[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15800 MAY 11, 2012
________________________ JOHN LEY
CLERK
D. C. Docket No. 8:10-cr-00303-SDM-MAP-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR ALFONSO PERTUZ-PERTUZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 11, 2012)
Before EDMONDSON, KRAVITCH and FARRIS,* Circuit Judges.
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:
Defendant pleaded guilty to committing drug offenses on the high seas. The
District Court sentenced Defendant to concurrent imprisonment terms of 120
months, pursuant to the statutory mandatory minimum sentence.
Defendant appeals, contending that the District Court erred in imposing the
sentence. Defendant says he should instead have been sentenced below the
mandatory minimum in accord with 18 U.S.C. § 3553(f), the “safety valve”
provision.
We affirm because the offenses for which Defendant was convicted do not
appear in the section 3553(f) list of specified offenses that trigger safety-valve
relief.
Background
Defendant pleaded guilty to conspiring to possess with intent to distribute
five or more kilograms of cocaine while aboard a vessel subject to the jurisdiction
of the United States, in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) & (b), and
penalized pursuant to 21 U.S.C. § 960(b)(1)(B)(ii) (Count 1). Defendant also
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pleaded guilty to aiding and abetting the possession with intent to distribute five or
more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the
United States, in violation of section 70503(a)(1), section 70506(a), 18 U.S.C. § 2,
and penalized pursuant to section 960(b)(1)(B)(ii) (Count 2).
Defendant received a two-level reduction pursuant to Sentencing Guidelines
§§ 5C1.2(a)(1)-(5) and 2D1.1(b)(16), and a three-level reduction because he
accepted responsibility and timely notified authorities of his intent to plead guilty.
Defendant’s guideline sentence range would normally have been 108 to 135
months of imprisonment. But because the penalty provision -- 21 U.S.C. §
960(b)(1)(B)(ii) -- provided for a 10-year mandatory minimum, Defendant’s
guideline sentence range became 120 to 135 months of imprisonment.
Over Defendant’s objections that he should have been sentenced below the
mandatory minimum according to the safety-valve statute, the District Court
sentenced Defendant to concurrent imprisonment terms of 120 months.
Discussion
We review the District Court’s interpretation of the statutes and Sentencing
Guidelines de novo. United States v. Anderson, 200 F.3d 1344, 1347 (11th Cir.
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2000).
The plain text of a statute controls. The Supreme Court has instructed that
“courts must presume that a legislature says in a statute what it means and means
in a statute what it says there.” Conn. Nat’l Bank v. Germain, 112 S. Ct. 1146,
1149 (1992). We have said that when Congress uses clear and unambiguous
language, “that is as far as we go to ascertain its intent[.]” United States v. Steele,
147 F.3d 1316, 1318 (11th Cir. 1998) (en banc).
We have also said that “by its terms, the ‘safety valve’ provision applies
only to convictions under five specified offenses: 21 U.S.C[.] § 841, § 844, § 846,
§ 960, and § 963.” Anderson, 200 F.3d at 1348. “The selection of these five
statutes reflects an intent to exclude others[.]” Id.; see also United States v.
Gamboa-Cardenas, 508 F.3d 491, 496-98 (9th Cir. 2007) (concluding that because
the predecessor statute to 46 U.S.C. § 70503 was not specifically listed in section
3553(f), “the plain statutory text indicates that the safety valve does not apply[.]”).
Here, Defendant was charged with and convicted for violations under Title
46 of the U.S. Code. No Title 46 offense appears in the safety-valve statute.
Therefore, pursuant to the plain text of the safety-valve statute, no safety-valve
sentencing relief applies.
But Defendant says that he is nevertheless entitled to sentencing relief
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because the Title 46 offenses for which he was convicted reference the penalty
provisions of 21 U.S.C. § 960: section 960 is specifically listed in the safety-valve
statute. We reject Defendant’s contention.
The safety valve statute, section 3553(f), refers to an “offense under”
section 960 -- not to an “offense penalized under” section 960 and not to a
“sentence under” section 960. Furthermore, section 960(a) lists unlawful acts that
actually do qualify as “offenses under” section 960. But still, no Title 46 offense
appears in the section 960(a) list.
Although 46 U.S.C. § 70506(a) references section 960 as the penalty
provision for violations of 46 U.S.C. § 70503, section 960 does not incorporate
section 70503 by reference as an “offense under” section 960. Therefore, the plain
text of the statutes shows that convictions under Title 46 of the U.S. Code -- like
Defendant’s -- entitle a defendant to no safety-valve sentencing relief. We affirm
Defendant’s sentence.
In addition, we note that the District Court’s Judgment (Doc. No. 116, 13
December 2010) contains some typographical or scrivener’s errors about the
statutes under which Defendant was convicted. We remand to the District Court
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for the limited purpose of correcting those errors in the Judgment.1
AFFIRMED and REMANDED with instructions.
1
To be consistent with the offenses and penalty provisions charged in the Indictment,
Count 1 of the Judgment should include these statutes: 46 U.S.C. § 70503(a)(1), 46 U.S.C. §
70506(a), 46 U.S.C. § 70506(b), and 21 U.S.C. § 960(b)(1)(B)(ii). Count 2 of the Judgment
should include these statutes: 46 U.S.C. § 70503(a)(1), 46 U.S.C. § 70506(a), 18 U.S.C. § 2, and
21 U.S.C. § 960(b)(1)(B)(ii).
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