Wednesday, September 28, 2005

Blakely / Booker Challenge to Safety Valve Rejected on Narrow Ground

United States v. Hector B. Ramirez, Docket No. 03-1280 (2d Cir. September 27, 2005) (Sack, Katzman, Parker): This case rejects a Sixth Amendment, Blakely/Booker-based challenge to the statutory safety valve provision, 18 U.S.C. § 3553(f) (permitting a court to impose a sentence without regard to otherwise applicable statutory minimum if defendant meets a number of conditions), on a narrow ground involving the Almendarez-Torres exception to the Apprendi rule. It thus leaves open the possibility of a future Sixth Amendment challenge to § 3553(f) based on grounds apart from "the fact of a prior conviction," for instance the denial of safety-valve eligibility based on a determination that the defendant qualified as an organizer or leader under the Guidelines. See id. § 3553(f)(4). The decision also does not discuss the implication of Booker on the application of Sections 2D1.1(b)(7) and 5C1.2 of the Guidelines, which authorize a district court to decrease the offense level by 2 if the same safety valve criteria listed in § 3553(f) are satisfied.

The essential facts are simple. Ramirez pled guilty to conspiring to distribute 5 kilograms or more of cocaine, thus triggering a 10-year minimum sentence under 21 U.S.C. § 841(b)(1)(A). He presumably allocuted to the (b)(1)(A) quantity, since the 10-year minimum would not otherwise not be in play in light of the Court's recent decision in Gonzalez). The PSR determined that Ramirez had 2 criminal history points under Chapter 4 of the Guidelines, and he did not disagree. Under § 3553(f), a defendant is eligible for the safety valve only if s/he, among other things, "does not have more than 1 criminal history point, as determined under the sentencing guidelines." Id. § 3553(f)(1). Ramirez therefore was not eligible for safety valve relief and was sentenced to 10 years.

On appeal, Ramirez argued that in light of Booker, the district court should have treated either the determination (via Chapter 4 of the Guidelines) that he had 2 criminal history point, or § 3553(f) itself, or both, as advisory. The Circuit rejected these arguments.

First, the Court (citing Crosby) concluded that even after Booker, a sentencing court is required to compute the proper Guidelines sentence, including the number of criminal history points accrued by the defendant. In making these "internal" Guidelines determinations, a court must abide by the dictates of the Guidelines, even if, at the end of the process, the Guidelines range is only advisory. Thus, the sentencing court could not simply ignore as "advisory" the Guidelines' determination that Ramirez had 2 criminal history points. Op. at 5-6.

Second, the Court narrowly concluded that nothing in Booker requires treating § 3553(f) itself as advisory when, as here, the element rendering the defendant ineligible for safety-valve relief concerns his prior convictions. Since the denial of safety-valve relief in this case rested solely on "the fact of [Ramirez's] prior convictions," and since Almendarez-Torres is still good law, no Sixth Amendment concern is implicated. As the Court explained,

"No portion of the defendant's punishment depends on facts, other than facts of prior convictions, that have not been authorized by a plea of guilty or a jury verdict. There is therefore no constitutional bar to a legislative instruction to a judge to sentence the defendant to such a mandatory minimum where, as here, the defendant is ineligible for safety valve relief based on the court's finding that he had more than one criminal history point."

Op. at 8. Emphasizing its narrow basis, the opinion concludes by specifically cautioning that "[w]e leave for another day whether the denial of safety valve relief based on judge-found facts as to any of the other section 3553(f) grounds might ever violate the Sixth Amendment." Op. at 9.

A sliver of hope thus remains, since the Court could have ruled as a general matter that the safety valve implicates no Sixth Amendment concerns simply because no judge-found fact increases the defendant's sentence under this provision. See, e.g., United States v. Payton, 405 F.3d 1168 (10th Cir. 2005) ("Nothing in Booker's holding or reasoning suggests that judicial fact-finding to determine whether a lower sentence than the mandatory minimum is warranted implicates a defendant's Sixth Amendment rights.") (emphasis in original). Given the narrowness of Ramirez, however, a Sixth Amendment challenge to a court's determination of safety-valve ineligibility based on a finding that, for instance, the defendant qualified as a leader or organizer under the Guidelines remains open. (For a sophisticated argument attacking the safety valve on Blakely grounds, see the article by Jon Sands and Jane McClellan in the Federal Sentencing Reporter).

The decision also does not address the application of the Guidelines safety valve provision, found in § 5C1.2. Under § 2D1.1(b)(7), a defendant who satisfies the § 5C1.2 criteria -- identical to the § 3553(f) statutory criteria -- is entitled to a 2-level reduction to his or her offense level, regardless of whether a statutory minimum sentence is at issue. For instance, if Ramirez had not pled to to the (b)(1)(A) offense and was not subject to any statutory minimums, he could still argue, even after this decision, that the sentencing court (1) should have treated the Guidelines' determination that he had 2 criminal history points as merely advisory in light of Booker, and thus (2) could have awarded him the 2-level reduction under §§ 2D1.1(b)(7) & 5C1.2 even though he technically had more than 1 criminal history point.


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