United States v. Mario Scruggs , 436 F. App'x 617 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0730n.06
FILED
No. 09-6450
Oct 26, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
United States of America, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) WESTERN DISTRICT OF
) TENNESSEE
Mario Scruggs, )
)
Defendant-Appellant. ) OPINION
BEFORE: BOGGS and McKEAGUE, Circuit Judges; and GOLDSMITH,* District Judge.
McKEAGUE, Circuit Judge. Defendant Mario Scruggs appeals his sentence, disputing an
enhancement for possession of a firearm and denial of the statutory safety valve. Because Defendant
has not met all safety-valve criteria and any error in the sentencing enhancement is harmless, we
AFFIRM the district court’s sentence.
I. Background
Scruggs pleaded guilty to one count of conspiracy to possess with intent to distribute at least
500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). This offense carries with it
a 120-month statutory minimum sentence. 21 U.S.C. § 846. At the sentencing hearing, the district
court applied a two-level enhancement for possession of a firearm during the offense, under §
*
Hon. Mark A. Goldsmith, United States District Judge for the Eastern District of Michigan,
sitting by designation.
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U.S.A. v. Scruggs
2D1.1(b)(1) of the Sentencing Guidelines, finding that Scruggs both constructively possessed a
weapon during the offense and that it was reasonably foreseeable to Scruggs that his coconspirator
would possess a weapon. The district court also found Scruggs to be ineligible for the safety valve
under § 5C1.2, which provision allows the district court to sentence below a statutory minimum if
five criteria are met. With the firearm enhancement, a reduction for acceptance of responsibility
under § 3E1.1, and a criminal history category of I, the advisory Guidelines range fell between
108-135 months. Pursuant to the statutory minimum, the Guidelines range was 120-135 months.
The district court sentenced Scruggs to 120 months. On appeal, Scruggs contests the finding of
firearm possession and denial of the safety valve.
II. Analysis
A. Standard of Review
The district court’s factual determination of whether a statute or sentencing guideline applies
in a particular case is reviewed for clear error. United States v. O’Dell, 247 F.3d 655, 674 (6th Cir.
2001). A defendant seeking a downward departure from an otherwise applicable sentence bears the
burden of proving he is entitled to the reduction by a preponderance of the evidence. United States
v. Adu, 82 F.3d 119, 123-24 (6th Cir. 1996).
B. Application of the Safety Valve
Section 5C1.2(a) of the Sentencing Guidelines, the “safety-valve” provision, directs a
sentencing court to sentence without regard to a statutory minimum for certain drug-related offenses
if five criteria are met. This provision was originally enacted as part of the Violent Crime Control
and Law Enforcement Act of 1994 and is codified at 18 U.S.C. § 3553(f). See U.S.S.G. § 5C1.2
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background note (2009). There is no dispute that Scruggs meets the first, third, and fourth criteria.
The district court denied application of the safety valve on finding that he did not meet the second
criterion, that “the defendant did not . . . possess a firearm or other dangerous weapon . . . in
connection with the offense,” and the fifth criterion, that “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.” U.S.S.G. § 5C1.2(a)(2), (5).
On appeal, Scruggs challenges only the finding of firearm possession, not the determination
that he failed to truthfully provide all information and evidence concerning the offense to the
Government. He argues that with only one factor blocking application of the safety valve reduction,
it would be appropriate for the sentencing court to vary from the Guidelines.
Scruggs’s argument is unavailing in the context of statutory minima. This Circuit has held
that United States v. Booker, 543 U.S. 220 (2005) (rendering the Guidelines advisory), and
Kimbrough v. United States, 552 U.S. 85 (2007) (allowing district courts to vary from otherwise
applicable Guidelines based on policy disagreements) did not affect statutory minima and their
statutorily enacted exceptions. United States v. Branch, 537 F.3d 582, 593-95 (6th Cir. 2008)
(“Booker and its progeny did not invalidate the criteria established by Congress for sentencing a
defendant below the statutory minimum sentence.”); United States v. Patterson, 145 F. App’x 988,
991 (6th Cir. 2005) (“Booker did not strike down the statutory safety valve.”). This is because
Booker severed only those provisions of the Federal Sentencing Act that required district courts to
follow the Guidelines, namely 18 U.S.C. §§ 3553(b)(1) and 3742(e). Booker, 543 U.S. at 259;
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Branch, 537 F.3d at 592. The rest of the Act was left intact, Booker, 543 U.S. at 259, which part
included statutory minima and their exceptions. See Branch, 537 F.3d at 592 (citing United States
v. Gonzalez, 257 F. App’x 932, 947 (6th Cir. 2007).
As district courts are without discretion in applying an exception to a statutory minimum, a
defendant must meet “each and every criterion” in order to be eligible for safety-valve relief. United
States v. Bazel, 80 F.3d 1140, 1142 (6th Cir. 1996). Scruggs has not met the fifth criterion and does
not challenge the district court’s determination on that issue.1 His failure to meet even one criterion
precludes him from safety-valve eligibility.
C. Firearm Possession
Any alleged error in the district court’s finding of firearm possession is harmless. Scruggs
received the statutory minimum of ten years for his offense. Because he received the lowest possible
sentence under the statute, any enhancement, whether applied in error or not, had no effect on his
sentence. In addition, the finding of firearm possession does not affect application of the safety
valve for the reasons explained above. Thus, we conclude that the enhancement issue is moot and
affirm on the basis of Scruggs’s failure to meet the safety-valve requirements.
III. Conclusion
For these reasons, we AFFIRM the district court’s sentence.
1
Issues not raised in a party’s opening brief are waived. Miller v. Admin. Office of the Courts,
448 F.3d 887, 893 (6th Cir. 2006).
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