United States Court of Appeals
For the First Circuit
No. 06-2294
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT HUNT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Circuit Judge,
Lipez, Circuit Judge,
and Tashima,* Senior Circuit Judge.
Matthew Kamholtz for appellant.
James F. Lang, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellee.
September 17, 2007
*
Of the Ninth Circuit, sitting by designation.
TASHIMA, Senior Circuit Judge. Robert Hunt appeals the
ten-year mandatory minimum sentence imposed following his plea of
guilty to possession with intent to distribute a controlled
substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii).
Hunt contends that his sentence should be vacated because the
district court erroneously believed it lacked discretion to qualify
Hunt for the safety valve provision, 18 U.S.C. § 3553(f), by
lowering Hunt’s criminal history category to I. Although the
safety valve provision is not new, Hunt’s proposed interpretation
of its requirements is a novel one in this circuit. We now hold
that the criminal history calculation for purposes of safety valve
eligibility is non-discretionary.
I. FACTS
Hunt sold cocaine base three times in July and August
2005 to a cooperating witness in Brockton, Massachusetts. As a
result of these sales, Hunt was indicted in August 2005 on three
counts of possession with intent to distribute more than five grams
of cocaine base. He pleaded guilty in May 2006. Hunt’s
presentence report revealed one previous conviction, for cocaine
distribution. Although Hunt committed the prior crime more than
ten years before the instant offense, he was not sentenced until
November 1995, nine years and eight months prior to the
commencement of the instant offense. As a result of the prior
offense, Hunt’s criminal history points were set at 2, his criminal
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history category was II, and Hunt’s sentence was set at a mandatory
minimum of ten years. See 21 U.S.C. § 841(b)(1)(B)(iii); U.S.S.G.
§§ 4A1.1(b), 5C1.2(a). If Hunt had been sentenced four months
earlier in 1995, that offense would not have counted toward his
criminal history point calculation. See U.S.S.G. § 4A1.2(e)(2).
But for Hunt’s criminal history category, he would have qualified
for the safety valve relief from the mandatory minimum sentence
under 18 U.S.C. § 3553(f) and an advisory guideline sentence range
of 78-87 months.
Hunt sought a lower sentence, arguing that the district
court had discretion to qualify Hunt for the safety valve exception
to the ten-year mandatory minimum by lowering his criminal history
category to I. The district court disagreed and sentenced Hunt to
ten years’ imprisonment. In imposing the sentence, however, the
district court voiced concern that a lower sentence was appropriate
in Hunt’s case and that imposition of the mandatory minimum under
these circumstances was “a harsh and unfair result.”
II. ANALYSIS
We review de novo a district court’s legal conclusions,
such as its interpretation of a statute or the Sentencing
Guidelines. See United States v. Simo-Lopez, 471 F.3d 249, 253
(1st Cir. 2006); United States v. McKenney, 450 F.3d 39, 42 (1st
Cir.), cert. denied, 127 S. Ct. 537 (2006).
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Under 21 U.S.C. § 841, offenders who have a prior felony
drug conviction are subject to a ten-year mandatory minimum term of
imprisonment for the crime of possession with intent to distribute
five or more grams of a substance containing cocaine base. Id. §
841(b)(1)(B). However, the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796
(“VCCA”), created a “safety valve,” designed to allow some of the
“least culpable offenders” to escape the harsh application of the
mandatory minimum. See H.R. Rep. No. 103-460, at 4 (1994); VCCA §
80001, 108 Stat. at 1985 (amending 18 U.S.C. § 3553). To qualify
for the safety valve, the district court must find, inter alia,
that “the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines.” 18 U.S.C.
§ 3553(f)(1).1
1
In addition to the finding required by subsection (f)(1),
the district court must also find that:
(2) the defendant did not use violence or credible threats of
violence or possess a firearm or other dangerous weapon (or
induce another participant to do do) in connection with the
offense;
(3) the offense did not result in death or serious bodily injury
to any person;
(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing
criminal enterprise, as defined in section 408 of the
Controlled Substances act; and
(5) not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all
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Criminal history points are determined according to a
calculation set forth in U.S.S.G. § 4A1.1, and the number of
criminal history points determines the defendant’s criminal history
category. See U.S.S.G. ch. 5, pt. A (sentencing table). Two or 3
criminal history points equates to a criminal history category of
II, and 0 points or 1 point equates to a category of I. Id.
