United States v. Ocampo, Alfonso ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 12, 2007
Decided June 27, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3070
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 05 CR 729-1
ALFONSO OCAMPO,
Defendant-Appellant. Milton I. Shadur
Judge.
ORDER
Alfonso Ocampo pleaded guilty to one count of conspiracy to possess with the
intent to distribute cocaine, 21 U.S.C. § 846, and received the mandatory minimum
sentence of sixty months’ imprisonment, followed by four years’ supervised release.
On appeal, Ocampo argues that the district court should have treated his criminal
history score of four as merely advisory and sentenced him under the so-called
“safety valve provision,” 18 U.S.C. § 3553(f), the statute which permits below-
mandatory minimum sentences when a criminal history score is not more than one.
Because the district court did not have discretion to impose a sentence below the
mandatory minimum where Ocampo’s criminal history score exceeded one, we
affirm.
No. 06-3070 Page 2
In August 2005 Ocampo sold two kilograms of cocaine to a confidential police
source and an undercover law enforcement agent. He was later indicted on one
count of conspiring to possess with intent to distribute cocaine, 21 U.S.C. § 846, and
one count of possessing with intent to distribute cocaine, id. § 841(a)(1). Ocampo
pleaded guilty to the first count, and the government agreed to dismiss the second
count.
Ocampo’s presentence investigation report placed his base offense level at 26,
see U.S.S.G. §§ 2D1.1(a)(3), 2D1.1(c)(7), and recommended a three-level reduction
for acceptance of responsibility, see id. § 3E1.1, leading to a total offense level of 23.
The PSR assigned one criminal history point for each of Ocampo’s two prior
convictions, one for driving under the influence of alcohol and one for driving on a
suspended or revoked driver’s license. See id. § 4A1.1(c). Two additional points
were added to his criminal history score because he committed the drug offense
while on supervision for these two earlier offenses. See id. § 4A1.1(d). Ocampo was
therefore placed in criminal history category III. The guidelines sentencing range
would normally be fifty-seven to seventy-one months’ imprisonment for this
combined offense level and criminal history, but Ocampo’s PSR set the range at
sixty to seventy-one months because of the mandatory minimum sentence of sixty
months, see 21 U.S.C. § 841(b)(1)(B)(ii)(II).
At sentencing, Ocampo conceded that the PSR’s calculations were accurate,
but argued that even though he had not met the criminal history requirements for
the safety valve provision, see 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.2(a), the court
should nevertheless impose a sentence below the mandatory minimum because he
had almost met those requirements. For example, he asserted that because his
suspended-license conviction was a misdemeanor under Illinois law, and carried a
sentence of exactly one year (had it been one day shorter, it would not have counted
toward his history score), the court had discretion not to assign—or to ignore—any
criminal history points for that offense. Ocampo reasoned that because the safety
valve eligibility depends on guideline-based criminal history scores, and because the
guidelines themselves are advisory, the district court now has discretion to sentence
below the mandatory minimum where he substantially met the safety valve
provisions. Separately, Ocampo also contended that he had provided enough
truthful information to the government to meet the requirements of § 3553(f)(5),
even though the government believed he had not fully satisfied that provision.
The court rejected Ocampo’s first argument on the grounds that § 3553(f) is a
statutory provision that must be strictly followed and that the court does not have
discretion to sentence below mandatory minimums. The court found that Ocampo
did not qualify for the safety valve reduction because he had more than one criminal
history point, see § 3553(f)(1), and therefore found it unnecessary to make a finding
on the issue of providing truthful information to the government, see § 3553(f)(5).
No. 06-3070 Page 3
On appeal Ocampo renews his argument that because United States v.
Booker, 543 U.S. 220 (2005), makes the sentencing guidelines advisory, the district
court had discretion to use the safety valve provision to sentence below the
mandatory minimum even when his criminal history exceeded the requirements of
§ 3553(f)(1). Ocampo contends that if a district court determines that a defendant’s
criminal history “essentially meets the requirements of the safety valve provision,”
it may sentence him under that provision.
We review the district court’s interpretation of the safety valve provisions de
novo, see United States v. Alvarado, 326 F.3d 857, 860 (7th Cir. 2003). Before
Booker was decided, we addressed a similar argument in United States v. Vega-
Montano, 341 F.3d 615, 619-20 (7th Cir. 2003). There we held that the district
court did not have discretion to sentence a defendant below the mandatory
minimum even if it believed, as Ocampo does here, that the defendant’s properly
calculated criminal history overstated the seriousness of his record. Since the
Supreme Court decided Booker, we have held that nothing in Booker gives a judge
any discretion to disregard a mandatory minimum sentence because Booker
rendered only the sentencing guidelines, not federal statutes, advisory. See United
States v. Roberson, 474 F.3d 432, 436-37 (7th Cir. 2007); United States v. Cannon,
429 F.3d 1158, 1160-61 (7th Cir. 2005); United States v. Duncan, 413 F.3d 680, 683
(7th Cir. 2005); United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); see also
United States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006).
Ocampo insists that he is not arguing that the eligibility requirements of the
safety value statute are now advisory. He claims that because the guideline
sentences are advisory, criminal history points are advisory, too. Therefore, he
believes, safety valve eligibility—which depends on “advisory” criminal history
scores—is flexible. But criminal history points are not themselves advisory. Even
after Booker courts must correctly calculate criminal history points. See United
States v. Stitman, 472 F.3d 983, 989 (7th Cir. 2007) (“Moreover, nothing in Booker
changed the way that criminal history is calculated under the Guidelines.”).
Although guideline sentences based on criminal history points are advisory,
statutory sentences based on those points are not. See Roberson, 474 F.3d at 436-
37. The reason is that under Booker judges themselves may still assess criminal
history and issue sentences accordingly without violating the sixth amendment.
See Booker, 543 U.S. at 264. Consequently, the district court did not have
discretion to sentence below the mandatory minimum where Ocampo’s criminal
history score, it is conceded, did not meet the requirements of the only statute that
would permit such a deviation. Other circuits considering this issue have similarly
held that post-Booker the courts have no authority to treat criminal history points
as advisory for the purpose of granting safety valve relief from a mandatory
minimum sentence. See United States v. Hernandez-Castro, 473 F.3d 1004, 1006
(9th Cir. 2007); United States v. McKoy, 452 F.3d 234, 239 (3d Cir. 2006); United
No. 06-3070 Page 4
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).
Ocampo also argues that the district court should have made a finding on
whether Ocampo did not meet the requirements of § 3553(f)(5) to provide truthful
information to the government. Ocampo contends that we should order a limited
remand to permit the district court to do so. This argument also lacks merit. The
court made no finding with respect to § 3553(f)(5) because it found that Ocampo was
not entitled to the safety valve reduction due to his criminal history, see § 3553(f)(1).
Ocampo has not argued that the district court erred in computing his criminal
history, and because its finding on that issue was sufficient to foreclose safety valve
relief, no remand is warranted.
AFFIRMED.