                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,             
               Plaintiff-Appellant,         No. 05-50151
               v.
                                             D.C. No.
                                          CR-03-02000-2-IEG
CARLOS HERNANDO GAMBOA-
CARDENAS,
              Defendant-Appellee.
                                      

UNITED STATES OF AMERICA,                  Nos. 05-50152
Plaintiff-Appellant/Cross-Appellee,
                                                 05-50188
                 v.
                                             D.C. No.
EDGAR CUERO-ARAGON,                       CR-03-02000-4-IEG
         Defendant-Appellee/Cross-
                         Appellant.
                                      

UNITED STATES OF AMERICA,                  Nos. 05-50153
Plaintiff-Appellant/Cross-Appellee,
                                                 05-50187
                 v.
                                             D.C. No.
JAIMEN BARAHONA-ESTUPINAN,                CR-03-02000-1-IEG
        Defendant-Appellee/Cross-
                       Appellant.
                                      




                           14675
14676        UNITED STATES v. GAMBOA-CARDENAS



UNITED STATES OF AMERICA,                  No. 05-50154
               Plaintiff-Appellant,
               v.                            D.C. No.
                                          CR-03-02000-3-IEG
JAIRO GAMBOA-VICTORIA,
                                              OPINION
              Defendant-Appellee.
                                      
       Appeal from the United States District Court
          for the Southern District of California
     Irma E. Gonzalez, Chief District Judge, Presiding

                  Argued and Submitted
          January 11, 2007—Pasadena, California

                  Filed November 8, 2007

   Before: Andrew J. Kleinfeld, Raymond C. Fisher, and
            Milan D. Smith, Jr., Circuit Judges.

           Opinion by Judge Milan D. Smith, Jr.;
  Partial Concurrence and Partial Dissent by Judge Fisher
              UNITED STATES v. GAMBOA-CARDENAS             14679


                          COUNSEL

Patrick H. Hearn (argued), Special Assistant United States
Attorney, and David P. Curnow, Assistant United States
Attorney, San Diego, California, for the plaintiff-appellant.

Andrew K. Nietor (argued), San Diego, California, for
defendant-appellee Gamboa-Cardenas. Stephen P. White, San
Diego, California, for defendant-appellee Cuero-Aragon.
James Winston Gleave, San Diego, California, for defendant-
appellee Barahona-Estupinan. Casey Donovan (argued), San
Diego, California, for defendant-appellee Gamboa-Victoria.


                           OPINION

MILAN D. SMITH, JR., Circuit Judge:

   In this appeal we consider whether the safety valve provi-
sion of 18 U.S.C. § 3553(f) applies to defendants convicted of
possession with intent to distribute cocaine on board a vessel,
in violation of the Maritime Drug Law Enforcement Act, § 3,
46 App. U.S.C. § 1903 (repealed 2006).1 We hold that the




  1
   Title 46 App. U.S.C. § 1903 has been reenacted without relevant
changes in 46 U.S.C. §§ 70501-07.
14680            UNITED STATES v. GAMBOA-CARDENAS
safety valve is unavailable to defendants convicted under 46
App. U.S.C. § 1903.2 Therefore, we vacate the sentences of
Carlos Hernando Gamboa-Cardenas, Jaimen Barahona-
Estupinan and Edgar Cuero-Aragon, and we remand for
resentencing without the safety valve. Because we find that
the government is estopped from arguing that the safety valve
is inapplicable in the case of Jairo Gamboa-Victoria, we
affirm his sentence, including the reduction for acceptance of
responsibility.

