance of responsibility pursuant to § 3E1.1(b).
However, the government took no position with respect to whether Lopez
should receive a two-level reduction for a minor role in the offense
under § 3B1.2(b). Nor did the government take any position with respect
to whether Lopez qualified for any downward departures based on, among
other things, his extraordinary family responsibilities and serious
coercion or duress. See §§ 5K2.0 and 5K2.12. Based on the above
calculations, the parties agreed that the total offense level was either
31 (with minor role reduction) or 33 (without minor role reduction)

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prior to any possible downward departure. With a criminal history
category of I, an offense level of 31 corresponds to a guideline range
of 108 to 135 months, and an offense level of 33 corresponds to a
guideline range of 135 to 168 months. The statutory minimum sentence
is 120 months. See 21 U.S.C. § 841 (b)(1)(A)(ii).
At the conclusion of his motion to waive a presentence report,
Lopez asserted that he “qualifie[d] pursuant to [§]5C1.2 for a sentence
below the mandatory minimum.” The government did not object to this
assertion.
At the rearraignment hearing, Lopez requested to be sentenced the
same day. The district court concluded that it had sufficient
information to sentence Lopez and therefore waived preparation of a
presentence report. The district court agreed that Lopez did not have
any criminal history points and that his base offense level should be
38. The court further determined that he met the criteria for the two-
level safety valve reduction and was entitled to a three-level reduction
for acceptance of responsibility. The court was not persuaded that
Lopez was entitled to the reduction for a minor role in the offense.
Thus, the court found that Lopez’s total offense level was 33, which
translated into a guideline range of 135 to 168 months. Further, the
court found that Lopez was entitled to a downward departure to the
statutory minimum sentence of 120 months based on, among other things,
his extraordinary family responsibilities and serious coercion or
duress. See, e.g., §§ 5K2.0 and 5K2.12. Finally, the court stated that

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1 As previously set forth, in a written motion to waive his
presentence report, Lopez asserted that he “qualifie[d] pursuant to
[§] 5C1.2 for a sentence below the mandatory minimum.” Although
Lopez did not object at the sentencing hearing to the district
court’s oral statement that the safety valve provision prohibited
a sentence below the statutory minimum, raising it in his motion
was sufficient to preserve the issue for appeal. See United States
v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996) (explaining that
raising the issue in a sentencing memorandum without orally
reiterating request during the sentencing hearing was sufficient to
preserve the issue for appeal).
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it believed that the safety valve prevented it from departing below the
statutory minimum sentence. Nonetheless, the court expressly stated
that, but for that prohibition, it would have granted a downward
departure to 108 months. Lopez now appeals his sentence.
II. ANALYSIS
The sole issue raised on appeal is whether the district court
erroneously believed that the safety valve provisions prevented it from
departing below the statutory minimum sentence. This Court reviews a
district court’s legal interpretation of the sentencing guidelines de
novo. United States v. Rodriguez, 60 F.3d 193, 195 (5th Cir. 1995).1
Section 5C1.2 is known as the “safety valve” provision in the
sentencing guidelines and is entitled “Limitations on Applicability of
Statutory Minimum Sentences in Certain Cases,” and it provides as
follows:
In the case of an offense under 21 U.S.C. § 841 .
. . [and] § 846 . . ., the court shall impose a
sentence in accordance with the applicable
guidelines without regard to any statutory minimum
sentence, if the court finds that the defendant
meets the criteria in 18 U.S.C. § 3553(f)(1)-(5)

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set forth verbatim below:
(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.
(emphasis added).
Additionally, in § 2D1.1(b)(6), the guidelines provide that if a
defendant meets these five requirements and the offense level is 26 or
greater, the offense level is decreased by 2 levels.
It is undisputed that Lopez met the five requirements for the
safety valve reduction and that the court properly gave him the two-

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level reduction. The point of contention is whether the district court
erred in believing that it did not have the authority to sentence Lopez
to 108 months, which is below the statutory minimum sentence and at the
bottom of his applicable guideline range after the adjustments and
downward departure.
As indicated, during the sentencing hearing the district court
stated:
I am aware of the vagaries of the safety valve
which prevent me from departing below the
statutory minimum of ten years. We have in
different contexts discussed the fact that this
guideline range is driven by the fact that there
was more than 150 kilograms of cocaine. That’s
true. There was substantially more than 150
kilograms and I do not feel that the vagaries of
that safety valve problem are ones that you can
correct through a minor role adjustment. It is
just too artificial.
Having said that, I will also say that I am
persuaded that a downward departure, to the extent
permitted by law, is appropriate.
* * *
To the extent that the safety valve does not
permit me to go below the statutory minimum, so be
it, but I think that the safety valve has not
operated in this context to its full extent
because of the vagaries of this charge and scoring
under the guidelines.
* * *
Having said all of that, I am going to
downward depart to the statutory minimum of ten
years which puts us -– I will be departing
downward from a level 33 to a level 31 for the
reasons stated. In the unlikely event that there
is an appeal, I will say that I would have
sentenced the defendant at the 108[-month] level
based on these downward departure factors if I