As directed by Congress, the Sentencing Commission
promulgated U.S.S.G. § 5C1.2, effectuating the safety valve
provision. Section 5C1.2 repeats the requirements set forth in the
statute, but circumscribes the breadth of the safety valve by
requiring that the single allowable criminal history point be
determined “before application of subsection (b) of 4A1.3.”
U.S.S.G. § 5C1.2(a)(1). U.S.S.G. § 4A1.3(b) allows a district
court to depart downward to a lower criminal history category if
the defendant’s assigned “criminal history category substantially
over-represents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes.”
U.S.S.G. § 4A1.3(b)(1). Section 5C1.2(a), then, prevents downward
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.
18 U.S.C. § 3553(f)(2)-(5). The parties do not dispute that Hunt’s
actions and the nature of the offense satisfy subsections (2)-(5).
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departures from being applied to qualify offenders for the safety
valve.
Notably, § 4A1.3(b)(3) also discusses the safety valve
provision. The subsection, entitled “Limitation on Applicability
of § 5C1.2 in Event of Downward Departure to Category I,”
delineates the importance of a defendant’s initial criminal history
point-calculation in qualifying him for the safety valve provision.
It states that a defendant whose criminal history category is I
after receiving a downward departure “does not meet the criterion”
of § 5C1.2(a)(1) if the defendant had more than one criminal
history point under § 4A1.1 prior to receiving the departure. Id.
§ 4A1.3(b)(3). Thus, §§ 5C1.2 and 4A1.3 preclude application of
the safety valve provision if a defendant initially had more than
one criminal history point.
Hunt has two criminal history points. See U.S.S.G. §§
4A1.1(b), 4A1.2(e)(2). The plain language of the Sentencing
Guidelines precludes him from receiving the benefit of the safety
valve regardless of whether the district court saw fit to designate
his criminal history category as I by departing downward.
Eight other courts of appeals have reached this same
conclusion since the safety valve was promulgated in 1994. See
United States v. Boddie, 318 F.3d 491, 494-97 (3d Cir. 2003);
United States v. Penn, 282 F.3d 879, 881-82 (6th Cir. 2002); United
States v. Webb, 218 F.3d 877, 881-82 (8th Cir. 2000); United States
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v. Owensby, 188 F.3d 1244, 1246 (10th Cir. 1999); United States v.
Robinson, 158 F.3d 1291, 1293-94 (D.C. Cir. 1998); United States v.
Orozco, 121 F.3d 628, 630 (11th Cir. 1997); United States v. Resto,
74 F.3d 22, 28 (2d Cir. 1996); United States v. Valencia-Andrade,
72 F.3d 770, 773-74 (9th Cir. 1995).2 The meaning of the
Guidelines is clear, and we agree with the holdings of our sister
circuits. We thus hold that a district court cannot qualify a
defendant for the safety valve by reducing his criminal history
category to I under § 4A1.3.
Hunt attempts to escape this conclusion by arguing that
the Sentencing Commission intended § 4A1.3(b) to differentiate
those downward departures that were truly prohibited from those
that were merely disfavored. As Hunt notes, § 4A1.3 contains two
subsections which restrict downward departures. Subsection (b)(2)
sets forth “prohibit[ed]” downward departures, and subsection
(b)(3) sets forth “limitations” on downward departures. Hunt notes
additionally that the Commission has classified certain sentencing
factors as “encouraged” bases for upward or downward departures,
where the Commission could not fully account for their impact in
2
Indeed, these opinions interpreted a version of the
Guidelines in which § 5C1.2(a)(1) did not explicitly limit the
criminal history point calculation to the number of points prior to
a downward departure; the restriction was expressed only in an
application note. That provision was added by amendment in 2003.
See U.S.S.G. app. C, amend. 651 (2003) (comparing the old and new
versions of the section and also amending § 4A1.3 to explicitly
disallow safety valve eligibility for defendants with more than one
criminal history point under § 4A1.1).
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formulating Guideline sentences. U.S.S.G. § 5K2.0; e.g., U.S.S.G.
§ 5K2.3 (defendant has caused extreme psychological injury to his
victim); id. § 5K2.10 (victim has provoked defendant); accord Koon
v. United States, 518 U.S. 81, 94-95 (1996). Citing United States
v. Wilkerson, 183 F. Supp. 2d 373, 380 (D. Mass. 2002), Hunt argues
that the overstatement of one’s criminal history falls in the
category of encouraged bases for departure. Because departures
grounded in criminal history are encouraged, he asks the court to
read § 4A1.3's “limitation” on a district court’s ability to
qualify a defendant for the safety valve provision by departing
downward as a weaker restriction than an actual “prohibition”
against doing so. He argues that “limitations” are suggestions
rather than bars.