            I.   Background and Prior Proceedings

   Acting on a tip from a United States Coast Guard
(“USCG”) aircraft patrolling the international waters of the
Pacific Ocean approximately 480 nautical miles south of San
Jose, Guatemala, a USCG cutter intercepted a “go-fast” boat,3
which was stalled in the water. The USCG officials ques-
tioned the four occupants of the “go-fast” boat in Spanish
concerning their nationality, their last port of call, their next
port of call, and whether they had any documentation for the
vessel. One of the four identified himself as the master of the
“go-fast” vessel and stated that the occupants were Colom-
bian, that the vessel came from the Buenaventura port in
Colombia and that Costa Rica was their next port of call.
Although the occupants produced personal identification, they
could not produce any documentation for the vessel. The
USCG contacted Colombian authorities, who were unable to
confirm that the “go-fast” boat was of Colombian registry. As
a result, the USCG officials boarded the vessel.
  2
     Under 46 App. U.S.C. § 1903(a), “[i]t is unlawful for any person on
board a vessel of the United States, or on board a vessel subject to the
jurisdiction of the United States, to knowingly or intentionally manufac-
ture or distribute, or to possess with intent to manufacture or distribute, a
controlled substance.” This language has been reenacted in its entirety in
46 U.S.C. § 70503.
   3
     A “go-fast” boat is about forty feet long, typically made of fiberglass,
with multiple outboard engines, and is often used to transport cocaine.
              UNITED STATES v. GAMBOA-CARDENAS             14681
   While on board, the USCG officials observed in plain view
sixty-six bales wrapped in plastic on the floor of the boat. The
USCG officials opened one bale on the deck and it field-
tested positive for cocaine. In total, the USCG officials seized
approximately 1,303 kilograms of cocaine from the “go-fast”
vessel. The USCG detained all four occupants of the boat and
transported them to San Diego, California, where FBI agents
conducted interviews with them following their arrests. The
four occupants of the “go-fast” vessel were identified as Jai-
men Barahona-Estupinan, Carlos Hernando Gamboa-
Cardenas, Jairo Gamboa-Victoria and Edgar Cuero-Aragon
(collectively “appellees”).

   A two-count criminal indictment charged the four appellees
with (1) conspiracy to possess cocaine with intent to distribute
on board a vessel in violation of 46 App. U.S.C. §§ 1903(a),
(c) and (j); and (2) possession of cocaine with intent to dis-
tribute on board a vessel in violation of 46 App. U.S.C.
§§ 1903(a), (c)(1)(A) and (f). Appellees entered pleas of not
guilty to both counts of the indictment. At the conclusion of
appellees’ first trial, the jury informed the district court that
it was unable to reach a verdict. The district court subse-
quently granted appellees’ motion for a mistrial based on a
hung jury. Appellees were then re-tried before a new jury on
the same charges. At the conclusion of the second trial, the
jury returned a guilty verdict on both counts against all four
appellees.

   Contrary to the recommendation of the Presentence Report,
and over the government’s objection, the district court deter-
mined that safety valve relief under 18 U.S.C. § 3553(f) was
available to the appellees concerning their criminal convic-
tions under 46 App. U.S.C. § 1903. Accordingly, the govern-
ment conducted the necessary post-conviction interviews with
appellees pursuant to 18 U.S.C. § 3553(f)(5), which states that
the application of the safety valve is contingent on a defen-
dant truthfully providing the government with all information
and evidence that the defendant has concerning the offense.
14682         UNITED STATES v. GAMBOA-CARDENAS
Because it determined that the appellees were truthful in their
safety valve interviews with the government, the district court
concluded that they qualified for the available safety valve
relief and the relevant statutory minimum sentence was thus
inapplicable. At sentencing, the district court found that
appellees played a minor role in the offense and it also deter-
mined that appellees had accepted responsibility for their
crimes. Appellees had no criminal history. After applying the
18 U.S.C. § 3553(a) factors, the district court calculated an
adjusted offense level corresponding to an advisory guidelines
sentencing range of forty-one to fifty-one months for all four
appellees. The district court imposed a forty-one-month sen-
tence on each appellee. We have jurisdiction under 28 U.S.C.
§ 1291 to consider the government’s appeal of the sentences
imposed on appellees.

        II.   Standard of Review and Jurisdiction

   We review de novo the district court’s interpretation of a
statute as well as its interpretation of the sentencing guide-
lines. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th
Cir. 2005); United States v. Ventre, 338 F.3d 1047, 1052 (9th
Cir. 2003). We review for clear error the district court’s fac-
tual determination that a defendant qualifies for a reduced
sentence based on acceptance of responsibility. United States
v. Espinoza-Cano, 456 F.3d 1126, 1130 (9th Cir. 2006).

