USA Vcardenas-Juarez ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30250
Plaintiff-Appellee,
v.  D.C. No.
CR-04-146-SEH
GUILLERMO CARDENAS-JUAREZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted October 16, 2006*
Seattle, Washington
Filed December 8, 2006
Before: Dorothy W. Nelson, David R. Thompson, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Thompson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
19309
UNITED STATES v. CARDENAS-JUAREZ 19311
COUNSEL
Anthony R. Gallagher, David Avery, Evangelo Arvanetes,
Federal Defenders of Montana, Great Falls, Montana, for the
defendant-appellant.
William W. Mercer, Lori Harper Suek, United States Attor-
ney’s Office, Billings, Montana, for the plaintiff-appellee.
OPINION
THOMPSON, Senior Circuit Judge:
On January 4, 2005, in the United States District Court for
the District of Montana, Guillermo Cardenas-Juarez pleaded
19312 UNITED STATES v. CARDENAS-JUAREZ
guilty to possession with intent to distribute cocaine in viola-
tion of 21 U.S.C. § 841(a)(1). After requesting briefing and
continuing the sentencing hearing, the district court concluded
that United States v. Booker, 543 U.S. 220 (2005), rendered
the statutory safety valve of 18 U.S.C. § 3553(f) advisory, and
therefore it was “trumped” by the mandatory minimum set
forth in 21 U.S.C. § 841. The district court then sentenced
Cardenas-Juarez to the mandatory minimum of sixty months
in federal prison.
Cardenas-Juarez appeals his sentence, arguing that the dis-
trict court should have applied the statutory safety valve to
relieve him from the statutory minimum. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We
vacate the sentence and remand for resentencing.
I. BACKGROUND
On July 17, 2004, after being stopped by the Montana
Highway Patrol for speeding on United States Highway 2
near Havre, Montana, Cardenas-Juarez was arrested for pos-
session of cocaine. On October 26, 2004, a grand jury in the
District of Montana handed down an indictment charging him
with possession of 500 or more grams of cocaine with the
intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
Cardenas-Juarez initially entered a plea of not guilty but later
changed his plea to guilty.
At Cardenas-Juarez’s sentencing hearing, the district court
advised counsel that it did not think it could apply 18 U.S.C.
§ 3553(f), the statutory safety valve exception to the manda-
tory minimum sentence, without concluding that the safety
valve provision required sentencing within the United States
Sentencing Commission Guidelines (“Sentencing Guidelines”
or “Guidelines”), which it understood would be a direct viola-
tion of the Supreme Court’s decision in Booker. The court,
therefore, gave counsel five days in which to file briefs
addressing the safety valve issue under Booker.
UNITED STATES v. CARDENAS-JUAREZ 19313
After counsel for both parties filed briefs asserting that the
safety valve exception to mandatory minimum sentencing is
advisory, a continued sentencing hearing was held. At that
hearing, the district court concluded that § 3553(f) required it
to sentence Cardenas-Juarez under the Sentencing Guidelines,
and such a requirement could not survive Booker. Thus, the
§ 3553(f) safety valve became advisory only. Then, because
the minimum five-year sentence in § 841 is mandatory and
§ 3553(f) is only advisory, the five-year mandatory minimum
“trumped” the safety valve statute, making it inapplicable.
Despite both parties’ arguments that the safety valve statute
could still be applied after Booker, the district court ruled to
the contrary and sentenced Cardenas-Juarez to the statutory
minimum under 21 U.S.C. § 841 — five years, or sixty
months. This appeal by Cardenas-Juarez followed.
II. APPLICATION OF THE STATUTORY
SAFETY VALVE
To ensure that the Federal Sentencing Act, 18 U.S.C.
§§ 3551-3673 (West 2000 & Supp. 2005); 28 U.S.C. §§ 991-
998 (West 1993 & Supp. 2005), did not violate the Sixth
Amendment, the Supreme Court in Booker excised the por-
tion of the Act that made the Sentencing Guidelines manda-
tory — 18 U.S.C. § 3553(b)(1) — thus “mak[ing] the
Guidelines effectively advisory.” Booker, 543 U.S. at 245.
The Court held that with § 3553(b)(1) and one other provision
regarding appellate review of mandatorily-imposed sentences
— 18 U.S.C. § 3742(e) — excised, the Federal Sentencing
Act “requires a sentencing court to consider Guidelines
ranges, but it permits the court to tailor the sentence in light
of other statutory concerns as well.” Booker, 543 U.S. at 245-
46 (citing 18 U.S.C. § 3553(a) (West Supp. 2004)).
