United States v. Martin Salazar ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50060
Plaintiff-Appellant, D.C. No.
2:18-cr-00173-
v. GW-DMG-66
MARTIN SALAZAR,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted February 8, 2023
Pasadena, California
Filed March 8, 2023
Before: Mary M. Schroeder, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Tallman
2 UNITED STATES V. SALAZAR
SUMMARY *
Criminal Law
The panel vacated a sentence and remanded for
resentencing in a case in which the district court granted
Martin Salazar, who pled guilty to conspiring to distribute
controlled substances within the Los Angeles County Jail
system, safety-valve relief from the mandatory minimum of
five years’ imprisonment under 18 U.S.C. § 3553(f).
Relevant to this appeal is 18 U.S.C. § 3553(f)(5):
[The district court must find 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, but
the fact that the defendant has no relevant or
useful other information to provide or that the
Government is already aware of the
information shall not preclude a
determination by the court that the defendant
has complied with this requirement.
The panel held that the district court erred by failing to
make the requisite finding to support its application of the
safety valve. Section 3553(f) requires the district court to
make specific findings “at sentencing,” including that “the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SALAZAR 3
defendant has truthfully” proffered, before it can apply the
safety valve. The district court made no such finding
here. Instead, the district court concluded a proffer would
be futile because it could not determine “what else the
proffer [would] accomplish” given Salazar’s limited
involvement and the government’s knowledge of his
offenses. The panel held that this was error because there is
no futility exception to the proffer requirement in §
3553(f)(5). The panel wrote that even if Salazar had no
further knowledge of the conspiracy, he should have at least
communicated that fact to the government in order to qualify
for the reduction.
The panel wrote that even if it could indulge Salazar’s
request to assume that the district court implicitly found that
his plea agreement constituted a sufficient proffer
considering the government’s independent knowledge of the
offense, Salazar’s plea agreement alone could not, on this
record, have satisfied the proffer requirement. The panel
noted that Salazar expressly acknowledged that the plea
agreement’s factual basis was “not meant to be a complete
recitation of all facts relevant to the underlying criminal
conduct or all facts known to him,” and that the plea
agreement raises more questions than it answers. The panel
wrote that the district court’s assumption regarding the
nature of Salazar’s offense conclusively demonstrates that
his plea agreement could not suffice as a written proffer.
The panel concluded that, on this record, the district
court erred in granting Salazar safety-valve relief.
4 UNITED STATES V. SALAZAR
COUNSEL
Conseulo Woodhead (argued) and Gregg Marmaro,
Assistant United States Attorneys; Bram M. Alden,
Assistant United States Attorney, Criminal Appeals Section
Chief; Stephanie S. Christensen, Acting United States
Attorney; E. Martin Estrada, United States Attorney; Office
of the United States Attorney; Los Angeles, California; for
Plaintiff-Appellant.
David J. Zugman (argued), Burcham & Zugman, San Diego,
California; Robert H. Rexrode, Law Offices of Robert H.
Rexrode, San Diego, California; for Defendant-Appellee.
OPINION
TALLMAN, Circuit Judge:
Martin Salazar pled guilty to conspiring to distribute
controlled substances within the Los Angeles County Jail
(LACJ) system. At sentencing, the district court granted
Salazar safety-valve relief from the mandatory minimum of
five years’ imprisonment under 18 U.S.C. § 3553(f). The
government appeals, arguing Salazar was ineligible for
safety-valve relief because he never proffered what he knew
to prosecutors as required by § 3553(f)(5). We agree and
vacate Salazar’s sentence and remand for resentencing.
I
A
In March 2018, the United States filed a multi-count
indictment against numerous purported members of an
alleged conspiracy initiated by the Mexican Mafia prison
UNITED STATES V. SALAZAR 5
gang to commit various crimes within the LACJ system.
The indictment contained lengthy allegations concerning
various coconspirators, all members of the Mexican Mafia
that controlled the jails, and their drug-related activities.
Martin Salazar was indicted for conspiring to possess and
distribute controlled substances within the jail system.
Specifically, the indictment alleged that a codefendant had
smuggled 2.37 grams of heroin and 7.75 grams of
methamphetamine into the LACJ system. Salazar then took
possession of the drugs to hide them from deputies
conducting a cell search and to further distribute them within
the jail.