                       III.   Discussion

   The government raises three challenges to the appellees’
sentences. First, the government contends that the safety valve
provision in 18 U.S.C. § 3553(f) does not apply to offenses
committed under 46 App. U.S.C. § 1903. Second, even
assuming, arguendo, that the safety valve applies to 46 App.
U.S.C. § 1903 offenses, the government argues that appellees
Gamboa-Cardenas, Cuero-Aragon and Barahona-Estupinan
do not qualify for its protection because they failed to satisfy
the fifth element of the safety valve provision, which requires
              UNITED STATES v. GAMBOA-CARDENAS           14683
appellees to provide truthful information and evidence regard-
ing their crimes to the government. See 18 U.S.C.
§ 3553(f)(5). Third, the government contends that the district
court erred by granting appellees a two-level downward
adjustment for acceptance of responsibility.

   We agree with the government that the safety valve provi-
sion of 18 U.S.C. § 3553(f) is inapplicable as a matter of law
to sentences imposed following violations of 46 App. U.S.C.
§ 1903. Accordingly, with respect to appellees Gamboa-
Cardenas, Cuero-Aragon and Barahona-Estupinan, we only
reach the government’s first argument and we vacate their
sentences and remand for resentencing without the safety
valve. We also find, however, that the government is estopped
from raising this argument as to appellee Gamboa-Victoria
and thus the safety valve is available to him. The government
concedes that if the safety valve is available, Gamboa-
Victoria has satisfied the necessary statutory elements to
receive safety valve relief. Thus, our only additional inquiry
with respect to Gamboa-Victoria is whether the district court
erred by applying a two-level downward adjustment for
acceptance of responsibility. Because we find that the district
court did not err in this respect, we affirm Gamboa-Victoria’s
forty-one-month sentence.

  A.   The safety valve provision in 18 U.S.C. § 3553(f)
       does not apply to offenses under 46 App. U.S.C.
       § 1903.

   We find that the plain statutory language indicates that the
safety valve provision in 18 U.S.C. § 3553(f) does not apply
to violations of 46 App. U.S.C. § 1903. First, 46 App. U.S.C.
§ 1903 is not listed in the safety valve statute or 21 U.S.C.
§ 960. Second, a plain reading of 46 App. U.S.C. § 1903(g)(1)
demonstrates that the safety valve is inapplicable as a matter
of law. Furthermore, we find that the evidence relating to the
statutory history of 46 App. U.S.C. § 1903 confirms our plain
language reading of the statute.
14684         UNITED STATES v. GAMBOA-CARDENAS
    1.   Plain Statutory Language

   Historically, defendants convicted of serious drug crimes
could only receive a sentence below the applicable statutory
minimum if the government filed a motion for downward
departure based on the defendant’s substantial assistance to
the authorities under § 5K1.1 of the United States Sentencing
Guidelines (“U.S.S.G.”). However, an inequity in the sentenc-
ing scheme began to develop as more culpable defendants
were able to provide the government with new and useful
information that the lower-level offenders could not. As a
result, the more culpable defendants could avoid the statutory
minimum penalties more easily than the lower-level offend-
ers, who typically had less knowledge and thus had more dif-
ficulty providing sufficient assistance to the authorities to earn
a § 5K1.1 motion from the government on their behalf. See
United States v. Shrestha, 86 F.3d 935, 938 (9th Cir. 1996).
In order to provide relief to lower-level offenders who made
a good faith effort to cooperate with authorities but whose
knowledge was of little use to the government, Congress
passed the Mandatory Minimum Sentencing Reform Act, 18
U.S.C. § 3553(f). The Mandatory Minimum Sentencing
Reform Act, also known as the safety valve provision, pro-
vides relief from otherwise applicable statutory minimum sen-
tences when a defendant satisfies five requirements. The
safety valve provision states:

    (f) Limitation on applicability of statutory mini-
    mums in certain cases. Notwithstanding any other
    provision of law, in the case of an offense under sec-
    tion 401, 404, or 406 of the Controlled Substances
    Act (21 U.S.C. 841, 844, 846) or section 1010 or
    1013 of the Controlled Substances Import and
    Export Act (21 U.S.C. 960, 963), the court shall
    impose a sentence pursuant to guidelines promul-
    gated by the United States Sentencing Commission
    under section 994 of title 28 without regard to any
    statutory minimum sentence, if the court finds at
        UNITED STATES v. GAMBOA-CARDENAS            14685
sentencing, after the Government has been afforded
the opportunity to make a recommendation, 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 con-
    nection 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 sen-
    tencing 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 pro-
    vided 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 defen-
    dant has no relevant or useful other infor-
    mation 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.
14686         UNITED STATES v. GAMBOA-CARDENAS
18 U.S.C. § 3553(f) (emphasis added).4

