United States v. Lizzaraga-Carrizales

The 18 U.S.C. § 3553(f) safety valve determination does not implicate the United States Supreme Court case Alleyne v. United States because no increase in the statutory minimum sentence occurs as a result, so a district court may engage in judicial fact-finding when making such a determination.

Roberto Ivan Lizarraga-Carrizales (“Lizarraga”) drove into the United States in San Ysidro, California on October 10, 2008 with 7.25 kilograms of heroin hidden inside his vehicle. Border patrol agents found the heroin and arrested Lizarraga. Lizarraga then pled guilty to importation of heroin, a violation of 21 U.S.C. §§ 952 and 960. A conviction of that crime triggered a ten-year mandatory minimum sentence established by 21 U.S.C. § 960(b). The district court sentenced Lizarraga to 120 months custody. The district court denied Lizarraga’s request under 18 U.S.C. § 3553(f) for safety valve relief in imposing Lizarraga’s sentence. Lizarraga’s main argument on appeal was that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013), required the facts underlying the safety valve determination to be submitted to a jury. Noting that it had yet to decide in a published opinion whether the safety valve determination implicates Alleyne, the Ninth Circuit held that a denial of safety valve relief does not increase a statutory maximum or minimum sentence such that Alleyne is implicated. Having already held that the safety valve determination does not violate Apprendi despite its reliance on judicial fact-finding, the panel decided the factual predicate to denying safety valve relief does not need to be proven to a jury. These determinations, the panel noted, include “whether a defendant was on probation at the time of his arrest for a federal offense and whether there was an intervening arrest between a defendant’s prior convictions for which he was sentenced on the same day, may be made by the judge by a preponderance of the evidence.” AFFIRMED.