Salazar subsequently agreed to plead guilty to count six
of the indictment: conspiring to distribute controlled
substances in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(B)(viii). Salazar admitted the following factual
basis as part of his plea agreement: (1) a conspiracy existed
to distribute controlled substances within the LACJ system;
(2) Salazar knowingly joined that conspiracy; and (3)
Salazar furthered the goals of the conspiracy by hiding
controlled substances on and in his person. Salazar
acknowledged that the statutory minimum sentence for his
crime was five years’ imprisonment. See § 841(b)(1)(B).
Salazar had a lengthy criminal history when he faced
sentencing. With a total offense level of 21 points and a
criminal history category of VI, Salazar scored a guideline
imprisonment range of 77-96 months’ imprisonment, U.S.
Sent’g Guidelines Manual § 5A (U.S. Sent’g Comm’n
2021), well above the mandatory minimum of 60 months. In
his sentencing memorandum, however, Salazar argued he
was entitled to safety-valve relief from the five-year
mandatory minimum because he met all the criteria in 18
U.S.C. § 3553(f)(1)-(5). If relieved of the mandatory
6 UNITED STATES V. SALAZAR
minimum, Salazar argued he would also be entitled to seven
points of downward departure, resulting in a guideline range
of 37-46 months. U.S.S.G. § 5A. The government argued
Salazar was ineligible for safety-valve relief because he had
not yet “truthfully provided to the Government all
information and evidence [he had] concerning the offense or
offenses that were part of the same course of conduct or of a
common scheme or plan” as required by § 3553(f)(5). 1
B
At the sentencing hearing, the district court sought
further clarification of the precise nature of Salazar’s crime
and his level of culpability, notwithstanding its review of the
presentencing materials and his plea agreement.
Accordingly, the district court sought an explanation
concerning the length and nature of Salazar’s participation
in the conspiracy from both parties. Salazar’s counsel
argued that his client’s participation in the conspiracy
“began and ended on the same day.” According to defense
counsel’s rendition of the facts, the codefendant had himself
arrested for the purposes of smuggling the drugs into the jail.
After deputies removed the codefendant from his cell,
1
The government also argued below, and on appeal, that Salazar was
alternatively ineligible for safety-valve relief under 18 U.S.C. §
3553(f)(1) because of his extensive criminal history. The government
points out that Salazar represents precisely the kind of career offender
that it argued should be ineligible for safety-valve relief in United States
v. Lopez, 998 F.3d 431, 437-40 (9th Cir. 2021) (rejecting the
government’s argument and holding a defendant must have more than 4
criminal history points, a prior 3-point offense, and a prior 2-point
violent offense to be ineligible under (f)(1)). Because the government
acknowledges this argument is presently foreclosed by Lopez, we decline
to address it. See United States v. Lopez, 58 F.4th 1108 (9th Cir. 2023)
(denying petition for rehearing en banc).
UNITED STATES V. SALAZAR 7
Salazar took possession of the drugs ostensibly to curry
favor with members of the conspiracy. Salazar’s counsel
also explained that while Salazar would not proffer at the
hearing, counsel had previously offered to provide the
government with a written proffer, but the government never
responded.
Although the government did not dispute defense
counsel’s version of events, the government maintained its
position that Salazar had not met his obligation to truthfully
proffer all that he knew but also indicated that it would be
satisfied with a written proffer if provided an opportunity to
challenge the proffer’s veracity. The district court offered a
continuance for Salazar to draft a written proffer, but Salazar
rejected the offer, arguing the government knew everything
about the offense from his post-arrest statement, recorded
jail phone calls, and plea agreement.
The district court did not “buy” Salazar’s argument that
his sentencing memorandum could suffice as a proffer,
explaining “a proffer is a proffer.” But it nevertheless
“accept[ed] the defense position that [it could] utilize the
safety valve” because the court agreed with the defense that
the government already possessed the relevant facts. The
district court then sentenced Salazar to 42 months’
imprisonment. When asked by the government to clarify its
reasoning for the record, the district court explained that “in
this particular situation, given the nature of what transpired,
. . . I don’t know what else the proffer is going to
accomplish.”
The government appeals, arguing the district court erred
by concluding that Salazar either was excused from, or had
complied with, his obligation to truthfully proffer under §
3553(f)(5).
8 UNITED STATES V. SALAZAR
II
“We review de novo a district court’s interpretation of a
statute.” United States v. Lopez, 998 F.3d 431, 434 (9th Cir.
2021). “However, we review for clear error the district
court’s factual determination that a particular defendant is
eligible for relief under section 3553(f).” United States v.
Shrestha, 86 F.3d 935, 938 (9th Cir. 1996). Our review “is
deferential, and we must accept the district court’s factual
findings unless we are ‘left with a definite and firm
conviction that a mistake has been made.’” United States v.