[1] The safety valve statute, 18 U.S.C. § 3553(f), was
enacted by Congress in 1994 to “increase[ ] the consistency,
rationality, and . . . effectiveness of federal sentencing laws.”
H.R. Rep. No. 103-460, summary & purpose (1994). The
19314 UNITED STATES v. CARDENAS-JUAREZ
intent was to “increase the effectiveness of existing controlled
substance mandatory minimums by ensuring that these penal-
ties are directly targeted toward relatively more serious con-
duct.” Id.At the first sentencing hearing in Cardenas-Juarez’s case,
the district court expressed concern that the language of the
statutory safety valve made imposing a sentence within the
Guidelines obligatory, and found that requirement inconsis-
tent with the language of Booker. The specific language of the
safety valve statute that the district court quoted was: “Not-
withstanding any other provision of law, in the case of [cer-
tain] offense[s] . . . , the court shall impose a sentence
pursuant to guidelines promulgated by the United States Sen-
tencing Commission under section 994 . . . without regard to
any statutory minimum . . . .” 18 U.S.C. § 3553(f) (West
2000) (emphasis added). Ultimately, counsel for both parties
and the district court agreed that, in light of Booker, § 3553(f)
could only be read as advisory, not mandatory.1
Two district courts have published opinions on this subject.
See United States v. Cherry, 366 F. Supp. 2d 372 (E.D. Va.
2005); United States v. Duran, 383 F. Supp. 2d 1345 (D. Utah
2005).2 The Duran court determined that the safety valve stat-
1
In his brief before this court, Cardenas-Juarez clarifies that he views
the safety valve statute as mandatory, but he understands that it invokes
an advisory guideline scheme.
2
Some circuit courts have addressed the question whether the statutory
safety valve is advisory after Booker, but they have done so only in the
context of defendants who argued for discretionary application of the
safety valve where one or more of the safety valve eligibility requirements
— i.e., no more than one criminal history point, no firearm involvement,
cooperation with the government, see 18 U.S.C. § 3553(f) — had not been
satisfied. See United States v. McKoy, 452 F.3d 234, 239-40 (3d Cir.
2006); United States v. Brehm, 442 F.3d 1291, 1299-1300 (11th Cir.
2006); United States v. Barrero, 425 F.3d 154, 157-58 (2d Cir. 2005);
United States v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005). Those
courts all concluded the safety valve eligibility requirements retain their
UNITED STATES v. CARDENAS-JUAREZ 19315
ute is mandatory in that it requires a district court to consider
the Guidelines once all the provisions of the safety valve stat-
ute are satisfied. Duran, 383 F. Supp. 2d at 1348. Neverthe-
less, the Duran court recognized that the Guidelines remain
advisory under Booker so that the district court is required to
consider them, but is not required to impose a sentence
squarely within a Guidelines range. Id.The court in Duran based its holding on an interpretation
of the term “pursuant to.” See 18 U.S.C. § 3553(f) (stating
that “the court shall impose a sentence pursuant to the guide-
lines”) (emphasis added). The court concluded that “[s]o long
as the court consults the Guidelines in determining an appro-
priate sentence, any resulting sentence is ‘pursuant to’ the
Guidelines.” Duran, 383 F. Supp. 2d at 1347. The court fur-
ther based its holding on the rule of statutory construction
favoring a reading of the statute that allows it to survive con-
stitutional scrutiny. Id. at 1347-48. “Rather than read the
safety valve provision as containing a defect, it is far better to
read the provision as simply incorporating advisory Guide-
lines.” Id. at 1347.
Following the constitutional-avoidance argument in Duran,
as well as the reasoning in an unpublished Fourth Circuit
opinion, see United States v. Leslie, 46 Fed. Appx. 699, 700
(4th Cir. 2002), the Eastern District of Virginia ruled that dis-
trict courts must apply the safety valve statute to determine a
purely advisory Sentencing Guideline range that should be
considered along with other factors listed in 18 U.S.C.
§ 3553(a). Cherry, 366 F. Supp. 2d at 365-76 & n.2.
mandatory nature even after Booker. McKoy, 452 F.3d at 239-40; Brehm,
442 F.3d at 1292; Barrero, 425 F.3d at 157-58; Payton, 405 F.3d at 1173.
These holdings do not directly answer the question presently before this
court — whether the statutory safety valve’s requirement that a sentence
be imposed pursuant to the Guidelines when all of its eligibility criteria are
satisfied violates the principles articulated in Booker.
