*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA,
v.
Criminal Action No. 13-cr-134 ALFREDO MOSQUERA-MURILLO,
JOAQUIN CHANG-RENDON, and Judge Beryl A. Howell ANTONIO MORENO-MEMBACHE,
Defendants. MEMORANDUM OPINION
On January 20, 2016, each of the defendants entered into a wired plea agreement under which they pleaded guilty to a one-count indictment of conspiring to distribute, and possess with intent to distribute, at least five kilograms of cocaine and 100 kilograms of marijuana on board a vessel subject to the jurisdiction of the United States, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503(a) and 70506(b). See Plea Agreements, ECF Nos. 185, 188, 191. Based on the quantity of drugs involved in the charged conspiracy, the defendants’ offense under the MLDEA carries a mandatory-minimum sentence of ten years of incarceration, see 46 U.S.C. § 70506(a); 21 U.S.C. § 960(b)(1)(B), and the parties have recommended, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), a sentence at this statutory minimum for each of the defendants, see Plea Agreements ¶ 6. In so doing, however, the defendants have retained their right to argue that they are eligible for relief from this mandatory-minimum under the “safety-valve” provision of the Mandatory Minimum Sentencing Reform Act of 1994, 18 U.S.C. § 3553(f). The government contends that the defendants are not eligible for such safety-valve relief because § 3553(f) does not apply to convictions under the MDLEA. Upon consideration of the parties’ thorough submissions on this issue, and for the *2 following reasons, the Court concludes that safety-valve relief is unavailable for defendants convicted under the substantive and conspiracy provisions of the MDLEA.
I. BACKGROUND
The relevant factual background underlying the defendants’ convictions is summarized in
detail in this Court’s prior opinion resolving the parties’ various pretrial motions in this matter.
See United States v. Mosquera-Murillo
, No. 13-CR-134,
The defendants are scheduled to be sentenced on May 13, 2016. Notice of Rescheduled Hearing, dated Feb. 23, 2016. The parties proposed, and the Court granted, a bifurcated briefing schedule under which the Court would determine, first, whether defendants convicted under the MDLEA are legally eligible for safety-valve relief, before the filing of sentencing memoranda in connection with the defendants’ scheduled sentencings. See Consent Mot. Bifurcate Sentencing *3 Hearing, ECF No. 195; Minute Order, dated Feb. 16, 2016. [1] Consistent with the parties’ proposed briefing schedule, this preliminary legal issue is now ripe for consideration.
II. DISCUSSION
While the question whether a defendant subject to a mandatory-minimum sentence due to
a conviction under the MDLEA is eligible for relief under the safety-valve provision of 18
U.S.C. § 3553(f) is an issue of first impression in this Circuit, the Court does not write on an
entirely blank slate. Indeed, arguing that safety-valve relief is not available to MDLEA
defendants, the government notes that both circuits to have considered the issue concluded that
such defendants are categorically precluded from seeking such relief. Gov’t Sub. on App. of
Safety Valve to MDLEA (“Gov’t Mem.”) at 3 (citing
United States v. Pertuz-Pertuz
, 679 F.3d
1327, 1329 (11th Cir. 2012) (per curiam);
United States v. Gamboa-Cardenas
,
Consistent with the reasoning adopted by these circuits, the government argues that both the plain language of the safety-valve provision and the legislative history accompanying its enactment confirm that safety-valve relief is unavailable to MDLEA defendants. See generally id. In response, the defendants contend that the “text, history, and purpose” of the safety-valve provision demonstrate their eligibility for a sentence below the statutory minimum and that any ambiguity in the language of the provision should be resolved in favor of granting such relief. Mem. Supp. Def. Chang-Rendon’s Legal Eligibility for Safety-Valve Relief (“Chang-Rendon *4 Mem.”) at 1, ECF No. 197. [2] Following a summary of the statutory framework underlying the present dispute, the parties’ arguments are considered below.