Lizarraga-Carrizales, 757 F.3d 995, 997 (9th Cir. 2014)
(quoting United States v. Alba-Flores, 577 F.3d 1104, 1107
(9th Cir. 2009)).
III
A
Safety-valve relief under § 3553(f) applies to certain
enumerated drug offenses and requires the district court to
“impose a sentence pursuant to [the sentencing]
guidelines . . . without regard to any statutory minimum
sentence” if the defendant meets the criteria listed in §
3553(f)(1)-(5). Relevant to this appeal is subsection (f)(5):
[The district court must find 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, but
the fact that the defendant has no relevant or
useful other information to provide or that the
Government is already aware of the
UNITED STATES V. SALAZAR 9
information shall not preclude a
determination by the court that the defendant
has complied with this requirement.
“Congress enacted § 3553(f) to rectify an inequity in [the
drug sentencing] system, whereby more culpable defendants
who could provide the Government with new or useful
information about drug sources fared better . . . than lower-
level offenders, such as drug couriers or ‘mules,’ who
typically have less knowledge.” Shrestha, 86 F.3d at 938.
The safety valve “remedies this situation by [requiring] the
sentencing court to disregard the statutory minimum in
sentencing . . . nonviolent drug offenders who played a
minor role in the offense and who ‘have made a good-faith
effort to cooperate with the government.’” Id. (quoting
United States v. Arrington, 73 F.3d 144, 147 (7th Cir.
1996)); see also United States v. Rangel-Guzman, 752 F.3d
1222, 1226 (9th Cir. 2014) (safety-valve relief mandatory
when defendant meets criteria).
To that end, § 3553(f)(5) of the safety valve creates a
“tell all you can tell” requirement: “the defendant must
provide, prior to sentencing, all information at his disposal
which is relevant to the offense, whether or not it is relevant
or useful to the government’s investigation.” Shrestha, 86
F.3d at 939 (quoting United States v. Acosta-Olivas, 71 F.3d
375, 379 (10th Cir. 1995)). “The phrase ‘all information and
evidence’ is quite broad. There is no limit placed on the type
of information that must be provided.” United States v.
Thompson, 81 F.3d 877, 879 (9th Cir. 1996). For example,
such “information includes details concerning other parties
to the crime, such as the source who provided defendant with
the drugs and other persons in the chain of distribution, if
known.” Shrestha, 86 F.3d at 939. “If the defendant does
10 UNITED STATES V. SALAZAR
not possess such information, ‘he at least should
[communicate] that fact to the government in order to
qualify for the reduction.’” Id. (alteration in original)
(quoting United States v. Rodriguez, 69 F.3d 136, 143 (7th
Cir. 1995)).
A proffer can be written or oral “because the safety valve
‘allows any provision of information in any context to
suffice, so long as the defendant is truthful and complete.’”
United States v. Mejia-Pimental, 477 F.3d 1100, 1107 n.12
(9th Cir. 2007) (quoting United States v. Real-Hernandez,
90 F.3d 356, 361 (9th Cir. 1996)). “Where a fact relevant to
sentencing is disputed, the district court must provide the
parties a reasonable opportunity to present information to the
court.” Real-Hernandez, 90 F.3d at 362 (internal quotations
omitted). And the district court “must provide its reasons for
applying or declining to apply the safety-valve provision.”
Rangel-Guzman, 752 F.3d at 1226.
B
The district court erred by failing to make the requisite
finding to support its application of the safety valve. Section
3553(f) requires the district court to make specific findings
“at sentencing,” including that “the defendant has truthfully”
proffered, before it can apply the safety valve. The district
court made no such finding here. Instead, the district court
concluded a proffer would be futile because it could not
determine “what else the proffer [would] accomplish” given
Salazar’s limited involvement and the government’s
knowledge of his offenses. This was error.
We hold that there is no futility exception to the proffer
requirement in § 3553(f)(5). Salazar was required to
“provide, prior to sentencing, all information at his disposal
which is relevant to the offense, whether or not it is relevant
UNITED STATES V. SALAZAR 11
or useful to the government’s investigation.” Shrestha, 86
F.3d at 939 (emphasis added). Although defendants are not
disqualified from safety-valve relief merely because the
government already possesses the relevant information, a
defendant must still “provide[] all the information he
possesses, regardless of whether the information assists the
Government or not.” Thompson, 81 F.3d at 881. Even if
Salazar had no further knowledge of the conspiracy, he
should have at least communicated “that fact to the
government in order to qualify for the reduction.” Shrestha,
86 F.3d at 939 (quoting Rodriguez, 69 F.3d at 143).
Futility is not a basis for circumventing § 3553(f)(5)’s
proffer requirement. The district court erred by failing to
find “that the defendant ha[d] otherwise complied with the
paragraph’s requirements.” Thompson, 81 F.3d at 881
(emphasis added) (quoting H.R. Rep. No. 103-460 (1994)).