But Hunt offers no support for his assertion that the
Sentencing Commission intended a meaningful distinction between
subsections § 4A1.3(b)(2) and (b)(3),3 and the language of § 4A1.3
does not comport with his reading of subsection (b)(3)(B) as mere
suggestion. Instead, the language is peremptory, stating that “[a]
defendant whose criminal history category is Category I after
3
We find no principled basis to distinguish between the
restrictions described as “prohibitions” and those described as
“limitations,” and Hunt suggests none. “Prohibitions” include
downward departures for armed career criminals, for repeat and
dangerous sex offenders against minors, and below the lower
guideline range for criminal history category I. U.S.S.G. §
4A1.3(b)(2). “Limitations” include the safety valve restriction at
issue in this case, as well as departures of more than one criminal
history category for career offenders. Id. § 4A1.3(b)(3).
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receipt of a downward departure under this subsection does not meet
the criterion of subsection (a)(1) of § 5C1.2 . . . if, before
receipt of the downward departure, the defendant had more than one
criminal history point under § 4A1.1.” U.S.S.G. § 4A1.3(b)(3)(B)
(emphasis added). Moreover, the same restrictive language of §
4A1.3(b)(3)(B) is also found in the safety valve provision of the
Guidelines, § 5C1.2(a), without any hint that the criminal history
point requirement is a mere suggestion.
Nor does United States v. Booker, 543 U.S. 220 (2005),
assist Hunt. He contends that, under Booker, the Guidelines are
merely advisory, such that district courts have discretion to
ignore the unfavorable statements in § 4A1.3 and § 5C1.2 requiring
the maximum of one criminal history point to be before application
of a downward departure.
That is, however, a very loose reading of Booker’s
remedial holding, which only precludes a district court from
treating a guideline range as binding. See id. at 258-59 (excising
18 U.S.C. § 3553(b)(1), the provision requiring a sentencing court
to impose a sentence within the applicable Guidelines range).4
Booker did not alter the requirement that the Guidelines results be
4
A district court also commits Booker error by violating
Booker’s Sixth Amendment holding, which requires that “[a]ny fact
(other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” Id. at
244. Hunt claims no Booker error on this basis.
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determined according to the Guidelines. See United States v.
Antonakopoulos, 399 F.3d 68, 81 (1st Cir. 2005) (recognizing that
a substantive error in the application of the Guidelines will
normally lead to a Booker remand); accord United States v. Brehm,
442 F.3d 1291, 1300 (11th Cir. 2006) (per curiam); United States v.
Barrero, 425 F.3d 154, 156-57 (2d Cir. 2005). Moreover, as other
circuits have held, Booker does not excise and render advisory the
requirement of § 3553(f) that a defendant have 0 or 1 criminal
history points in order to qualify for safety valve relief. Thus,
this congressionally-mandated condition remains in force. Accord
United States v. Hernandez-Castro, 473 F.3d 1004, 1006-07 (9th Cir.
2007); United States v. McKoy, 452 F.3d 234, 240 (3d Cir. 2006);
Brehm, 442 F.3d at 1300; Barrero, 425 F.3d at 157-58. Hunt’s
contention that the district court’s adhering to the Sentencing
Guidelines’ calculation instructions in applying the safety valve
constitutes Booker error is without merit. See United States v.
Narvaez-Rosario, 440 F.3d 50, 52 (1st Cir. 2006) (holding that,
where a defendant has admitted to the facts underlying imposition
of the statutory minimum sentence, “there can be no Booker error”).
III. CONCLUSION
We, like the district court, recognize that following the
Sentencing Guidelines in this case effected a harsh result. A span
of only four months prevented Hunt’s qualification for the safety
valve provision. We have no authority, however, to bypass the
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plain command of the safety valve provision, 18 U.S.C. §
3553(f)(1), that an offender can have, at most, a single criminal
history point in order to qualify and that the point must be
“determined under the sentencing guidelines.” The “limitations” in
U.S.S.G. § 4A1.3 are not mere suggestions, and Booker did not
render the calculation of criminal history points for this purpose
discretionary. Consequently, Hunt had two criminal history points
under the Sentencing Guidelines, which precluded the district court
from granting Hunt the benefit of the safety valve. Hunt’s
sentence is therefore
AFFIRMED.
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