                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0239n.06

                                           No. 08-6264                                   FILED
                                                                                     Apr 19, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF TENNESSEE
OSCAR CARREON,                         )
                                       )
                                                                OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: BATCHELDER, Chief Judge; MOORE and COOK, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Oscar Carreon pleaded

guilty to conspiring to distribute methamphetamine, and the district court sentenced him to 120

months of imprisonment—the mandatory statutory minimum. Carreon appeals, arguing that the

district court should have granted him either a departure or a variance, which Carreon claims would

have made him eligible for 18 U.S.C. § 3553(f), the so-called “safety-valve.” As explained below,

we do not have jurisdiction to review the district court’s decision to deny a departure and, in any

event, neither a departure nor a variance would have changed Carreon’s sentence. Therefore, we

AFFIRM the district court’s judgment.

                                      I. BACKGROUND

       On June 23, 2008, Carreon pleaded guilty to one count of conspiring to distribute 500 grams

or more of a mixture containing methamphetamine, in violation of 21 U.S.C. § 846 and 21 U.S.C.
§ 841(a)(1). The Presentence Investigation Report (“PSR”) determined Carreon’s total offense level

to be twenty-nine. It further determined that Carreon had three criminal history points resulting from

a previous DUI conviction and the fact that Carreon committed the current offense while on

probation. Having determined that Carreon had a criminal history category of two, the PSR

calculated Carreon’s Guidelines range to be ninety-seven to 121 months of imprisonment. Because

§ 841(b)(1)(A) required a minimum sentence of ten years, however, the PSR determined that the

effective Guidelines range was 120 to 121 months.

       Carreon objected to the PSR, arguing that his offense level should have been reduced because

he was only a minimal or minor participant in the offense. Carreon also argued, both in his

objections and in a subsequent motion, that his criminal history was over-represented. In particular,

Carreon downplayed the severity of his DUI conviction and explained that his probation was due to

end only twelve days after he was arrested. Therefore, Carreon argued that he should receive either

a downward variance or a downward departure pursuant to U.S. Sentencing Guidelines Manual

(U.S.S.G.) § 4A1.3(b) (2007), in which case, Carreon argued, the “safety valve” found in 18 U.S.C.

§ 3553(f) would apply because he would have one or fewer criminal history points. This, in turn,

would mean that the district court was not bound by the ten-year statutory minimum sentence. The

government filed a response arguing that, even if Carreon’s criminal history points were reduced,

the “safety-valve” was still inapplicable because Carreon had not truthfully provided all the

information he possessed regarding the offense for which he was convicted.

       The district court held a sentencing hearing on September 22, 2008, at which time both the

government and Carreon presented arguments concerning the applicability of the “safety valve.” The

district court found that the “safety valve” did not apply because Carreon had three criminal history


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points. The district court rejected Carreon’s claim that his criminal history was over-represented,

noting that Carreon committed the crime while on probation and “should have known better than

that.” Dist. Ct. Doc. 121 (Sent. Hr’g Tr. (9/22/08) at 18). The court then sentenced Carreon to 120

months of imprisonment, the lowest sentence possible in light of the statutory minimum. Carreon

appealed.

                                         II. ANALYSIS

       Under 21 U.S.C. § 841(b)(1)(A), the district court ordinarily would not have been able to have

sentenced Carreon to less than 120 months, which is the sentence that he received. Carreon, however,

argues that 18 U.S.C. § 3553(f)’s “safety valve” permitted a sentence below the statutory minimum.

Under § 3553(f), a district court may disregard § 841’s statutory minimum if it finds that:

       (1) the defendant does not have more than 1 criminal history point, as determined
           under the sentencing guidelines;
       (2) the defendant did not use violence or credible threats of violence or possess a
           firearm or other dangerous weapon (or induce another participant to do so) in
           connection with the offense;
       (3) the offense did not result in death or serious bodily injury to any person;
       (4) the defendant was not an organizer, leader, manager, or supervisor of others in
           the offense, as determined under the sentencing guidelines and was not engaged
           in a continuing criminal enterprise, as defined in section 408 of the Controlled
           Substances Act; and
       (5) not later than the time of the sentencing hearing, the defendant has truthfully
           provided to the Government all information and evidence the defendant has
           concerning the offense or offenses that were part of the same course of conduct
           or of a common scheme or plan, but the fact that the defendant has no relevant
           or useful other information to provide or that the Government is already aware
           of the information shall not preclude a determination by the court that the
           defendant has complied with this requirement.

18 U.S.C. § 3553(f). U.S.S.G. § 5C1.2 contains a virtually identical provision.

       The PSR determined that, under U.S.S.G. § 4A1.1 and § 4A1.2, Carreon had three criminal

history points, which would prevent Carreon from satisfying the first of the “safety valve’s” five


                                                 3
requirements. Carreon does not dispute the PSR’s initial calculation, but rather argues that (1) the

district court should have granted him a departure pursuant to U.S.S.G. § 4A1.31 and (2) the district

court should have granted him a variance. Had the district court done so, Carreon reasons, the

“safety-valve” would have applied and Carreon’s Guidelines range would have been lower.

       Carreon’s claim that the district court should have granted him a departure fails for two

reasons. First, we do not have appellate jurisdiction to review a district court’s decision to deny a

departure when there is no indication that the district court was unaware of its discretion to do so.

See United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009). Here, the district judge evaluated

Carreon’s claim that his criminal history category was over-represented but simply found this

argument unconvincing, a decision we may not review. Furthermore, even if the district court had

granted a departure, Carreon still would not have been eligible for the “safety valve.” As we

explained in United States v. Penn, 282 F.3d 879 (6th Cir. 2002), a departure under § 4A1.3 does not

change the number of criminal history points a defendant receives, only the final guideline range that

results, and the “safety valve” is concerned only with the former. Penn, 282 F.3d at 882. The 2003

amendments to § 4A1.3 changed some of the language upon which the Penn panel relied, but Penn’s

holding is still valid. Indeed, the amended version of § 4A1.3 explicitly states that a downward

departure pursuant to that section “does not meet the criterion of . . . § 5C1.2 (Limitation on

Applicability of Statutory Maximum Sentences in Certain Cases).” U.S.S.G. § 4A1.3(b)(3)(B); see

also U.S.S.G. § 5C1.2 cmt. n.1 (“‘More than 1 criminal history point, as determined under the

sentencing guidelines,’ as used in subsection (a)(1), means more than one criminal history point as


       1
        Section 4A1.3 permits a downward departure when a criminal history category “substantially
over-represents the seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” U.S.S.G. § 4A1.3(b)(1).

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determined under § 4A1.1 (Criminal History Category) before application of subsection (b) of

§ 4A1.3 (Departures Based on Inadequacy of Criminal History Category).”).

       Similarly, the district court could not have given Carreon a lower sentence by granting him

a downward variance. As a panel of this court explained in United States v. Branch, 537 F.3d 582

(6th Cir.), cert. denied, 129 S. Ct. 752 (2008), the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), had no effect upon statutory mandatory minimum sentences and

exceptions to those minimum sentences such as the “safety valve.” Branch, 537 F.3d at 592. Thus,

although the Guidelines are not mandatory when applied independently, the district court still must

adhere to the Guidelines insofar as they incorporate the provisions of § 3553(f). Id. at 592-93.

Therefore, the district court properly denied the “safety valve” because any variance or departure

would not have affected § 3553(f)’s applicability.

                                      III. CONCLUSION

       For the reasons stated above, we AFFIRM Carreon’s sentence.




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