Sunday, July 20, 2014

Case o' The Week: Ninth Turns Up Nose at State Action and Federal Sentences - Lizarraga-Carrizales and Safety Valve

Lizarraga may have obtained the termination of his probation in hope of affecting his sentence for the federal offense, thus risking an odor of gaming the federal sentencing system.” United States v. Lizarraga-Carrizales, 2014 WL 2958614, *5 (9th Cir. July 2, 2014), decision available here.

Players: Decision by Judge Callahan, joined by Judges Trott and District Judge Bennett. Hard-fought appeal (following some admirable pre-sentencing litigation) by AFD James Fife, Federal Defenders of San Diego, Inc.

Facts: Lizarraga-Carrizales was caught on the border with 7 kilos of heroin, and convicted of drug importation. Id. at *1. That triggered a ten-year mand-min under 21 U.S.C. § 960(b). Id. 
  The district court rejected his arguments for Safety Valve, finding him ineligible because he had too many criminal history points (five, instead of the maximum of one). Id.  

Issue(s): “Lizarraga claims that the district court improperly engaged in judicial fact-finding in denying him safety valve relief from the mandatory minimum sentence and misapplied the Sentencing Guidelines.” Id. at *1. “Lizarraga’s primary contention on appeal is that the facts underlying the safety valve determination must be submitted to a jury under Apprendi . . . . and Alleyne . . . . We have yet to decide in a published decision whether the safety valve determination implicates Alleyne . . . .Id. at *2 (internal quotations and citations omitted)..  

Held:We hold that the safety valve determination under 18 U.S.C. § 3553(f) does not implicate Alleyne v. United States . . .  133 S. Ct. 2151 . . . (2013), because it does not increase the statutory minimum sentence.” Id. at *1. “We agree with the First Circuit that the denial of safety valve relief does not increase the statutory maximum or minimum such that Alleyne is implicated . . . . Accordingly, the factual predicate for denying safety valve relief need not be proven to a jury.” Id. at *3.  

Of Note: Lizarraga-Carrizales is a buffet of unappetizing entrees for counsel slugging away for their Safety Valve-(ish) clients. Through some clever and aggressive litigation, two of the state probation terms that caused unwanted points in this case were ended early, nunc pro tunc, in state court. Id. at *4. 
  The Ninth resuscitates these dead probationary terms, concluding that the key issue was whether the defendant was on probation at the time of the offense – not at the time of the federal sentencing. The tone of the opinion takes umbrage at state court’s tinkering with facts underlying a federal sentence. Interesting to contrast this federal supremacy theme to the remarkable deference shown to state courts in AEDPA habeas litigation, where state rulings on criminal law issues seem to reign supreme.

How to Use: A client gets a CH point only if the actual probation sentence imposed is more than a year. What if a Safety Valve aspirant gets that state probationary term reduced to less than a year, nunc pro tunc, after the federal arrest? That’s one narrow little issue left unresolved in Lizarraga-Carrizales. See id. at *5. There’s some tension in Ninth law on this issue – take a look if a sympathetic state judge is open to some help on a probationary term.
For Further Reading: The -2 offense level reduction in the drug guidelines is fully retroactive! See Press Release here.  The Sentencing Commission voted on Friday July 18 to make their amendment to the drug guideline fully retroactive. On average, this change will save 25 months off of a federal sentence. Id.
 Sentencing Commissioners in office of Hon. Senator Durbin
Barring Congressional action, judges can start considering petitions for reductions after November 1, 2014 (though no inmate will be released before November 1, 2015). 
  In the ND Cal, new SF AFPD Shilpi Agarwal will be spearheading the effort to get the district’s CJA clients retroactive relief – stay tuned for more news and updates on these efforts. 
  Finally, NorCal’s own Judge Breyer was one of the Commissioners who voted for full retroactivity of this amendment – much credit due to the Hon. CRB (and his fellow Commissioners) for this remarkable USSG development.

Image of man holding nose from, Image of Commissioners at the office of the Honorable Senator Dick Durbin from

Steven Kalar, Federal Public Defender, ND Cal Website at


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