USCA11 Case: 22-11552 Document: 25-1 Date Filed: 05/18/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11552
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IMMER ELLIAZAR GUEVARA-RAMOS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:20-cr-00019-LAG-TQL-2
____________________
USCA11 Case: 22-11552 Document: 25-1 Date Filed: 05/18/2023 Page: 2 of 6
2 Opinion of the Court 22-11552
Before ROSENBAUM, JILL PRYOR, and EDMONDSON, Circuit Judges.
PER CURIAM:
Immer Guevara-Ramos appeals the 120-month sentence im-
posed after he pleaded guilty to conspiracy to possess with intent
to distribute methamphetamine (a violation of
21 U.S.C. §§
841(a)(1), (b)(1)(A)(viii) and 846). 1 Guevara-Ramos contends that
the district court determined erroneously that he was ineligible for
relief under the safety-valve provision in
18 U.S.C. § 3553(f). Re-
versible error has been shown; we vacate the sentence and remand
for resentencing.
Before Guevara-Ramos’s sentencing, a probation officer pre-
pared a Presentence Investigation Report (“PSI”). According to the
PSI, Guevara-Ramos received three criminal history points for his
2008 Georgia convictions for drug-trafficking and for obstructing
an officer. None of Guevara-Ramos’s other prior criminal convic-
tions resulted in criminal history points. The PSI then assigned
Guevara-Ramos two criminal history points for committing the in-
stant offense while serving a prior sentence. So, Guevara-Ramos
had a total of five criminal history points.
Based on the total offense level and applicable criminal his-
tory category, the PSI showed Guevara-Ramos’s advisory guide-
lines range as between 97 and 121 months’ imprisonment. Because
1 Guevara-Ramos does not appeal his conviction.
USCA11 Case: 22-11552 Document: 25-1 Date Filed: 05/18/2023 Page: 3 of 6
22-11552 Opinion of the Court 3
Guevara-Ramos’s offense had a statutory mandatory minimum
sentence of 10 years, Guevara-Ramos’s guidelines range became
120 to 121 months.
In his objections to the PSI and at the sentencing hearing,
Guevara-Ramos argued that he was eligible for safety-valve relief
under
18 U.S.C. § 3553(f): a provision that would allow him to be
sentenced below the statutory mandatory minimum sentence.
The district court acknowledged that the proper interpreta-
tion of section 3553(f) was still “up in the air” pending this Court’s
en banc decision in United States v. Garcon, No. 19-14650. Never-
theless, the district court rejected Guevara-Ramos’s interpretation
of section 3553(f). The district court concluded that -- because Gue-
vara-Ramos had more than four criminal history points and had a
prior three-point offense -- he was ineligible for relief under section
3553(f).
The district court sentenced Guevara-Ramos to the manda-
tory minimum sentence of 120 months’ imprisonment. The dis-
trict court said, however, that -- if Guevara-Ramos had been eligi-
ble for relief under section 3553(f) -- the district court would have
imposed a sentence of 72 months.
After Guevara-Ramos was sentenced -- and while this appeal
was pending -- we issued our decision in United States v. Garcon,
54 F.4th 1274 (11th Cir. 2023) (en banc), in which we addressed the
proper interpretation and application of the safety-valve provision
in section 3553(f).
USCA11 Case: 22-11552 Document: 25-1 Date Filed: 05/18/2023 Page: 4 of 6
4 Opinion of the Court 22-11552
The safety-valve provision in
18 U.S.C. § 3553(f), as
amended by the First Step Act, 2 provides that a district court may
-- under some circumstances -- sentence a defendant convicted of
certain crimes (including offenses under
21 U.S.C. §§ 841 and 846)
“without regard to any statutory mandatory minimum sentence.”
See
18 U.S.C. § 3553(f). To be eligible for safety-valve relief, a de-
fendant must satisfy each of five numbered subsections. See id.;
Garcon, 54 F.4th at 1277. Pertinent to this appeal, the first subsec-
tion requires the district court to make the following determina-
tion:
(1) the defendant does not have --
(A) more than 4 criminal history points,
excluding any criminal history points resulting
from a 1-point offense, as determined under
the sentencing guidelines;
(B) a prior 3-point offense, as deter-
mined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as de-
termined under the sentencing guidelines[.]
18 U.S.C. § 3553(f)(1) (emphasis added).
2 First Step Act of 2018,
Pub. L. No. 115-391, § 402,
132 Stat. 5194, 5221 (2018).
USCA11 Case: 22-11552 Document: 25-1 Date Filed: 05/18/2023 Page: 5 of 6
22-11552 Opinion of the Court 5
In Garcon, we determined -- based on the ordinary meaning
of the word “and” -- that a defendant “loses eligibility for relief only
if all three conditions in subsections (A) through (C) are satisfied.”
Garcon, 54 F.4th at 1278. In Garcon’s case, the defendant had a
prior three-point offense but did not have either four criminal his-
tory points or a prior two-point violent offense. Id. Because the
defendant met only subsection (B) -- and not subsections (A) or (C)
-- we concluded that the defendant was eligible for safety-valve re-
lief under section 3553(f). See id.
Our decision in Garcon controls the outcome of this appeal.
That Guevara-Ramos has more than four criminal history points
and has a prior three-point offense -- and thus satisfies subsections
(A) and (B) -- is undisputed. But Guevara-Ramos has no prior two-
point violent offense for purposes of subsection (C). Because Gue-
vara-Ramos has not satisfied “all three conditions in subsections (A)
through (C),” he remains eligible for safety-valve relief under sec-
tion 3553(f). See id.
After our decision in Garcon issued, the government filed a
notice of supplemental authority. In its notice, the government
conceded that Garcon resolved the only issue in this appeal in favor
of Guevara-Ramos. The government, however, also advised that
the Eighth Circuit -- in United States v. Pulsifer,
39 F.4th 1018 (8th
Cir. 2022) -- decided this issue differently than we did in Garcon.
The Supreme Court has since granted certiorari in Pulsifer. In the
light of these developments, the government requests that we stay
USCA11 Case: 22-11552 Document: 25-1 Date Filed: 05/18/2023 Page: 6 of 6
6 Opinion of the Court 22-11552
further consideration of this appeal until after the conclusion of lit-
igation on this issue in the Supreme Court. We deny this request.
The Supreme Court will do as it chooses at a time it chooses.
In the meantime, we are bound by our en banc decision in Garcon.
See United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008)
(“Under [our prior-panel-precedent] rule, a prior panel’s holding is
binding on all subsequent panels unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or
by this court sitting en banc.”). We have stressed that the Supreme
Court’s grant of certiorari alone does not change the law of this
Circuit. See Gissendaner v. Ga. Dep’t of Corr.,
779 F.3d 1275, 1284
(11th Cir. 2015). “Until the Supreme Court issues a decision that
actually changes the law, we are duty-bound to apply this Court’s
precedent and to use it and any existing decisions of the Supreme
Court” to rule on a party’s claims.
Id. (denying a defendant’s mo-
tion for a stay of execution premised in part on the Supreme
Court’s grant of certiorari in another case).
In the light of our decision in Garcon, the pertinent law for
us is now settled; we must conclude that the district court erred in
determining that Guevara-Ramos was ineligible for safety-valve re-
lief under section 3553(f). We vacate Guevara-Ramos’s sentence
and remand for resentencing.
VACATED AND REMANDED.
