Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1489
UNITED STATES OF AMERICA,
Appellee,
v.
SIMEON PENA-HERNANDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Rodney S. Dowell and Berman & Dowell on brief for appellant.
H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee.
August 26, 2005
Per Curiam. Defendant Simeon Peña-Hernandez was
indicted on one count of conspiring with others to possess with
intent to distribute more than five kilograms of cocaine in
violation of 21 U.S.C. §§ 841(a)(1), 846, which carries a
mandatory minimum sentence of 120 months, 21 U.S.C.
§ 841(b)(1)(A)(ii). After pleading guilty to that offense, he
was sentenced to 135 months' imprisonment.
In this appeal, defendant initially challenged his
sentence on the sole ground that the district court should have
considered his eligibility for the "safety valve," despite his
refusal to submit to a debriefing. After appellate briefing was
complete, defendant submitted a letter, under Fed. R. App. P.
28(j), further arguing that the case should be remanded for
resentencing in light of United States v. Booker, 125 S. Ct. 738
(2005). In reviewing the record, we noticed a plain error in the
application of the Guidelines, and we remand on that ground
without reaching defendant's Booker argument. Because
defendant's eligibility for a safety-valve departure will be
relevant on remand, we address defendant's safety-valve argument
and find it to be without merit.
A. Guidelines Calculation Error
Under Amendment 640 to the Guidelines, effective
November 1, 2002 (prior to defendant's sentencing), if a
defendant receives a minor-role adjustment under U.S.S.G.
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§ 3B1.2, the defendant's base offense level is capped at level
30. U.S.S.G. § 2D1.1(a)(3). As explained by the Sentencing
Commission, this cap was intended to "respond[] to concerns that
base offense levels derived from the Drug Quantity Table in §
2D1.1 overstate the culpability of certain drug offenders who
meet the criteria for a mitigating role adjustment under
§ 3B1.2." U.S.S.G. App. C, Amendment 640.
Although defendant here was given a minor-role
reduction, he was not given the benefit of the cap on his base
offense level. Rather, his base offense level was deemed to be
38, based on the Drug Quantity Table, U.S.S.G. ch. 5, pt. A. If
he had been given the benefit of the cap, along with the other
reductions already applied by the district court, his total
offense level would have been 25, with a sentencing range of 57
to 71 months, id., although a sentence below the mandatory
minimum would not have been possible without a safety-valve
departure. Thus, with the benefit of the cap but without the
benefit of the safety valve, defendant should have been sentenced
to the mandatory minimum of 120 months, rather than the 135
months he received.
Although defendant did not raise this argument either
below or on appeal, the government correctly concedes that the
error should be corrected under plain error review. As discussed
above, the district court erred in failing to cap defendant's
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base offense level at 30 as plainly required by section
2D1.1(a)(3) of the Guidelines. That error in Guidelines
application also satisfies the third and fourth prongs of the
plain error standard, United States v. Olano, 507 U.S. 725, 732
(1993), because it caused the court to substantially increase
defendant's sentence. United States v. Sedoma, 332 F.3d 20, 29
(1st Cir. 2003). For that reason, we vacate the sentence and
remand the case for resentencing.1
B. Safety-Valve Eligibility
The primary argument that defendant makes on appeal is
that the district court erred in failing to consider whether
defendant's initial statement, upon his arrest, sufficed to satisfy
the fifth requirement for a safety-valve departure--that he
"truthfully provide[] to the Government all information and
evidence [he] has concerning the offense," 18 U.S.C. § 3553(f)(5);
U.S.S.G. § 5C1.2(a)(5)2–-despite defendant's refusal to submit to
a safety-valve debriefing.
While it is true, at least theoretically, that a
defendant may comply with the fifth safety-valve requirement
without submitting to a debriefing, United States v. Montanez, 82
1
Because we remand on the above ground, we need not consider
the Booker-based argument for remand raised in defendant's Rule
28(j) letter. United States v. Caro-Muñiz, 406 F.3d 22, 24 n.1 (1st
Cir. 2005).
2
It is undisputed that defendant satisfied the four other
safety-valve requirements.
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F.3d 520, 523 (1st Cir. 1996), it remains defendant's burden "to
persuade the district court that he has 'truthfully provided' the
required information and evidence to the government." Id. Here,
the defendant made no attempt to satisfy that burden or to seek a
safety-valve departure at all. At the sentencing hearing, defense
counsel repeatedly stated that he was seeking only a minor-role
adjustment, not a safety-valve departure. Thus, the district
court had no reason to consider or rule on defendant's eligibility
for the safety valve, and it did not err in failing to do so. Cf.
id. at 522 (finding error where district court denied a safety-
valve departure because defendant had not been debriefed). A
fortiori, the court did not err in failing to hold an evidentiary
hearing on this issue where no such hearing was requested. Id. at
523.
The sentence is vacated and the case remanded for
resentencing. See Local R. 27(c). On remand, the district court
should take into account the now-advisory Guidelines range,
including the 30-level cap on defendant's base offense level, along
with the other factors enumerated in 18 U.S.C. § 3553(a), and may
also consider, with or without taking additional evidence, whether
defendant's initial statement on arrest satisfied the fifth
requirement for the safety valve.
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