U.S. v. Gamboa-Cardenas, No. 05-50151 (11-8-07). The "safety valve" sinks in the jurisdictional Maritime waters. Defendants were convicted of drug crimes under the Maritime Drug Law Enforcement Act. The sentencing court applied the safety valve to the mandatory minimums, then codified at 46 USC 1903. On appeal, the 9th (Smith and Kleinfeld) hold that the safety valve statute, 18 USC 3553(f), unambiguously does not apply to the offense because it is not expressly included in either the safety valve statute nor in 21 USC 960(a). If it is not enumerated, then the statutory canons sink its application. Furthermore, the 9th finds that the legislative construction and history do not support treating 1903 offenses as the same as 960 offenses. In dissent, Fisher argues that the reading of the statute is not so clear. Section 1903 read that it should be punished like section 960, and all offenses in 960 get the safety valve. Fisher would find that it is ambiguous, and that policy supports application.

It is hoped this goes en banc.