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United States v. Lizarraga-Carrizales

United States Court of Appeals, Ninth Circuit

July 2, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ROBERTO IVAN LIZARRAGA-CARRIZALES, Defendant-Appellant

Argued and Submitted, Pasadena, California June 2, 2014.

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:09-cr-00691-WQH-1. William Q. Hayes, District Judge, Presiding.

Criminal Law

The panel affirmed a sentence in a case in which the defendant claimed 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.

The panel held that the safety valve determination under 18 U.S.C. § 3553(f) does not implicate Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because it does not increase the statutory minimum sentence, and that the district court therefore properly engaged in judicial fact-finding in making that determination.

The panel further held that the district court correctly assigned more than one criminal history point to the defendant because he was on probation when he committed the federal offense and because there was an intervening arrest between his two state convictions in 2000. Because these assignments render the defendant ineligible for safety valve relief, the panel concluded that any error in assigning a criminal history point for the defendant's sentence of three years' probation for his 2008 conviction was harmless.

James Fife (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter, Chief, Appellate Section, Criminal Division, Daniel E. Zipp (argued), Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee.

Before: Stephen S. Trott and Consuelo M. Callahan, Circuit Judges, and Mark W. Bennett, District Judge.[*] Opinion by Judge Callahan.

OPINION

Page 996

CALLAHAN, Circuit Judge:

Defendant-Appellant Roberto Ivan Lizarraga-Carrizales (" Lizarraga" ) appeals his sentence imposed following his guilty plea to importation of heroin in violation of 21 U.S.C. § § 952 and 960 (the " federal offense" ). 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. We hold that the safety valve determination under 18 U.S.C. § 3553(f) does not implicate Alleyne v. United States,

Page 997

133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because it does not increase the statutory minimum sentence. We further hold that the district court correctly assigned more than one criminal history point to Lizarraga because he was on probation when he committed the federal offense and because there was an intervening arrest between his two state convictions in 2000. Accordingly, Lizarraga was ineligible for safety valve relief, and we affirm.

I

On October 10, 2008, Lizarraga drove into the United States at San Ysidro, California and was arrested after border officers found 7.25 kilograms of heroin hidden inside his vehicle. Lizarraga eventually pled guilty to drug importation in violation of 21 U.S.C. § § 952 and 960. Because Lizarraga was convicted of importing a kilogram or more of heroin, the ten-year mandatory minimum ...


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