Friday, December 08, 2006

Case o' The Week: Safety Valve still safe, Cardenas-Juarez

Senior Judge David R. Thompson leaves his bankruptcy field for a welcome foray into criminal law in United States v. Cardenas-Juarez, __ F.3d __, No. 05-30250, Slip op. at 19309 (9th Cir. Dec. 8, 2006), opinion available here. Impressive advocacy by the Montana Federal Defender (and the government's concession that the FPD was right) establishes that the Safety Valve survives Booker.

Players: Defender Tony Gallagher, AFPDs David Avery and Evangelo Arvanetes with an important win from the Montana FPD (at least, important for Montana).

Facts: Cardenas-Juarez was arrested and pleaded guilty to possession for sale of over 500 grams of cocaine. Id. at 19312. District Judge Sam Haddon asked the parties for briefing on whether the “safety valve” statute required sentencing within the guidelines. When both parties said yes, the Court held – over both parties’ objections – that an “advisory” safety valve statute was trumped by the “mandatory” mandatory-minimum statutory sentence, and gave the defendant the mand-min five year sentence . Id. at 19313.

Issue(s): “[T]he district court concluded that . . . Booker rendered the statutory safety valve of 18 U.S.C. § 3553(f) advisory, and therefore it was ‘trumped’ by the mandatory minimum set forth in 21 U.S.C. § 841.” Id. at 19312.

Held: “We now hold that the safety valve statute, 18 U.S.C. § 3553(f), survives Booker to require district courts to impose sentences pursuant to the advisory Sentencing Guidelines. This is consistent with congressional intent both to provide relief for less serious offenders and to reduce sentencing disparity. When the statutory safety valve requirements of § 3553(f) are met, district courts still must consult the Guidelines and take them into account when sentencing, even though they now have the discretion to impose non-Guidelines sentences.” Id. at 19316 (internal citations and quotations omitted) (emphasis in original).

Of Note: Montana District Judge Haddon, a W. Bush appointee, is frequently at the eye of Apprendi maelstroms. In United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), Judge Haddon stated, “It is the position of this court in this matter, as it is in all such cases, that the facts as recited in the presentence report are prima facie evidence of the facts set out there; that if the defendant challenges the facts set forth in the presentence report, it is the burden of the defendant to show that the facts contained in the report are either untruthful, inaccurate, or otherwise unreliable.” Ameline, 409 F.3d at 1075 (emphasis added).

Of course, Judge Haddon’s position sparked the en banc rebuke that “when the government seeks an upward adjustment, it bears the burden of proof. Here, the district court also erred by placing the burden of proof on the defendant to disprove the upward adjustment recommended in the PSR and sought by the government.” Id. at 1086 (emphases added).

How to Use: This is an important decision in Montana: apparently Judge Haddon has applied his novel theory to disqualify many other Safety Valve-eligible defendants. Considering that the government agreed with the defense in this Montana case, odds are that this issue hasn’t come up much outside of Big Sky country.

For Further Reading: (Full disclosure – this is a plug for two friends and co-authors). Arizona FPD Jon Sands and AFPD Jane McClellan anticipated many of these complications between Safety Valve and Booker years ago. In The Hedgehog, the Fox, and the Guidelines: Blakely’s Possible Implications for the Safety Valve, the duo described the “hall of mirrors” presented by the statute and the Supreme Court decision. A free copy of the article can be found at Berman’s blog here. The article is worth a close read, particularly in light of the Ninth’s recent punt in Zavala/Carty and the Booker uncertainty pending the Supreme Court's action in Claiborne and Rita. See Professor Berman's blog on Zavala/Carty stay here.

Steven Kalar, Senior Litigator. Website available at



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