A. Relevant Statutory Framework
The safety-valve provision permits a district court to impose a sentence below the statutory mandatory-minimum where a defendant convicted of an offense under certain federal criminal offenses meets five enumerated criteria. [3] The statute sets out the specific offenses of conviction to which the safety-valve is available, providing, in pertinent part, that:
Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence . . . without regard to any statutory minimum sentence . . . .
18 U.S.C. § 3553(f).
Congress passed the safety-valve provision to provide sentencing relief for low-level
offenders who, because of their relatively limited role in the offenses for which they were
convicted, were often unable to provide the level of substantial assistance necessary to qualify
for a departure below an applicable mandatory-minimum sentence. As the D.C. Circuit has
*5
explained, “[p]rior to enactment of the safety valve provision, ‘defendants convicted of certain
drug crimes could receive a sentence below the statutory minimum only on the Government’s
motion to depart downward based on a defendant’s substantial assistance to the authorities.’
Congress enacted the safety valve provision in order to provide similar sentencing relief to lower
level offenders who were willing to cooperate with the government but did not possess
information of substantial assistance.”
United States v. Gales
,
In this case, each defendant stands convicted of conspiring to violate the MDLEA, which generally prohibits narcotics trafficking on the high seas. Specifically, the MDLEA prohibits knowingly or intentionally “manufactur[ing] or distribut[ing], or possess[ing] with intent to manufacture or distribute, a controlled substance” on board a “vessel of the United States or a vessel subject to the jurisdiction of the United States,” or “any vessel if the individual is a citizen of the United States or a resident alien of the United States.” 46 U.S.C. § 70503(a). While the MDLEA thus identifies the conduct prohibited under the statute, the MDLEA itself does not specify a penalty for violating its substantive terms. Instead, the MDLEA provides that individuals who violate, or attempt or conspire to violate, the MDLEA “shall be punished as provided in section 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 960).” 46 U.S.C. §§ 70506(a), (b).
In relevant part, 21 U.S.C. § 960 provides statutory penalties for a variety of offenses associated with the import and export of controlled substances. This general penalty provision follows a bipartite structure. First, subsection (a) provides:
Any person who—
(1) contrary to section 825, 952, 953, or 957 of this title, knowingly or intentionally imports or exports a controlled substance,
(2) contrary to section 955 of this title, knowingly or intentionally brings or possesses on board a vessel, aircraft, or vehicle a controlled substance, or (3) contrary to section 959 of this title, manufactures, possesses with intent to distribute, or distributes a controlled substance,
shall be punished as provided in subsection (b) of this section. 21 U.S.C. § 960(a). Next, subsection (b) sets out a series of escalating penalties based on the kind and quantity of drugs involved in the predicate offense. Id. § 960(b). As relevant here, for larger quantities of illicit drugs, this subsection provides for a mandatory-minimum sentence of five or ten years. Id. § 960(b)(1), (2). Under these subsections, due to the quantity of narcotics the government is prepared to prove the defendants could have reasonably foreseen to have been involved in the charged conspiracy, namely, 450 kilograms of cocaine and 100 kilograms of marijuana, see Joint Statements of Fact ¶ 7, ECF Nos. 186, 189; Joint Statement of Stipulated Facts ¶ 6, ECF No. 192, and absent relief under the safety-valve provision, each defendant agrees that he faces a mandatory-minimum statutory penalty of ten years imprisonment, see Plea Agreements ¶ 4. Should the defendants qualify, both legally and factually, for safety-valve relief, however, the Court may sentence the defendants to a term of imprisonment below this mandatory-minimum. Chang-Rendon Mem. at 2. [4]
B. Defendants Convicted under the MLDEA are not Eligible for Safety-Valve Relief under 18 U.S.C. § 3553(f)
Under the statutory framework described above, the present dispute boils down to a
relatively narrow question of statutory interpretation. By its terms, the safety-valve provision
allows for a below-minimum sentence only “in the case of an offense under” certain enumerated
federal drug crimes. Based upon the clear text in 18 U.S.C. § 3553(f), these enumerated
statutes 21 U.S.C. §§ 841, 844, 846, 960 and 963 have been interpreted to be an exhaustive
list.
