United States v. Lizarraga-Carrizales
757 F.3d 995
9th Cir.2014Background
- In Oct. 2008 Lizarraga was arrested at the U.S. border with 7.25 kg of heroin and pleaded guilty to importation triggering the 10‑year statutory mandatory minimum under 21 U.S.C. § 960(b).
- At sentencing the district court denied safety‑valve relief under 18 U.S.C. § 3553(f), finding Lizarraga had five criminal history points.
- The court allocated points as follows: 2 points for committing the federal offense while on probation (2008 driving on suspended license), 1 point for the 2008 probationary sentence (>1 year), and 2 points for two 2000 state convictions (treated separately due to an intervening arrest).
- Lizarraga appealed, conceding one point for the 2000 convictions but contesting: (1) that judicial fact‑finding to deny safety‑valve relief violates Alleyne/Apprendi; (2) assignment of 2 points for probation given a later nunc pro tunc termination; and (3) use of police computer printouts to find an intervening arrest.
- The Ninth Circuit reviewed legal questions de novo, factual findings for clear error, and the safety‑valve denial deferentially.
Issues
| Issue | Plaintiff's Argument (Lizarraga) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether judicial fact‑finding to deny safety‑valve relief implicates Alleyne/Apprendi | Safety‑valve facts must be proved to a jury beyond a reasonable doubt under Alleyne/Apprendi | Safety‑valve denial does not increase statutory minimum; judge may find facts by preponderance | Denial of safety‑valve relief does not implicate Alleyne/Apprendi; judge may decide safety‑valve facts by preponderance |
| Whether two points may be added for committing federal offense while on probation when probation was later terminated nunc pro tunc | Nunc pro tunc termination means he was not on probation at time of offense; no 2 points | Status at the time of the offense governs; later state court orders cannot rewrite history for federal sentencing | Court properly assigned 2 points; defendant was on probation at the time of the offense despite later nunc pro tunc order |
| Whether two 2000 convictions should be counted separately or as one because they were sentenced same day (intervening arrest) | Contends no adequate proof of intervening arrest; reliance on police printouts violates Shepard | Police records, charging documents, PSR show intervening arrest; district court may rely on such records for sentencing facts | Court properly found an intervening arrest based on police printouts and other records; two points proper |
| Whether one point for a probation sentence >1 year was properly assigned given early termination | Probation actually served <1 year after nunc pro tunc order; no point should be assigned | Even if tension exists, other properly assigned points render any error harmless | Any potential error in that point was harmless because other points already made him ineligible for safety‑valve relief |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts that increase statutory minimum must be found by jury)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory penalty must be proved to a jury beyond a reasonable doubt)
- United States v. Labrada‑Bustamante, 428 F.3d 1252 (9th Cir. 2005) (safety‑valve determination constitutional despite judicial fact‑finding)
- United States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) (denial of safety‑valve relief does not trigger Alleyne)
- United States v. Yepez, 704 F.3d 1087 (9th Cir. 2012) (defendant’s probationary status at time of offense controls; nunc pro tunc termination does not alter historical status)
- Shepard v. United States, 544 U.S. 13 (2005) (limits on documents usable to determine the nature of prior convictions)