United States v. 2007-01-11 | 06-10074 | USA VHERNANDEZ-CASTRO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 06-10074
Plaintiff-Appellee, D.C. No.
v.  CR-04-00460-LDG
ESTEBAN HERNANDEZ-CASTRO, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Argued and Submitted
November 14, 2006—San Francisco, California
Filed January 12, 2007
Before: A. Wallace Tashima and M. Margaret McKeown,
Circuit Judges, and David O. Carter,* District Judge.
Opinion by Judge McKeown
*The Honorable David O. Carter, United States District Judge for the
Central District of California, sitting by designation.
419

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COUNSEL
Rene L. Valladares, Assistant Federal Public Defender
(argued), Arthur L. Allen, Assistant Federal Public Defender,
Las Vegas, Nevada, for the appellant.
Ray Gattinella, Assistant United States Attorney, Las Vegas,
Nevada, for the appellee.
OPINION
McKEOWN, Circuit Judge:
Under 18 U.S.C. § 3553(f), known as the “safety valve”
provision, a defendant may be sentenced below the applicable
statutory minimum if certain conditions are met, including not
having “more than 1 criminal history point, as determined
under the sentencing guidelines.” Id. § 3553(f)(1). The issue
we consider is whether, following the Supreme Court’s deci-
sion in United States v. Booker, 543 U.S. 220 (2005), the
United States Sentencing Guidelines are advisory for pur-
poses of calculating criminal history points under
§ 3553(f)(1).
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This is an issue of first impression in this circuit and we
join our sister circuits in holding that Booker left intact the
requirement of § 3553(f)(1) that a defendant “not have more
than 1 criminal history point.” Section 3553(f)(1) is not, by
virtue of its reference to the Sentencing Guidelines, rendered
advisory by Booker. See United States v. McKoy, 452 F.3d
234, 239 (3d Cir. 2006); United States v. Brehm, 442 F.3d
1291, 1300 (11th Cir. 2006); United States v. Barrero, 425
F.3d 154, 157-58 (2d Cir. 2005); United States v. Bermudez,
407 F.3d 536, 544-45 (1st Cir. 2005); see also United States
v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005) (interpreting
U.S.S.G. § 5C1.2(a)(2) safety valve provision). We also reaf-
firm our pre-Booker holding in United States v. Valencia-
Andrade, 72 F.3d 770, 774 (9th Cir. 1995), that courts have
no authority to adjust criminal history points for the purpose
of granting safety valve relief from a mandatory minimum
sentence.
Esteban Hernandez-Castro pled guilty to one count of con-
spiracy to possess with intent to distribute 4,000 grams or
more of methamphetamine in violation of 21 U.S.C. § 841(a),
which carries a minimum sentence of 120 months in prison.
21 U.S.C. § 841(b)(1)(A). This minimum sentence is not a
Guidelines sentence, but rather is statutorily imposed by § 841
itself.
The safety valve provision sets out criteria under which the
statutory minimum “shall” be ignored if the defendant meets
five requirements. See 18 U.S.C. § 3553(f). Only the first
requirement is at issue:
(1) the defendant does not have more than 1 criminal
history point, as determined under the sentencing
guidelines.
Id. § 3553(f)(1). There is no dispute that Hernandez-Castro
met the other conditions.
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The district court found that Hernandez-Castro had two
prior convictions: one for Attempted Possession of a Con-
trolled Substance and another for Battery Domestic Violence.
Each conviction was assigned a single criminal history point
under the Guidelines, bringing Hernandez-Castro’s criminal
history total to two points. Consequently he did not meet the
first requirement of § 3553(f).
The district court concluded that it had no discretion to
adjust Hernandez-Castro’s criminal history points for pur-
poses of qualification for safety valve relief. Agreeing with
the Second Circuit’s reasoning in Barrero, 425 F.3d at 157-
58, the district court stated that it must “strictly abide by the
guideline determination of criminal history points for pur-
poses of determining eligibility for application of the statutory
safety valve.” The district court found Hernandez-Castro inel-
igible for relief pursuant to the safety valve provision and sen-
tenced him to 121 months in prison, the low end of the
recommended 121-151 months Guidelines range.
Now, on appeal, Hernandez-Castro challenges his sentence,
arguing that the district court erred in holding that it had no
discretion to grant safety valve relief. Hernandez-Castro’s
argument is two-fold: (1) the first requirement of the safety
valve provision, § 3553(f)(1), is a creature of the Sentencing
Guidelines, and therefore was rendered advisory by Booker;
(2) even if the first requirement is not itself advisory, the dis-
trict court had discretion under the Guidelines to reduce his
criminal history points from two to one. Although our deci-
sion in United States v. Valencia-Andrade forecloses his sec-
ond argument, Hernandez-Castro asks us to reconsider that
case in light of the changed landscape post-Booker.
I. SECTION 3553(f)(1) REMAINS INTACT AFTER BOOKER.
Hernandez-Castro’s argument is founded on the premise
that Booker’s use of the word “advisory” is a magic incanta-
tion that renders any and all references to the Sentencing
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Guidelines “advisory.” He posits that because Booker made
the Sentencing Guidelines “advisory,” the first prong of the
safety valve provision must also be advisory, as it requires a
determination of criminal history under “the Sentencing
Guidelines.” See 18 U.S.C. § 3553(f)(1). Hernandez-Castro
misapprehends the reach of Booker.