19316 UNITED STATES v. CARDENAS-JUAREZ
[2] Our court has not previously considered the specific
question whether, after Booker, the safety valve statute, 18
U.S.C. § 3553(f), is a mandatory or an advisory provision of
the Federal Sentencing Act. We have, however, held that
“Booker does not bear on mandatory minimums,” United
States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005), and
that there is no need for a jury to find facts beyond a reason-
able doubt to allow a decreased — as opposed to an increased
— sentence when applying the safety valve statute, because
in such a situation the Sixth Amendment is not implicated.
See United States v. Labrada-Bustamante, 428 F.3d 1252,
1263 (9th Cir. 2005).
[3] We now hold that the safety valve statute, 18 U.S.C.
§ 3553(f), survives Booker to require district courts to impose
sentences pursuant to the advisory Sentencing Guidelines.
This is consistent with congressional intent both to provide
relief for less serious offenders and to reduce sentencing dis-
parity. When the statutory safety valve requirements of
§ 3553(f) are met, “district courts still ‘must consult [the]
Guidelines and take them into account when sentencing,’
even though they now have the discretion to impose non-
Guidelines sentences.” United States v. Cantrell, 433 F.3d
1269, 1278 (9th Cir. 2006) (quoting Booker, 543 U.S. at 264).
III. APPLICATION TO CARDENAS-JUAREZ’S
SENTENCE
In imposing Cardenas-Juarez’s sentence, the district court
determined that the safety valve provision of 18 U.S.C.
§ 3553(f) was advisory and the minimum sentence provision
of 21 U.S.C. § 841 was mandatory; the mandatory minimum
“trumped” the advisory safety valve, and therefore the court
was precluded from applying the safety valve in any way.
[4] As previously discussed, however, the advisory nature
of the Guidelines does not make application of the § 3553(f)
safety valve advisory. Section 3553(f) must still be applied in
UNITED STATES v. CARDENAS-JUAREZ 19317
cases where its five eligibility requirements are met. See 18
U.S.C. § 3553(f) (listing the following requirements: (1) no
more than one criminal history point, or previous offense; (2)
the absence of violence or the use of a firearm in connection
with the offense; (3) no resulting death or serious bodily
injury; (4) the defendant’s role as something other than an
organizer, leader, manager, or supervisor, and the absence of
a continuing criminal enterprise; and (5) the defendant’s truth-
ful cooperation in telling the government everything he knows
about the offense). Neither the parties nor the district court
has ever contended that Cardenas-Juarez did not satisfy the
five safety valve eligibility requirements. Therefore, the plain
language of 18 U.S.C. § 3553(f) requires the district court to
impose a sentence without regard to the mandatory mini-
mums. As Cardenas-Juarez points out in his brief, “the ‘shall’
in the ‘safety valve’ language is directed not only at the
phrase ‘impose a sentence pursuant to the guidelines,’ but also
at the subsequent phrase ‘without regard to any statutory
minimum sentence.’ ” Our holding today is not inconsistent
with Booker. Section 3553(f) requires the district court to
impose a sentence that “take[s] account of the [advisory]
Guidelines together with other sentencing goals” outlined in
§ 3553(a). See Booker, 543 U.S. at 259. Furthermore, the sim-
ple inclusion of mandatory language in a portion of the Fed-
eral Sentencing Act does not render it invalid after Booker.
Booker itself left mandatory language in place in 18 U.S.C.
§ 3553(a): “The court shall impose a sentence sufficient, but
not greater than necessary, to comply with the purposes set
forth in paragraph (2) of this subsection.” 18 U.S.C. § 3553(a)
(West Supp. 2005) (emphasis added). The statutory safety
valve of 18 U.S.C. § 3553(f) thus survives the Supreme
Court’s holding in Booker, and district courts must continue,
in accordance with congressional intent, to apply its relief
from mandatory minimums in appropriate cases.
IV. CONCLUSION
[5] Because the district court incorrectly interpreted Booker
as precluding application of the statutory safety valve of 18
19318 UNITED STATES v. CARDENAS-JUAREZ
U.S.C. § 3553(f), we vacate Cardenas-Juarez’s sentence and
remand his case to the district court for resentencing in accor-
dance with the principles outlined above.
Sentence VACATED. REMANDED FOR RESEN-
TENCING.