See
,
e.g.
,
United States v. Phillips
,
This apparent exclusion notwithstanding, however, the defendants contend that individuals who, like them, are convicted under MDLEA are eligible for safety-valve sentencing relief under § 3553(f) on the theory that, because violations of the MDLEA are punished in accordance with the penalties set out in 21 U.S.C. § 960(b), an offense under the MDLEA qualifies as an “offense under . . . § 960.” 18 U.S.C. § 3553(f). Consequently, to determine whether the defendants are eligible for safety-valve relief, the Court must consider whether a conviction under the MDLEA qualifies as an “offense under” 21 U.S.C. § 960 within the meaning of § 3553(f). Chang-Rendon Mem. at 5; Gov’t Mem. at 2.
While the D.C. Circuit has not had occasion to consider the defendants’ proposed construction of this statutory phrase, the parties agree that those circuits that have considered the issue have uniformly held that safety-valve relief is precluded for defendants convicted under the MDLEA. Gov’t Mem. at 3; Chang-Rendon Mem. at 7. The defendants strongly critique the *8 reasoning of those opinions, however, to contend that the “text, statutory history, and purpose of” the relevant statutory provisions make clear that Congress intended MDLEA defendants to be eligible for safety-valve relief.
To resolve this dispute, the Court’s task of construing the relevant statutory provisions
must begin with the “statutory text itself.”
United States v. Cano-Flores
,
1. The Plain Language of 18 U.S.C. § 3553(f) Precludes Safety-Valve Relief for MDLEA Defendants
The defendants argue first that the plain language of both the safety-valve provision and the MDLEA points to safety-valve eligibility for MDLEA defendants. Specifically, the defendants contend that the phrase “an offense under . . . § 960” must be interpreted to encompass those offenses “subject to” or “governed by” § 960. Chang-Rendon Mem. at 5 . Likewise, construing the MDLEA’s penalty provision, the defendants suggest that punishments for violations of the MDLEA must be “ the same as ” those imposed under § 960, which necessarily includes potential safety-valve relief. at 6 (emphasis in original).
To assess the defendants’ proposed construction of these provisions, the Court must
consider first whether the “language at issue has a plain and unambiguous meaning with regard
*9
to the particular dispute in [this] case.”
United States v. Villanueva–Sotelo
,
Turning first to the defendants’ construction of the language of the safety-valve provision
itself, the defendants contend that, by affording safety-valve relief “in the case of an offense
under . . . § 960,” Congress intended to provide such relief to defendants convicted of
any
offense punished in accordance with the mandatory-minimum penalties set out in § 960(b). In
*10
support of their preferred interpretation, the defendants rely principally on the Supreme Court’s
construction of similar language appearing in a separate, unrelated statute in
Ardestani v. I.N.S.,
Ardestani
addressed the availability of attorneys’ fees under the Equal Access to Justice
Act (“EAJA”) for prevailing parties in administrative deportation proceedings brought by the
Immigration and Naturalization Service.
The Supreme Court disagreed. Instead, concluding that the meaning of “an adjudication under section 554” was unambiguous in the context of the EAJA, the Court noted that the word “‘under’ has many dictionary definitions and must draw its meaning from its context.” Id. at 135. In the context of the EAJA, the Ardestani Court observed that the “most natural reading of . . . ‘under section 554’ is that those proceedings must be ‘subject to’ or ‘governed by’ § 554.” Under this meaning, because the deportation proceedings at issue were not subject to or *11 governed by the APA, the Court held that these proceedings did not fall within the category of proceedings for which the EAJA waived sovereign immunity and authorized fee-shifting. at 138. Reading Ardestani to hold merely that the “phrase ‘ under ’ a statutory section means ‘governed by’ or ‘subject to’ that statutory section,” the defendant’s contend that the defendants’ convictions under the MDLEA are plainly governed by the mandatory-minimum penalty imposed under § 960. Chang-Rendon Mem. at 5.