[1] We begin with the understanding that Booker did not
affect the imposition of statutory minimums. See United
States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005); see
also United States v. Veith, 397 F.3d 615, 620 (8th Cir. 2006).
To understand why Booker does not affect § 3553(f), it is
helpful to summarize exactly what the Supreme Court
directed in Booker. After concluding that the “mandatory”
sentencing rules of 18 U.S.C. § 3553(b)(1) violated the Sixth
Amendment, the Court excised two statutory provisions to
remedy this constitutional infirmity: “the provision that
requires sentencing courts to impose a sentence within the
applicable Guidelines range . . . see 18 U.S.C.A. § 3553(b)(1)
(Supp. 2004) and the provision that sets forth the standards of
review on appeal . . . .” Booker, 543 U.S. at 259. The Court
emphasized that “the remainder of the [Sentencing Guide-
lines] Act satisfies the Court’s constitutional requirements”
and went on to note that “[t]he remainder of the Act ‘func-
tion[s] independently.’ ” Id. (citation omitted).
[2] Section 3553(f) falls squarely within the “remainder of
the Act” that is unaffected by Booker.1 In calculating criminal
history points to determine eligibility for safety valve relief,
the district court is simply ascertaining prior convictions, a
determination that passes constitutional scrutiny under
Almendarez-Torres, 523 U.S. 224, 230, 244-45 (1998), as
reaffirmed in Apprendi v. New Jersey, 530 U.S. 466, 489-90
1See United States v. Cardenas-Juarez, 469 F.3d 1331, 1334 (9th Cir.
2006) (“[T]he safety valve statute, 18 U.S.C. § 3553(f), survives Booker
to require district courts to impose sentences pursuant to the advisory Sen-
tencing Guidelines.”).
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(2000). Criminal history points under the Guidelines are thus
tied to the record of the defendant’s past convictions. See
U.S.S.G. § 4A1.1. Nothing in this scheme permits the district
court to ignore the criminal history calculation of the Guide-
lines nor does denial of safety valve relief implicate the Sixth
Amendment. See Barrero, 425 F.3d at 158 (holding there is
“no constitutional bar to a legislative instruction to a judge to
sentence the defendant to such a mandatory minimum where,
as here, the defendant is ineligible for safety valve relief
based on the court’s finding that he had more than one crimi-
nal history point”).
II. BOOKER DID NOT UNDERMINE OUR HOLDING IN
VALENCIA-ANDRADE.
Once it is established that there is no constitutional problem
with imposing a statutory minimum sentence or conditioning
a departure from that statutory minimum based on a Guide-
lines calculation of criminal history points, the remaining
question is one of Congressional intent: Did Congress intend
to permit a discretionary adjustment of the criminal history to
meet the requirement of § 3553(f)(1)? This inquiry is impor-
tant because the crux of Hernandez-Castro’s argument on this
point is that the district court should have reduced his criminal
history rating to a Category I, thereby making him eligible for
safety valve relief.
[3] We decided this precise issue in United States v.
Valencia-Andrade: “Section 3553(f) is not ambiguous. It
explicitly precludes departure from the mandatory minimum
provisions of 21 U.S.C. § 841 if the record shows that a
defendant has more than one criminal history point.” 72 F.3d
at 774. Unlike our case, in Valencia-Andrade, the district
court did adjust the defendant’s two criminal history points
down to one. Id. at 772. However, the district court ultimately
concluded, and the Ninth Circuit agreed, that such adjustment
could not be used to meet the requirement of § 3553(f)(1). Id.
at 774.
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[4] Hernandez-Castro acknowledges that Valencia-Andrade
is directly contrary to the argument he now urges before this
panel. He contends, however, that (1) Valencia-Andrade is
invalid after Booker, and (2) it was wrongly decided. Both
arguments are unpersuasive. As already noted, Booker did not
affect the imposition of statutory minimums nor did it alter
the statutory requirements of § 3553(f). As to the correctness
of Valencia-Andrade, a three-judge panel may not overturn
Ninth Circuit precedent. United States v. Hardesty, 977 F.2d
1347, 1348 (9th Cir. 1992). In any event, Hernandez-Castro
does not present a clear case for overruling Valencia-
Andrade. Hernandez-Castro candidly concedes that in 2003,
the Sentencing Commission amended U.S.S.G. § 5C1.2(a)(1)
—which reproduces the safety valve provision within the
Guidelines—to specify that the one criminal history point
requirement refers, for safety valve purposes, to the number
of points “before application of subsection (b) of 4A1.3
(Departures Based on Inadequacy of Criminal History Cate-
gory).” U.S.S.G. § 5C1.2(a)(1). Thus, we reaffirm our holding
in Valencia-Andrade that district courts have no authority to
adjust criminal history points for the purpose of determining
eligibility for safety valve relief under 18 U.S.C. § 3553(f)(1),
even when the sentencing court concludes that the criminal
history calculation overstates the severity of the prior crimes.
AFFIRMED
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