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2 Section 5K1.1 is entitled “Substantial Assistance to
Authorities” and provides, in part, that “[u]pon motion of the
government stating that the defendant has provided substantial
assistance in the investigation or prosecution of another person who has
committed an offense, the court may depart from the guidelines.”
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were permitted to do so by law. And should the
law change in the safety valve, I would be willing
to reconsider the sentence in that context.
As the record makes perfectly clear, the district court believed
the safety valve prohibited it from sentencing Lopez to 108 months. The
district court was mistaken in such belief.
The government concedes that the safety valve authorizes the
district court to impose a sentence below the statutory minimum “in
certain cases.” The government argues that a sentencing court may not
impose a sentence without regard to the statutory minimum sentence under
the authority of § 5K2.0 when the applicable imprisonment range
following an adjustment based on the safety valve remains above the
statutory minimum sentence. While recognizing that it is not
controlling, the government relies on United States v. Solis, 169 F.2d
224 (5th Cir. 1999), as support for its position.
In Solis, the sentencing court granted the defendant a five-level
reduction under the safety valve, primarily for substantial assistance
the defendant had given to the government. 169 F.3d at 226. This Court
determined that the district court erred in giving such a departure and
that it could not, absent a government motion, give a reduction for
substantial assistance under § 5K1.1.2 Id. at 226-27. We further
concluded that § 5K2.0 does not afford a district court “any additional

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authority to consider substantial assistance departures without a
Government motion.” Id.
Solis is inapposite because here the government is not challenging
the reductions Lopez received. Instead, the government is arguing that
the district court could not sentence Lopez below the statutory minimum
sentence because the district court first applied the safety valve
reduction and subsequently applied the reduction under § 5K2.0.
Essentially, the government contends that the district court did not err
because the last reduction given to Lopez was pursuant to § 5K2.0,
which, in and of itself, does not allow a sentence below the statutory
minimum. See United States v. Duncan, 242 F.3d 940, 949 (10th Cir.
2001) (explaining that a district court “lacks the authority to lower
a mandatory minimum sentence via section 5K2.0 of the Guidelines").
We are not persuaded that the order in which a reduction is applied
affects the safety valve’s exemption from the statutory minimum. The
safety valve guideline provides that “the court shall impose a sentence
in accordance with the applicable guidelines without regard to any
statutory minimum sentence, if the court finds that the defendant meets
the criteria . . . .” (emphasis added). The guidelines do not state
that the statutory minimum sentence re-enters the calculation after the
two-level reduction under the safety valve provisions has been granted.
Indeed, the commentary to § 5C1.2 indicates otherwise. Specifically,
the commentary provides that “[a] defendant who meets the criteria under
this section is exempt from any otherwise applicable statutory minimum

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3 We commend the district court for providing a clear
explanation of its reasoning and its intent with respect to its
sentencing decision. The clarity of its decision greatly assisted
this Court in the resolution of the issue before us.
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sentence of imprisonment and statutory minimum term of supervised
release.” § 5C1.2, comment. (n.9) (emphasis added). This commentary
indicates that the defendant’s entire sentence is exempt from the
statutory minimum sentence, not just that the application of the two-
level reduction is exempt from the statutory minimum.
Accordingly, we find that the district court erred in believing
that it was without the authority to sentence Lopez below the statutory
minimum sentence of 120 months. “Although we lack jurisdiction to
review a defendant’s challenge to his sentence based on mere
dissatisfaction with the court’s refusal to grant a downward departure,
we may do so if the court’s refusal was the result of a violation of
law.” United States v. Flanagan, 87 F.3d 121, 125 (5th Cir. 1995). In
Flanagan, the defendant, in a sentencing memorandum, requested a
reduction under § 5C1.2. During the sentencing hearing, the district
court expressly stated that, although it might be inclined to do so, the
court could not grant a downward departure below the statutory minimum
sentence because it was “bound by the law.” Id. On appeal, we
explained that refusing to depart is in violation of law only if the
court mistakenly believed that it lacked the authority to depart. Id.
Here, the court expressly stated that it would have sentenced Lopez
below the statutory minimum sentence if permitted to do so by law.3 The

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court’s mistaken belief constitutes a violation of law under our
precedent. Therefore, we vacate Lopez’s sentence and remand for
resentencing.
For the above reasons, the sentence is VACATED, and the case is
REMANDED for re-sentencing.
VACATED and REMANDED.

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