As the foregoing summary suggests, however, the defendants’ reliance on the Supreme
Court’s interpretation of the word “under” in
Ardestani
is misplaced. First, such a reading
ignores the
Ardestani
Court’s admonition that the word “under” is amenable to many meanings
and must therefore be interpreted in the context in which it appears.
Ardestani
,
Likewise, the defendants’ contention that the safety-valve provision must be interpreted to encompass those offenses punished in accordance with § 960(b) is similarly unpersuasive. Arguing that the MDLEA qualifies as an offense “under . . . § 960,” the defendants note that, unlike the other statutes listed under the safety-valve provision, i.e. , 21 U.S.C. §§ 841, 844, 846, and 963, § 960 does not itself define an offense subject to a mandatory minimum. Chang- Rendon Mem. at 5. Since § 960 does not itself define a federal crime, but instead merely sets out the punishment for violating other federal crimes elsewhere defined, the defendants suggest that the only “coherent” reading of the phrase “an offense under . . . § 960” is “an offense for which subsection (b) of § 960 sets out the applicable punishment.” Id. Thus, because the penalties for violating the substantive and conspiracy provisions of the MDLEA are found in § 960(b), the defendants assert that the MDLEA clearly qualifies as an “offense under” § 960 to which the safety-valve indisputably applies.
At first blush, this argument appears to have some merit, but the Ninth Circuit’s
discussion of this precise issue in
United States v. Gamboa-Cardenas
,
The Eleventh Circuit has agreed with the reasoning of the Ninth Circuit. In
United States
v. Pertuz-Pertuz
,
These out-of-circuit decisions notwithstanding, the defendants seek to bolster their
proposed interpretation by arguing that the plain language of the MDLEA itself confirms that
qualifying defendants convicted of offenses arising under that statute should, like their
counterparts convicted of other offenses subject to mandatory minimums set out under § 960(b),
be eligible for safety-valve relief. According to the defendants, because the MDLEA’s penalty
*14
provision states that offenses under the statute must be “punished as provided in section . . .
960,” Congress “mandated that punishments for violations under [the MDLEA] must be
the
same as
punishments set out by § 960.” Chang-Rendon Mem. at 6 (emphasis in original). Since
defendants convicted under one of the statutes listed in § 960(a) are entitled to safety-valve
relief, the defendants argue, treating MDLEA defendants “
the same as
” those convicted under
one of these listed statutes requires “punishment doled out for drug trafficking on the high seas . .
. to include safety-valve eligibility as well.”
Id.
at 7. While recognizing that both the
Gamboa-
Cardenas
and
Pertuz-Pertuz
Courts specifically rejected this interpretation of the MDLEA, the
defendants note that at least one district judge, as well as a concurring judge on the
Gamboa-
Cardenas
panel adopted this construction of the statute. (citing
United States v. Olave-
Valencia
,
Review of these authorities does not disturb the Court’s view that the plain language of
the MDLEA and 18 U.S.C. § 3553(f) unambiguously foreclose safety-valve relief for defendants
convicted under the substantive or conspiracy provision of MDLEA. As an initial matter, though
the defendants ask this Court to follow the district court’s holding in
Olave-Valencia
, 371 F.
Supp. 2d 1224, the Ninth Circuit specifically rejected that holding in
Gamboa-Cardenas,
508
F.3d at 501–02. In so doing, the
Gamboa-Cardenas
Court explained that the lower court’s
reasoning rested on a misinterpretation of the distinction between the MDLEA and a similar
*15
statute prohibiting possession of narcotics in U.S. customs waters.
[6]
Further, while the
concurring opinion in
Gamboa-Cardenas
concluded that the “most plausible” reading of the
relevant provisions would permit MDLEA defendants to seek safety valve relief, this conclusion
was predicated on the finding, contrary to the majority holding and the view of this Court, that
the “statutory language is ambiguous as to whether [MDLEA] offenses are eligible for safety
valve relief.”
