Downward Departure to Cat I for Overrepresented Criminal History Does Not Make Defendant Safety-Valve Eligible

United States v. Jasso, No. 10-40203 (5th Cir. Feb. 17, 2011) (Garza, Stewart, Haynes)

Let's say you're facing a mandatory minimum, but you're ineligible for safety valve relief because you've got more than one criminal history point.  What if you persuade the district court that your criminal history category is overrepresents the seriousness of your criminal history, and you get a departure to category I under guideline §4A1.3?  Will that make you safety-valve eligible?

No.  The safety valve criteria—including the no-more-than-one-point limitation—are found in both a guideline (U.S.S.G. §5C1.2(a)) and a statute (18 U.S.C. § 3553(f)).  In 2003, the guideline was amended "to require . . . that the defendant not have more than one criminal history point 'as determined under the sentencing guidelines before application of subsection of 4A1.3.”  And prior to that time, courts had interpreted the statute to have the same restriction.

What about Booker?  Didn't it render § 3553(f) advisory? "Although this is an issue of first impression in this circuit, we note that every court of appeals that has addressed this argument has rejected it. . . . We join our sister circuits in holding that Booker did not impair or render advisory § 3553(f)(1)’s requirement that a defendant 'not have more than 1 criminal history point' as a prerequisite to safety valve relief."

One last shot:

Jasso argues alternatively that the 2003 amendment to U.S.S.G. § 5C1.2(a)(1), which added the words “before application of subsection (b) of § 4A1.3,” constituted an improper delegation by Congress of its rule-making authority to the United States Sentencing Commission. This argument is frivolous. The constitutionality of the Guidelines, and the Commission’s authority to promulgate them, is beyond cavil. See Mistretta v. United States, 488 U.S. 361 (1989); accord Booker, 543 U.S. at 242 (“Our holding today does not call into question any aspect of our decision in Mistretta.”). We do not find that the 2003 amendment to § 5C1.2(a)(1) falls outside the Commission’s authority or violates the nondelegation doctrine.