United States v. Washington ( 2023 )

Case: 21-30339 Document: 00516653272 Page: 1 Date Filed: 02/23/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 21-30339 FILED
February 23, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Nolan Washington,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:19-CR-394-9
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Nolan Washington pleaded guilty pursuant to a written plea
agreement, without an appeal waiver, to conspiracy to distribute
methamphetamine and to possess methamphetamine with the intent to
distribute it, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(a), and 846. The
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-30339 Document: 00516653272 Page: 2 Date Filed: 02/23/2023
No. 21-30339
district court sentenced Washington to 120 months of imprisonment—the
statutory mandatory minimum—and five years of supervised release.
In his sole issue on appeal, Washington argues that the district court
reversibly erred by not departing below the statutory mandatory minimum
based on the safety-valve provision of 18 U.S.C. § 3553(f). In the district
court, Washington relied primarily on the reasoning in United States v. Lopez,
998 F.3d 431, 433 (9th Cir. 2021), but he did not discuss the reasoning in that
case or explain why he was eligible for relief under § 3553(f). Now, he argues
that the word “and” in § 3553(f)(1) should be interpreted to mean that a
defendant is ineligible for safety-valve relief only if all three disqualifying
conditions apply and that, based on that interpretation, he is eligible for relief
because he does not have a two-point violent offense, under § 3553(f)(1)(C).
We do not resolve whether Washington properly preserved this issue
because he cannot show that the district court erred, plainly or otherwise, by
refusing to apply § 3553(f)’s safety-valve provision to depart below the
statutory minimum in light of United States v. Palomares, 52 F.4th 640 (5th
Cir. 2022), petition for cert. filed (U.S. Dec. 21, 2022) (No. 22-6391), which
was decided while this appeal was pending. See United States v. Rodriguez,
602 F.3d 346, 361 (5th Cir. 2010). Using a “distributive approach” to
interpret § 3553(f)(1), the majority panel concluded that criminal defendants
are “ineligible for safety valve relief under § 3553(f)(1) if they run afoul of any
one of its requirements.” Palomares, 52 F.4th at 647 (emphasis added).
Thus, because Washington ran afoul of § 3553(f)(1)(B)’s requirement that he
not have a prior three-point offense under the guidelines—which he does not
dispute—he was ineligible for relief under § 3553(f). See id.
Accordingly, the district court’s judgment is AFFIRMED.
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