Gamboa-Cardenas
,
In sum, the plain language of the MDLEA and the safety-valve provision are not so ambiguous as to allow for an interpretation under which the MLDEA constitutes an “offense under . . . § 960.” Even assuming arguendo that the interpretation urged by the defendants is plausible based on the statutory text alone, however, the legislative history accompanying the enactment of the relevant generally supports the conclusion reached here, consistent with the holdings of both the Ninth and Eleventh Circuits, that safety-valve relief is precluded in this case. The most salient aspects of this legislative history are addressed below.
2.
Relevant Legislative History Further Evidences Congressional Intent to
Preclude Safety-Valve Relief for MDLEA Offenses
For nearly a century, Congress has sought to combat the importation of illicit drugs by
subjecting drug traffickers, whose activities on the high seas bring them within the jurisdiction of
the United States, to stringent criminal penalties. First, in 1922, Congress prohibited domestic
trafficking of illicit drugs by making it “unlawful to import or bring any narcotic drug into the
United States or any territory under its control.”
Gamboa-Cardenas
,
In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act (“Comprehensive Act”), Pub. L. No. 91-513, 84 Stat. 1292 (1970), with the goal of streamlining existing laws pertaining to the importation or exportation of illicit drugs. Id. To do so, Congress repealed and replaced nearly all criminal statutes targeting international drug trafficking. Id. As a part of this comprehensive legislation, Congress enacted 21 U.S.C. § 955, which covers the same offenses previously proscribed under the original 1922 statute. ; see 21 U.S.C. § 955 (generally prohibiting “bring[ing] or possess[ing] on board any vessel or aircraft, or on board any vehicle of a carrier, arriving in or departing from the United States or the customs territory of the United States, a controlled substance”). Also included in this omnibus legislation was § 960, which provided for a common set of penalties for a number of the substantive offenses newly reenacted through the Comprehensive Act. Among these offenses, which are enumerated in § 960(a), is § 955. Nonetheless, while the 1941 statute criminalizing conduct on the high seas was repealed in the Comprehensive Act, see Comprehensive Act, Title III, § 1101(a)(2), (9), 84 Stat. 1292, missing from the 1970 statute was any provision reinstating the previous prohibition on drug possession on the high seas, id. at 500–01.
Recognizing its oversight,
see Olave-Valencia
,
Reviewing this legislative history, the defendants argue that the enactment of the
MDLEA evinces “Congress’s intent to punish drug trafficking on the high seas in lockstep with
drug trafficking in United States waters.” Chang-Rendon Mem. at 11. Specifically, the
defendants contend that, following the inadvertent exclusion of a replacement for the 1941
statute, Congress enacted the original version of the MDLEA with the intention of “return[ing] to
its policy of sentencing parity” between drug crimes committed in United States territorial waters
*18
and similar crimes committed on the high seas.
Id.
at 12. According to the defendants, aware
that offenses under the 1922 and 1941 statutes were previously subject to the same penalties,
Congress sought to ensure that offenses under the new MDLEA would be penalized identically
to those under the new § 955 by providing that offenses under the MDLEA would be punished
“as provided in” § 960.
Id.
at 11–13. Thereafter, the defendants identify no Congressional intent
to treat these offenses differently upon either enacting the mandatory-minimum penalties in
§ 960(b) or later providing relief from these penalties under the safety-valve provision. at
13–15 (likening Congressional silence on this front to the “dog that did not bark” (internal
quotations omitted) (citing
Chisom v. Roemer
,
As previously discussed, however, by passing the MDLEA, Congress did not merely
reenact provisions of the 1941 statute repealed by the 1970 Comprehensive Act. Instead, the
MDLEA altered both the jurisdictional reach of the prior statute and the conduct prohibited
under federal law. These significant substantive changes to the terms of the prior statute largely
undermine any inference that Congress intended to subject defendants convicted under the
MDLEA to the same penalties as their counterparts convicted under § 955. On the contrary, as
the Ninth Circuit observed, “[i]t is perfectly logical to apply the safety valve to the lesser offense
of possession on board a vessel [under § 955], but not to the greater offense of possession on
board a vessel with intent to manufacture or distribute [under the MDLEA].”
