UNITED STATES OF AMERICA, Appellee, v. BELSYS DE CARMEN SEIJAS-MARTINEZ, Defendant-Appellant., (2nd Cir. 2006)

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, at Foley Square, in the City of New York,

on the 25th day of January, two thousand and six.

PRESENT:

RALPH K. WINTER

JOSÉ A. CABRANES

ROBERT D. SACK,

Circuit Judges.

x

UNITED STATES OF AMERICA,

Appellee,

v. No. 05-1070

BELSYS DE CARMEN SEIJAS-MARTINEZ,

Defendant-Appellant.

x

FOR APPELLANT: B. Alan Seidler, New York, NY.

FOR APPELLEE: Scott Klugman, Assistant United States Attorney

(Roslynn R. Mauskopf, United States Attorney for the

Eastern District of New York, Susan Corkery, Assistant

United States Attorney, on the brief), United States

Attorney's Office for the Eastern District of New York,

Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern District of New York (David G. Trager, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.

Defendant appeals from a February 23, 2005 judgment of the District Court adjudging her guilty of conspiracy to possess more than one kilogram of heroin with intent to distribute it in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) and sentencing her principally to 120 months' imprisonment. Defendant, who pleaded guilty to the offense of conviction, argues on appeal that the District Court erred in finding her ineligible for a "safety valve" provision that, had it applied to her, would have rendered inapplicable the ten-year mandatory minimum sentence otherwise required by 21 U.S.C. § 841(b)(1)(A) .

We assume the parties' familiarity with the underlying facts and procedural history.

Following a Drug Enforcement Administration investigation, the defendant and others were named in a three-count indictment on May 1, 2003 alleging various drug offenses.

Defendant was charged in Counts One and Three. She eventually pleaded guilty to Count One of the indictment, admitting that she had sold heroin and acknowledging the existence of ten-year mandatory minimum sentence for her offense. At a subsequent proceeding, she specifically admitted that the conspiracy involved more than one kilogram of heroin. At sentencing, defendant argued that the ten-year mandatory minimum provision should not apply to her because she qualified for the "safety valve" provision of 18 U.S.C. § 3553(f).1 Although § 3553(f) 1 The "safety valve" provides, in pertinent part, that limits the "safety valve" to persons with no more than one criminal history point, see id. § 3553(f)(1), defendant argued that because the Supreme Court recently ruled that the United States Sentencing Guidelines ("Guidelines") are no longer mandatory, see United States v. Booker,543 U.S. 220 (2005), and criminal history points are creatures of the Guidelines, the restriction of the "safety valve" to persons with one or zero criminal history points is also now at the discretion of sentencing judges.2 The District Court found that it lacked such discretion and that the ten-year minimum remained in force. On appeal, defendant raises essentially the same arguments.

We have held that Booker and its progeny do not render discretionary the criminal history calculation of 18 U.S.C. § 3553(f)(1), notwithstanding that the statutory provision references the Guidelines. See United States v. Barrero, 425 F.3d 154, 156-57 (2d Cir. 2005) (holding that "district court was plainly correct . . . that it did not have discretion to award . . . only one point under the Guidelines once it had determined, under the process provided by the Guidelines, that [defendant] had two such points" and that "the district court's factual findings with respect to prior convictions do not violate the Sixth Amendment"). Defendant here presents an argument indistinguishable from that which failed in Barrero. We therefore conclude that the District Court properly found the "safety valve" provision of 18 U.S.C. § 3553(f) inapplicable to defendant and, as a result, conclude that the District Court properly considered himself bound by the ten-year mandatory minimum sentence of 21 U.S.C. § 841(b)(1)(A).

We have considered all of petitioner's arguments and find them without merit. The judgment of the District Court is AFFIRMED.

FOR THE COURT, Roseann B. MacKechnie, Clerk of Court By

i n t h e c as e o f a n o f f en s e u n d e r se c t io n 4 0 1 . . . o r 4 0 6 o f t h e C o n t r o l l ed S u b s t a n c es A c t [ 2 1 U.S .C. § § 84 1or 846 ] . . . the co urt s hall im pos e a sen ten ce . . . without rega rd to any statutory minimum sentence, if th e co u rt fi n d s a t s e nt e nc in g , a ft e r t h e G o v e rn m e n t h as b ee n af fo r d ed t h e opportunity to make a recom mend ation, that-- ( 1 ) t h e d e fe n d an t d oe s n o t ha v e m o r e th a n 1 c r im i n a l h i st o ry p o in t , a s d e te r m in e d un d e r t h e sentencin g guidelines; ( 2 ) t h e d e f en d a n t d i d n o t u se v i o le n c e o r cr e d i b le t h r e a ts o f v io l e n c e or p o s se s s a f i re a r m o r other dangerous weapon (or induce another participant to do so) in connection w ith the offense; ( 3 ) t h e o f fe n se d id n o t r es u lt in d e at h o r s er io u s b o d il y i n ju r y t o an y p er so n ; (4) the defendan t was no t an organizer, leader, m anager, or supervisor of oth ers in the offense . . . an d w a s n o t e n g ag e d i n a c o n ti n ui n g c ri m i n al en t er p ri se . . . ; an d (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to t h e G o v e r n m e n t a l l in f o r m a t i o n a n d e vi d e n c e th e d e f e n d a n t h a s c o n c e rn i n g t h e o ff e n s e o r offen ses th at w ere p art o f the sam e cou rse o f con du ct or of a co m m on sche m e or p lan . . . .

18 U .S.C . § 35 53(f ) (em ph asis ad ded ).

2 Also at issue was whether defendant "truthfully provided" information to the government as required by 18 U .S.C. § 3553(f)(5). Because defend ant could n ot satisfy the crim inal history requ iremen t, and one m ust satisfy all prongs to qualify for the "safety valve," we need not add ress this issue.

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