C
Salazar urges us to assume that the district court
implicitly found that his plea agreement constituted a
sufficient proffer considering the government’s independent
knowledge of the offense and to affirm his sentence on that
basis. Even if we could indulge Salazar, such a finding has
no basis in the record. On this record, Salazar’s plea
agreement alone could not have satisfied the proffer
requirement.
Salazar expressly acknowledged when he signed the plea
agreement that the factual basis contained therein was “not
meant to be a complete recitation of all facts relevant to the
underlying criminal conduct or all facts known to” him.
Consistent with this acknowledgment, Salazar’s plea
agreement raises more questions than it answers. For
example, to support his plea of guilty, Salazar admitted to
12 UNITED STATES V. SALAZAR
knowingly joining a conspiracy to distribute controlled
substances within the LACJ system governed by the rules of
the Mexican Mafia. He also admitted that he was aware of
the location of hidden drugs within the jail and secreted those
drugs in his body to hide them from deputies. Based on these
admissions, “it would be logical to infer that he had more
information or evidence about the operation than he had
previously provided.” United States v. Hieng, 679 F.3d
1131, 1144 (9th Cir. 2012). For example, a complete proffer
might have addressed the following questions: How did
Salazar become aware of the ongoing conspiracy? Who are
its leaders? How does it function? How do members
smuggle drugs? Where and how do they hide them? How
did Salazar know where the specific drugs at issue were
hidden? How did he know that deputies were looking for
them? The district court should not have assumed on this
record that Salazar had no further relevant information.
The district court’s assumption regarding the nature of
Salazar’s offense conclusively demonstrates that his plea
agreement could not suffice as a written proffer. Although
Salazar “stipulated to the basic details of his offense conduct
[in his plea agreement], he made no further efforts to
cooperate.” Thompson, 81 F.3d at 880 (quoting Arrington,
73 F.3d at 148). His “counsel conceded as much at the
sentencing hearing” when he explained that Salazar did not
wish to proffer for fear of retribution. United States v.
Garcia-Sanchez, 189 F.3d 1143, 1150 (9th Cir. 1999).
That may well be so. Being labeled a “snitch” or a “rat”
undoubtedly carries significant risks for inmates. But that is
a risk Congress has established in the statutory scheme and
which every defendant must face in order to qualify for
UNITED STATES V. SALAZAR 13
safety-valve relief. 2 “If the defendant chooses to not comply
with subsection 5, he is not entitled to application of the
safety valve even though he may be a less culpable
offender.” Thompson, 81 F.3d at 879. On this record, the
district court erred in granting Salazar safety-valve relief.
IV
The district court could not grant Salazar safety-valve
relief without first finding that he had complied with the
statutory proffer requirement. On the record below, the
district court did not, and could not, make that finding.
Accordingly, we VACATE the sentence and REMAND for
resentencing consistent with this opinion.
2
The judiciary understands these risks are a serious problem in the
federal prisons, and the U.S. Judicial Conference’s Task Force on
Protecting Cooperators is taking affirmative steps to protect defendants
who provide information to the government. See Jud. Conf. of the U.S.,
Report of the Proceedings 14 (Mar. 13, 2018),
https://www.uscourts.gov/about-federal-courts/reports-proceedings-
2010s (noting efforts “to counteract the misuse of court records to
identify and harm cooperators”). These efforts include revising the
judiciary’s electronic records “to reduce the identification of
cooperators,” Comm. on Rules of Prac. and Proc., Standing Committee
Minutes 4 (Jan. 4, 2018), https://www.uscourts.gov/rules-
policies/archives/meeting-minutes/committee-rules-practice-and-
procedure-january-2018; see also Advisory Comm. on Crim. Rules,
Report to the Standing Committee 9 (Dec. 16, 2019),
https://www.uscourts.gov/rules-policies/archives/committee-
reports/advisory-committee-criminal-rules-december-2019, and
revising judicial forms to avoid any public indication of a defendant’s
cooperator status, see Jud. Conf. of the U.S., Report of the Proceedings
12 (Sept. 17, 2019), https://www.uscourts.gov/about-federal-
courts/reports-proceedings-2010s.