Gamboa-
Cardenas
,
Indeed, the defendants’ present contention that Congress intended to provide safety-valve relief to qualifying MDLEA defendants is further undermined by Congress’s subsequent efforts to clarify the scope of safety-valve relief under § 960. Two years after adopting the safety-valve provision, Congress amended 18 U.S.C. § 3553(f) to correct a typographical error in the initial *19 statute. As originally drafted, § 3553(f) provided for safety-valve relief for defendants convicted of offenses under “section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 961 , 963).” Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, §80001, 108 Stat. 1796 (emphasis added). The 1996 amendment corrected this error, modifying the language to reflect its current form, which provides for safety-valve relief “in the case of an offense under . . . section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960 , 963).” Economic Espionage Act of 1996, Pub. L. 104-294, § 601(b)(5), 110 Stat. 3448, 3500 (emphasis added). This effort two years after the safety-valve provision was initially adopted and ten years after the MDLEA was amended to reflect its current form to correctly cite to the offenses for which safety-valve relief is available, without reference to the MDLEA, largely refutes the defendants’ present contention that the failure to include the MDLEA among the offenses in § 3553(f) was a mere oversight. Quite the opposite, even with the opportunity to consider the precise text at issue here, Congress has declined to include MDLEA offenses among the enumerated offenses for which safety-valve relief is available or otherwise made clear that these offense qualify as offenses “under . . . § 960.”
Nonetheless, the defendants press that construing the safety-valve provision to apply
equally to § 955 and the MDLEA would avoid the “absurd” result under which MDLEA
defendants are subject to more severe punishment than defendants who commit equivalent
offenses in domestic waters, on land, or in aircrafts subject to United States jurisdiction. at
9–10. Without question, however, Congress intended the safety-valve provision to apply to
some, but not all, drug offenses subject to mandatory-minimum penalties.
See Gamboa-
Cardenas
,
Finally, to the extent that Congress’s precise intent remains unclear, any lingering
ambiguity is not so “
grievous
” as to require the Court to adopt the defendants’ preferred
interpretation under the rule of lenity.
Burwell
,
Accordingly, the Court finds that safety-valve relief under § 3553(f) is unavailable to defendants, like the defendants here, who are convicted of conspiring to engage in international maritime drug trafficking in violation of the MDLEA.
3. Alleyne
Does Not Alter the Court’s Interpretation of 18 U.S.C. § 3553(f)
Finally, the defendants contend that prior out-of-circuit decisions addressing the
application of the safety-valve provision to MDLEA offenses cannot be squared with the
Supreme Court’s more recent ruling in
Alleyne
. Chang-Rendon Mem. at 7–9; Reply Mem. Supp.
Def. Moreno-Membache’s Legal Eligibility for Safety-Valve Relief (“Moreno-Membache
Mem.”), ECF No. 202. In
Alleyne
, the Supreme Court continued its long-running effort to
distinguish between those facts that constitute elements of a particular crime and, under the Sixth
Amendment, must be found by a jury beyond a reasonable doubt, and those facts that qualify as
mere “sentencing factors,” which may be considered by the Court without a formal jury finding.
Reversing its earlier holding in
Harris v. United States
,
The D.C. Circuit has yet to address precisely how
Alleyne
applies where a defendant’s
participation in a charged drug conspiracy subjects him to a potential mandatory minimum under
§ 960.
