REBECCA BEACH SMITH, District Judge.
This matter came before the court on the court's sua sponte correction of defendant Raymond N. Brown Jr.'s sentence pursuant to Federal Rule of Criminal Procedure 35 ("Rule 35"). In a ruling from the bench, the court corrected the defendant's sentence by applying the safety valve provision of 18 U.S.C. § 3553(f) ("safety valve provision" or "safety valve"), and sentenced the defendant to one hundred (100) months incarceration and five (5) years of supervised release.
On July 19, 2010, the defendant pled guilty to Count One of a five-count Second Superseding Indictment pursuant to a written plea agreement. The court accepted the defendant's plea of guilty and ad judged him guilty of Count One on the same day. Count One charged defendant with Conspiracy to Distribute and Possess With Intent to Distribute Five Kilograms or More of Cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(ii), and § 846. The offense conduct the defendant admitted in the filed statement of facts accompanying his plea agreement was, in essence, that he participated in a drug conspiracy by renting a storage shed in his backyard to his co-defendants so that they could store cocaine there before repackaging and selling it. During the course of his participation in the conspiracy, the defendant permitted storage of 104 kilograms of cocaine on his property.
On November 18, 2010, this court sentenced the defendant to a term of one hundred twenty (120) months imprisonment, the mandatory minimum sentence, and five (5) years of supervised release.
The court subsequently determined that a correction of sentence pursuant to Rule 35 was required. As a result, the court conducted a hearing pursuant to Rule 35 on December 1, 2010.
The interpretation of the safety valve, codified at 18 U.S.C. § 3553(f), is the central issue that concerned the court. More precisely, the court needed to determine as a matter of law whether a defendant whose Guidelines range is above the statutory mandatory minimum is eligible for the safety valve, when all criteria of that statutory provision are met, and thus eligible to be sentenced without regard to that minimum sentence.
The safety valve provision provides:
18 U.S.C. § 3553(f) (emphasis added).
In enacting the safety valve in 1994, Congress acted "to remedy an inequity in the Guidelines whereby more senior operatives could obtain lighter sentences than less culpable lower-level operatives because the former had more information to offer than the latter and so could benefit from the Substantial Assistance downward departure under U.S.S.G. § 5K1.1." United States v. Washman, 128 F.3d 1305, 1307 (9th Cir.1997); see United States v. Ivester, 75 F.3d 182, 183 (4th Cir.1996).
After Booker, however, the Guidelines are now advisory. 543 U.S. at 245, 125 S.Ct. 738; e.g., United States v. Pauley, 511 F.3d 468, 472 (4th Cir.2007). The question then is what effect this case law has had on the operation and application of the statutory safety valve provision. The Fourth Circuit has not yet spoken on this issue, but this court is guided`by the decisions of other circuits. The Seventh Circuit stated plainly that "[u]nder the regime of Booker, the judge is to treat the guidelines as only advisory even in a safetyvalve case." United States v. Tanner, 544 F.3d 793, 795 (7th Cir.2008) (citing United States v. Quirante, 486 F.3d 1273, 1276 (11th Cir.2007) (holding that when a defendant meets the requirements for the safety valve, its application is mandatory)). Additionally, the Ninth Circuit reached the same conclusion, holding "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." United States v. Cardenas-Juarez, 469 F.3d 1331, 1334 (9th Cir.2006) (emphasis in original).
In so holding, the Ninth Circuit cited and followed the decision in United States v. Duran, 383 F.Supp.2d 1345 (D.Utah 2005), which discussed in depth the operation of the Guidelines within the safety valve. There, the government argued that the mandatory Guidelines sentencing scheme was preserved for the safety valve provision because Booker made no intimations concerning the constitutionality of the mandatory Guidelines within the safety valve. Id. at 1346. The court, however, held that to interpret the provision to preserve the mandatory Guidelines "would render it unconstitutional under the Sixth Amendment as interpreted in Booker." Id. at 1347. Thus, the court held that "[s]o long as the court consults the Guidelines in determining an appropriate sentence, any resulting sentence is `pursuant to' the Guidelines." Id.
An opinion in this district has also considered and followed the reasoning in Duran, concluding that given the serious constitutional questions raised by making the Guidelines range mandatory after Booker, as regards the safety valve provision, "the guideline range determined under 18 U.S.C. § 3553(f) should be advisory only, and considered along with the other factors of § 3553(a)." See United States v. Cherry, 366 F.Supp.2d 372, 376 (E.D.Va. 2005).
In cases involving statutory interpretation, the court begins with the plain language of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); Brown & Williamson Tobacco Corp. v. Food & Drug Admin., 153 F.3d 155, 162 (4th Cir.1998). The statute states that when the defendant meets the five criteria listed, "the court shall impose a sentence pursuant to guidelines . . . without regard to any statutory minimum sentence." 18 U.S.C. § 3553(f) (emphasis added). The question then is what "pursuant to the guidelines" means in the context of the statute. Before Booker, it most certainly meant that the defendant would be sentenced within the mandatory Guidelines sentencing scheme. However, post-Booker, each of the courts to consider this question has held that "pursuant to the guidelines" means that the court should consider the Guidelines under the factors of the sentencing statute, 18 U.S.C. § 3553(a), but treat them as advisory, not mandatory. See Tanner, 544 F.3d at 795; Cardenas-Juarez, 469 F.3d at 1334; Duran, 383 F.Supp.2d at 1347; Cherry, 366 F.Supp.2d at 376. To do otherwise would render the safety valve provision unconstitutional under Booker. Accordingly, this court follows the logic of these other courts and the plain language of the statute.
