United States v. Adame

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill U.S. District Court Judge

         INTRODUCTION

         The Defendant made timely objections to the Probation Officer's findings in the Presentence Investigation Report (Dkt. 33) that she had 10 criminal history points and was not eligible for the Safety Valve, under 18 U.S.C § 3553(f). [Dkt. 32] The Government filed a response supporting the probation officer's findings. [Dkt. 41] The Court heard arguments on October 7, 2019 and orally overruled all of the Defendant's objections at that time. This Order is filed to set forth, in more detail, the basis for the Court's oral ruling.

         BACKGROUND

         Ms. Adame was indicted on, and pled guilty to, one count of Distribution of Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Plea Agreement, Dkt. 17 at 2. The mandatory minimum sentence for this offense is five years. 21 U.S.C. § 841(b)(1)(B)(viii). The Initial Presentence Investigation Report (“PSR”) calculated Ms. Adame's criminal history score as 10, with a criminal history category of V, which she objects to. Initial PSR ¶¶ 51-53, Dkt. 30. The Initial PSR found that she had two 2-point offenses^[1] and seven 1-point offenses, four of which were included in the calculation of Ms. Adame's criminal history category. Id. at 6-13. The Initial PSR also found that she committed the instant offense while under a criminal justice sentence, adding two criminal history points. Id. ¶ 52.

         Adame also objects to the Probation Officer's determination of her “Safety Valve” eligibility. Def.'s Objections at 17, Dkt. 32. The First Step Act of 2018 expanded the eligibility of defendants to be sentenced below the mandatory minimum for certain types of controlled substances offenses. Pub. L. 115-391, Title IV, § 402(a), Dec. 21, 2018, 132 Stat. 5221. In order to be eligible for a sentence below the mandatory minimum the Court must find that Ms. Adame meets certain criminal history requirements. 18 U.S.C. § 3553(f). Section 3553(f), known as the “Safety Valve, ” is reproduced below:

(f) LIMITATION ON APPLICABILITY OF STATUTORY MINIMUMS IN CERTAIN CASES.-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), section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), or section 70503 or 70506 of title 46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that-

(1) the defendant does not have-

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, 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.

Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.

18 U.S.C. § 3553

         The Final PSR found that Adame, having more than four criminal history points (excluding 1-point offenses), did not meet the requirements of subsection (f)(1)(A). Addendum to PSR ¶¶ 15-18, Dkt. 33-1. This rendered her ineligible for the Safety Valve.

         Adame makes two statutory interpretation arguments in support of her safety valve eligibility. See Def.'s Objections at 19, Dkt. 32. First, she argues that section 3553(f)(1) should be read in the conjunctive to require that the Court find all three of: (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point violent offense, before she is ineligible for the Safety Valve. Her second argument is that “status points, ” assigned for being under a criminal justice sentence during the commission of the instant offense, are different than “offense-based” points, and should not count toward her criminal history points under section 3553(f)(1)(A).

         LEGAL STANDARD

         1. Determination of Defendant's Criminal History Category

         The Government bears the burden of proof for any fact that the sentencing court would find necessary to determine the base offense level or criminal history category. U.S. v. Felix, 561 F.3d 1036, 1043 (9th Cir. 2009). Normally, at sentencing, the government must prove any fact by a preponderance of the evidence. Id. at 1045-46.

         The defendant may challenge the existence of a prior conviction, however “[c]ollateral attacks at sentencing on prior state court convictions are prohibited.” U.S. v. Martinez-Martinez, 295 F.3d 1041, 1044 (9th Cir. 2002). The only narrow exception to this prohibition is for convictions obtained in violation of a Defendant's Sixth Amendment right to counsel. Id. (citing Custis v. U.S., 511 U.S. 485, 490-97 (1994)).

         2. Statutory Interpretation

         The Court's objective when interpreting a statute is to ascertain the intent of Congress and to give effect to legislative will. Moorhead v. United States, 774 F.2d 936, 940 (9th Cir.1985). The Court begins with the statute's plain language. Id. at 941. Absent a clearly expressed legislative ...