U.S. v. Lopez

• Decision Date: 29 August 2001
• Docket Number: No. 00-20506,00-20506
• Citation: 264 F.3d 527
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FAUSTO DOZAL LOPEZ, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 527

264 F.3d 527 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FAUSTO DOZAL LOPEZ, Defendant-Appellant.

No. 00-20506

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 29, 2001

Appeal from the United States District Court for the Southern District of Texas

Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and DUPLANTIER,^* District Judge.

BENAVIDES, Circuit Judge:

Fausto Dozal Lopez (Lopez) pleaded guilty to various drug trafficking and money laundering offenses. He now appeals his sentence, arguing that the district court erred in concluding that the "safety valve" provisions in the sentencing guidelines prohibited a sentence below the statutory minimum. See U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6). Because the safety valve guideline expressly allows a sentence "without regard to any statutory minimum," we VACATE and REMAND Lopez's sentence for further proceedings.

I.BACKGROUND

A grand jury charged Lopez, along with several codefendants, in a six-count superseding indictment with the following offenses: conspiracy to possess with intent to distribute cocaine; possession with intent to distribute cocaine; two counts of money laundering; and conspiracy to commit money laundering. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 and 18 U.S.C. § 1956(a)(1)(A), (a)(1)(A)(I). He pleaded guilty as charged.

Prior to his rearraignment, Lopez filed an unopposed motion to waive the preparation of a presentence report. In his motion, Lopez provided that he had no criminal history and established a guideline offense level of 38, based on the possession of 267 kilograms of cocaine. See U.S.S.G. § 2D1.1(a)(3). Lopez and the government agreed that he should receive a two-level reduction pursuant to the "safety valve" provisions in §§ 2D1.1(b)(6) and 5C1.2 and a three-level reduction for acceptance of responsibility pursuant to § 3E1.1(b). However, the government took no position with respect to whether Lopez should receive a two-level reduction for a minor role in the offense under § 3B1.2(b). Nor did the government take any position with respect to whether Lopez qualified for any downward departures based on, among other things, his extraordinary family responsibilities and serious coercion or duress. See §§ 5K2.0 and 5K2.12. Based on the above calculations, the parties agreed that the total offense level was either 31 (with minor role reduction) or 33 (without minor role reduction) prior to any possible downward departure. With a criminal history category of I, an offense level of 31 corresponds to a guideline range of 108 to 135 months, and an offense level of 33 corresponds to a guideline range of 135 to 168 months. The statutory minimum sentence is 120 months. See 21 U.S.C. § 841 (b)(1)(A)(ii).

At the conclusion of his motion to waive a presentence report, Lopez asserted that he "qualifie[d] pursuant to [§]5C1.2 for a sentence below the mandatory minimum." The government did not object to this assertion.

At the rearraignment hearing, Lopez requested to be sentenced the same day. The district court concluded that it had sufficient information to sentence Lopez and therefore waived preparation of a presentence report. The district court agreed that Lopez did not have any criminal history points and that his base offense level should be 38. The court further determined that he met the criteria for the two-level safety valve reduction and was entitled to a three-level reduction for acceptance of responsibility. The court was not persuaded that Lopez was entitled to the reduction for a minor role in the offense. Thus, the court found that Lopez's total offense level was 33, which translated into a guideline range of 135 to 168 months. Further, the court found that Lopez was entitled to a downward departure to the statutory minimum sentence of 120 months based on, among other things, his extraordinary family responsibilities and serious coercion or duress. See, e.g., §§ 5K2.0 and 5K2.12. Finally, the court stated that it believed that the safety valve prevented it from departing below the statutory minimum sentence. Nonetheless, the court expressly stated that, but for that prohibition, it would have granted a downward departure to 108 months. Lopez now appeals his sentence.

II.ANALYSIS

The sole issue raised on appeal is whether the district court erroneously believed that the safety valve provisions prevented it from departing below the statutory minimum sentence. This Court reviews a district court's legal interpretation of the sentencing guidelines de novo. United States v. Rodriguez, 60 F.3d 193, 195 (5th Cir. 1995).¹

Section 5C1.2 is known as the "safety valve" provision in the sentencing guidelines and is entitled "Limitations on Applicability of Statutory Minimum Sentences in Certain Cases," and it provides as follows:

In the case of an offense under 21 U.S.C. § 841 . . . [and] § 846 . . ., the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below:

(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 21 U.S.C. § 848; 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.

(emphasis added).

Additionally, in § 2D1.1(b)(6), the guidelines provide that if a defendant meets these five requirements and the offense level is 26 or greater, the offense level is decreased by 2 levels.

It is undisputed that Lopez met the five requirements for the safety valve reduction and that the court properly gave him the two-level reduction. The point of contention is whether the district court erred in believing that it did not have the authority to sentence Lopez to 108 months, which is below the statutory minimum sentence and at the bottom of his applicable guideline range after the adjustments and downward departure.

As indicated, during the sentencing hearing the district court stated:

I am aware of the vagaries of the safety valve which prevent me from departing below the statutory minimum of ten years. We have in different contexts discussed the fact that this guideline range is driven by the fact that there was more than 150 kilograms of cocaine. That's true. There was substantially more than 150 kilograms and I do not feel that the vagaries of that safety valve problem are ones that you can correct through a minor role adjustment. It is just too artificial.

Having said that, I will also say that I am persuaded that a downward departure, to the extent permitted by law, is appropriate.

***

To the extent that the safety valve does not permit me to go below the statutory minimum, so be it, but I think that the safety valve has not operated in this context to its full extent because of the vagaries of this charge and scoring under the guidelines.

***

Having said all of that, I am going to downward depart to the statutory minimum of ten years which puts us - I will be departing downward from a level 33 to a level 31 for the reasons stated. In the unlikely event that there is an appeal, I will say that I would have sentenced the defendant at the 108[-month] level based on these downward departure factors if I were permitted to do so by law. And should the law change in the safety valve, I would be willing to reconsider the sentence in that context.

As the record makes perfectly clear, the district court believed the safety valve prohibited it from sentencing Lopez to 108 months. The district court was mistaken in such belief.

The government concedes that the safety valve authorizes the district court to impose a sentence below the statutory minimum "in certain cases." The government argues that a sentencing court may...