U.S. v. Quirante
| Decision Date | 21 May 2007 |
| Docket Number | No. 06-13527.,06-13527. |
| Citation | 486 F.3d 1273 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Francis QUIRANTE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Danial E. Bennett, Amy Lee Copeland, U.S. Atty., Savannah, GA, for U.S.
Appeal from the United States District Court for the Southern District of Georgia.
Before CARNES, WILSON and HILL, Circuit Judges.
Francis Quirante's career in the merchant marine, culminating in his service as a second officer aboard the M/V OCEAN GLORY, ended in a way that was anything but glorious. Facing financial difficulties, Quirante became part of an effort to smuggle two kilograms of heroin into this country. He was caught and charged, and he pleaded guilty to possessing with intent to distribute one or more kilograms of heroin in violation of 21 U.S.C. § 841(a)(1).
In return for his guilty plea the husband and father of three young girls hoped to receive a sentence of only 70 months. That would have been okay with the government. The district court, however, citing the mandatory minimum sentence set out in § 841(b)(1)(A), sentenced Quirante to 120 months imprisonment. Quirante's appeal brings us issues involving the so-called safety-valve mechanism, which operates in some circumstances to provide a guidelines sentence even though a higher mandatory minimum sentence would otherwise be required by statute. See 18 U.S.C. § 3553(f); United States Sentencing Guidelines § 5C1.2 (Nov.2006). The principal issue is whether application of the safety valve is mandatory or discretionary with the sentencing judge.
Under the sentencing guidelines this crime yields a base offense level of 32. See U.S.S.G. § 2D1.1(c)(4). The pre-sentence investigation report recommended, and neither the government nor Quirante objected to, the offense level being reduced by two levels because Quirante satisfied the five safety-valve criteria, see § 5C1.2, and by three levels because he accepted responsibility for his crime, see § 3E1.1(a), (b). Those adjustments brought the offense level down to 27. With no record of prior criminal activity, Quirante had a criminal history score of I, and the PSR calculated his advisory guideline range sentence as between 70 and 87 months imprisonment.
The PSR noted that pursuant to 21 U.S.C. § 841(b)(1)(A) Quirante was subject to a ten-year mandatory minimum prison sentence. Nonetheless, it recommended that the court should impose a sentence in accordance with the advisory guideline range, because Quirante met the safety-valve criteria in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. There were no objections to the PSR by either side.
At the sentence hearing, the district court adopted as its own the factual statements and guideline calculations in the PSR. The probation officer explained to the court at the hearing that Quirante The court responded by asking counsel for Quirante why it "shouldn't do the minimum"—why it shouldn't sentence him to the mandatory minimum sentence of ten years in prison. Counsel answered that Quirante met the five criteria for application of the safety valve, to which the court replied:
Quirante's counsel then argued that because of the factors set out in 18 U.S.C. § 3553(a), Quirante should be sentenced to the low end of the advisory guideline range of 70 to 87 months. The probation officer agreed, and so did the attorney representing the government. In fact, the Assistant United States Attorney actually made a plea for a low-end sentence, characterizing Quirante's crimes as "aberrational behavior" stemming from a regrettable "life-changing bad decision" for which not only Quirante but also his family would suffer terribly. He explained that the government had promised in the plea bargain to suggest a sentence at the low end of the guidelines range, and he was making good on that promise.
Everyone favored a low-end sentence for Quirante. Everyone except the district court. After hearing from counsel and the probation officer, the court said this:
The defendant has given his statement. I have considered those factors of the so-called valve. But notwithstanding the recommendations of the government, the probation officer, and the defendant's counsel, the Court sentences Francis Padillo Quirante to the custody of the Bureau of Prisons for a term of 120 months. That is the minimum sentence provided for under the guidelines.
The court explained its view that the 120-month sentence was warranted because Quirante was an officer of a vessel coming into the United States, and "the whole setup indicates . . . this is not the first time, likely not the first time that he has participated," and he did so readily. The court added:
The amount of drugs involved and the potential to do damage in the country— coming through our ports, he was a guest here—makes the Court find that the safety valve should not be used in this instance.
With that said, the court sentenced Quirante to 120 months in prison and five years of supervised release. The court noted that it was sure counsel for Quirante wished to object to what the court characterized as its "not accepting the safety valve recommendation." Counsel had no other objection.
It is clear to us that the district court believed that the safety-valve provision is precatory not mandatory, a suggestion not a command. The district court thought that even if a defendant meets all of the requirements of the safety valve, as Quirante does, it is still discretionary with the court whether to give him the benefit of the provision. The court said as much: And the court acted on its belief, sentencing Quirante to the mandatory minimum sentence and labeling it as that: See U.S.S.G. § 5G1.1(b) () Finally, in summing up defense counsel's objection, the court described what it was doing as "not accepting the safety valve recommendation."
The district court was mistaken. The safety-valve provision mandated by 18 U.S.C. § 3553(f) and reflected in § 5C1.2 of the guidelines is not discretionary. Its plain terms are plainly mandatory. The statutory language states that when a defendant has been...
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