The plain language of the statute says absolutely nothing about any requirement that the defendant's Guidelines be below the mandatory minimum in order for him to be eligible for the safety valve. Indeed, the canon of expressio unius est exclusio alterius
Furthermore, for the court to interpret the calculated Guidelines range as binding upon whether the safety valve provision applied would give rise to serious constitutional questions, as mentioned in Duran and Cherry, which another canon of construction, the avoidance canon, counsels the court to eschew confronting. See, e.g., Mary Helen Coal Corp. v. Hudson, 235 F.3d 207, 214 (4th Cir.2000) (citing NLRB
Therefore, this court holds that interpreting the plain language of the safety valve statute with Booker and the postBooker case law as guidance, it is apparent that the defendant's Guidelines range does not control whether he is eligible for the safety valve. In other words, the statute commands that the court impose a sentence "pursuant to the guidelines" in the same way that it does so in any sentencing: by being advised by the Guidelines and the Section 3553(a) factors to arrive at sentence that is "sufficient, but not greater than necessary." 18 U.S.C. § 3553(a).
Given the court's misapplication of the safety valve provision at the initial sentencing, the question is whether a Rule 35 correction of sentence for "clear error" was warranted.
District courts are authorized to modify previously imposed terms of imprisonment pursuant to the provisions of Rule 35. 18 U.S.C. § 3582(c)(1)(B); see United States v. Fields, 552 F.3d 401, 404 (4th Cir.2009) ("Fed.R.Crim.P. 35(a) provides the only authority for the district court to correct or change [a] sentence."). Under Rule 35, "[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error."
The Fourth Circuit has set narrow boundaries within which district courts may correct sentences for clear error. See, e.g., Fields, 552 F.3d at 404 ("[T]he scope of `clear error' correctable under Rule 35(a) is extremely narrow.") (citing Fed.R.Crim.P. 35(a), advisory committee's note ("The authority to correct a sentence under [Rule 35(a) is intended to be very narrow and to extend only to. errors which would almost certainly result in a remand of the case.")); United States v. Ward, 171 F.3d 188, 191 (4th Cir.1999) (clear error must be "errors which would almost certainly result in a remand of the case to the trial court" (citation and internal quotation marks omitted)). In a case similar to the one before this court, United States v. Cook, the Fourth Circuit affirmed the district court's correction of the defendant's sentence under Rule 35. There, the judge stated at sentencing that he intended to sentence under the third option of section 5C2.1(c) of the Guidelines, but "subsequently realized that he had incorrectly interpreted" that provision and sua sponte issued an amended judgment and sentencing order. Cook, 890 F.2d at 674. The Fourth Circuit affirmed, holding that it is clear error "where the district court states that a particular kind of sentence is to be imposed and then imposes a different sentence solely because of an acknowledged misinterpretation of the pertinent guidelines section." Id. at 675; see also United States v. Clay, 627 F.3d 959, 964 (4th Cir.2010) (improper calculation of Guidelines is reversible error).
The Fourth Circuit has not, however, addressed whether a misapplication of the safety valve constitutes clear error. Two other circuits have addressed this issue, reaching differing conclusions. The Eleventh Circuit, in United States v. Lett, 483 F.3d 782 (11th Cir.2007), faced a situation identical to the case here: the mistaken denial of the application of the safety valve to a defendant whose Guidelines range was above the mandatory minimum followed by a Rule 35 correction of that sentence to apply the safety valve. In that case, the district court held, like this court has, that "when all five conditions of § 5C1.2 are satisfied, the Defendant is safety valve eligible and the Court's sentencing discretion is not bounded by a statutory mandatory minimum sentence irrespective of whether the accurately calculated advisory guidelines sentencing range is above or below that mandatory minimum." Id. at 786-87. On appeal, the Eleventh Circuit held that a correction of sentence was not warranted because the district court had not committed clear error in its initial sentencing as the sentence was "not illegal, and any error was not of an obvious type." Id. at 789. Essential to its finding that the district court had not committed clear error was an admission by the district court, with which the circuit agreed, that the answer to the substantive question concerning the safety valve was not clear. Id. The Eleventh Circuit thus reversed and remanded
The Sixth Circuit came to the opposite conclusion in United States v. Branch, 537 F.3d 582 (6th Cir.2008). In that case, the Sixth Circuit held that it was clear error, and thus correctable error under Rule 35, for the district court to mistakenly apply the safety valve to a defendant who did not meet the five statutory criteria because he had more than one criminal history point. Id. at 595-96. The Sixth Circuit thus affirmed the district court's corrected judgment, because it was well-settled that a defendant may have no more than one criminal history point under the statute.
For the reasons set forth, this court declines to follow Lett, and instead looks to the prior Fourth Circuit precedent in Cook and the other cases concerning the safety valve,
Additionally, this case is different from another of the Fourth Circuit's decisions limiting the reach of Rule 35. In United States v. Fields, the Fourth Circuit held that the district court's failure to impose a fine at resentencing was not clear error correctable under Rule 35 because the district court was not required to impose a fine. Fields, 552 F.3d at 404 (citing, inter alia, Ward, 171 F.3d at 191). By contrast, here the court found the defendant met the requirements for the application of the safety valve, but, in violation of 18 U.S.C. § 3553(f), nonetheless imposed a sentence that took account of the statutory mandatory minimum sentence. It is reversible error to impose a
In sum, the court must apply the safety valve to the defendant if he qualifies, thereby relieving him of the statutory requirement of a mandatory minimum sentence. The court is then not required to go below the mandatory minimum sentence, or adhere to the advisory Guidelines, in sentencing the defendant under 18 U.S.C. § 3553(a), as long as the court properly recognizes the legal effect of both. The court thus clearly erred in determining that the mandatory minimum was the required sentence when the defendant qualified for the safety valve but his Guidelines range exceeded the mandatory minimum. This error was a clear and acknowledged mistake, one which was rightfully corrected under Rule 35.