Compare United States v. Fields
,
Indeed, even assuming that the drug quantities identified in § 960(b) constitute elements of an MDLEA offense for purposes of the Sixth Amendment (and thereby must be determined by a jury), it does not follow that a violation of the MDLEA constitutes an “offense . . . under § 960” within the meaning of the safety-valve provision. The defendants’ present contention that Alleyne governs the Court’s interpretation of the safety-valve provision appears to rest on the assumption that, in passing the safety-valve provision in 1994, Congress anticipated the Supreme Court’s holding, nineteen years later, that the quantity of drugs involved in an MDLEA offense is an “element” of the offense that must be found by a jury. The defendants point to nothing in *23 the legislative history suggestive of such an awareness, and the Court declines to infer any such Congressional awareness, let alone intent, from this silence.
In short, Alleyne does nothing to call into question the Ninth and Eleventh Circuits’ interpretation of § 3553(f)’s reference to § 960 as “invok[ing] the statutes listed in 21 U.S.C. § 960(a),” namely, 21 U.S.C. §§ 952, 953, 955, 957 and 959. Accordingly, consistent with the reasoning of each of the circuit courts that have considered the issue, as well as the plain language of the statute itself, the Court concludes that an offense defined under the MDLEA does not, by virtue of the fact that it is punished in accordance with 21 U.S.C. § 960(b), qualify as an “offense under . . . § 960” within the meaning of 18 U.S.C. § 3553(f).
III. CONCLUSION
For the foregoing reasons, the Court holds that relief from an otherwise applicable mandatory minimum sentence under the safety-valve provision of 18 U.S.C. § 3553(f) is unavailable for defendants convicted under the substantive or conspiracy provisions of the MDLEA.
Date: March 21, 2016
__________________________ BERYL A. HOWELL Chief Judge
Notes
[1] In connection with their proposed briefing schedule, the parties requested an oral hearing on the issue of the applicability of the safety-valve provision to convictions under the MDLEA. Consent Mot. Bifurcate Sentencing Hearing at 3. Given the sufficiency of the parties’ written submissions, however, such a hearing would be unnecessary and duplicative, and the parties request for such a hearing is therefore denied. See LCvR 7(f) (stating allowance of oral hearing is “within the discretion of the court”).
[2] Defendants Moreno-Membache and Mosquera-Murillo each have adopted the opening memorandum submitted by their co-defendant. See Minute Orders, dated Feb. 29, 2016, March 3, 2016. Since the legal question of the applicability of the safety-valve provision to offenses under the MDLEA does not turn on the particular circumstances of an individual MLDEA offense, the discussion that follows addresses the defendants’ legal eligibility for safety-valve relief without regard to any potential factual distinctions between the defendants’ respective roles in the charged conspiracy.
[3] The five pre-requisites for application of the safety-valve to defendants otherwise eligible due to their offense of conviction are: “(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (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 so) 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 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). This language has been incorporated verbatim into the U.S. Sentencing Guidelines. See U.S.S.G. § 5C1.2.
[4] The parties have indicated that, should the Court rule that the safety-valve applies to MDLEA offenses, they “anticipate devoting substantial time to developing their presentations regarding whether the [d]efendants are eligible for relief under the Safety Valve as a factual matter.” Consent Mot. Bifurcate Sentencing Hearing at 2. In particular, “the [g]overnment would likely call numerous witnesses, including some who would travel from Colombia, to testify about the [d]efendants’ alleged conduct in the charged conspiracy and other conspiracies.” Given the substantial resources such an effort likely would demand, the Court granted the parties’ request to resolve the threshold question of the defendants’ legal eligibility for safety-valve relief before considering whether the defendants meet each of the factual criteria identified in 18 U.S.C. § 3553(f), see supra note 3. See Minute Order, dated Feb. 16, 2016.
[5] The Ninth Circuit considered the applicability of the safety-valve provision to the MLDEA’s predecessor
statute, which was subsequently reenacted without relevant changes and has since been codified as it currently
appears in Title 46.
United States v. Gamboa-Cardenas
,
[6] The overlapping and somewhat confused legislative history associated with the passage of these statutes is described in greater detail below, infra Part II.B.2.