   [1] Title 18 U.S.C. § 3553(f) states that the safety valve
applies to “an offense under” a limited number of statutes that
are specifically listed in the text, namely: 21 U.S.C. §§ 841,
844, 846, 960 and 963. Title 21 U.S.C. § 960 does not
describe an offense itself, but rather prescribes the penalty for
a number of drug offenses prohibited by other statutes. Spe-
cifically, 21 U.S.C. § 960 provides the penalties for violations
of 21 U.S.C. §§ 952, 953, 955, 957 and 959, all of which are
listed in 21 U.S.C. § 960(a). Accordingly, 18 U.S.C.
§ 3553(f)’s reference to “an offense under . . . 21 U.S.C.
§ 960” invokes the statutes listed in 21 U.S.C. § 960(a), and
thus the safety valve also applies to offenses committed in
violation of 21 U.S.C. §§ 952, 953, 955, 957 and 959.

   [2] Title 46 App. U.S.C. § 1903, however, is not included
in the offenses listed in 18 U.S.C. § 3553(f) or 21 U.S.C.
§ 960(a). The meaning of this exclusion must be interpreted
in light of the entire statutory scheme and legislative purpose.
“The doctrine of expressio unius est exclusio alterius as
applied to statutory interpretation creates a presumption that
when a statute designates certain persons, things, or manners
of operation, all omissions should be understood as exclu-
sions.” Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881,
885 (9th Cir. 2005) (quotation marks omitted). The maxim “is
a rule of interpretation, not a rule of law,” and “is properly
applied only when it makes sense as a matter of legislative
purpose.” Longview Fibre Co. v. Rasmussen, 980 F.2d 1307,
1313 (9th Cir. 1992). “[T]he expressio unius principle
describes what we usually mean by a particular manner of
expression, but does not prescribe how we must interpret a
phrase once written.” Id.
  4
   The safety valve provision is also recited verbatim in U.S.S.G.
§ 5C1.2.
              UNITED STATES v. GAMBOA-CARDENAS              14687
   [3] Here, the omission of 46 App. U.S.C. § 1903 from the
statutes listed in 18 U.S.C. § 3553(f) and 21 U.S.C. § 960(a)
indicates that § 1903 offenses are excluded from safety valve
relief. This conclusion is buttressed by the fact that Congress
codified the current form of 46 App. U.S.C. § 1903 in 1986,
eight years before deciding which statutes to include on the 18
U.S.C. § 3553(f) list of offenses to which safety valve relief
would apply. Congress could have included § 1903 as easily
as it included the other statutes specifically listed in § 3553(f).
The timing of Congress’s actions indicates that it consciously
chose not to include § 1903 offenses on the safety valve list.

   In a similar context, we have previously held that the safety
valve provision in 18 U.S.C. § 3553(f) is only applicable to
the statutes specifically enumerated therein. United States v.
Kakatin, 214 F.3d 1049, 1050-51 (9th Cir. 2000). The issue
presented in Kakatin was whether the safety valve applied to
convictions under 21 U.S.C. § 860, a statute which is not spe-
cifically listed in 18 U.S.C. § 3553(f). Id. We stated:

    We first note, and Defendant concedes, that by its
    plain terms § 3553(f) does not apply to § 860 convic-
    tions. Nor does the wording of § 3553(f) support the
    argument that it contains anything other than an
    exhaustive list of the offenses to which the safety
    valve applies. Under the plain terms of § 3553(f), the
    safety valve applies only to convictions under 21
    U.S.C. §§ 841, 844, 846, 960, and 963. Under the
    general rule of statutory construction that the inclu-
    sion of certain provisions in a statute implies the
    exclusion of others § 3553(f) does not apply to con-
    victions under § 860.

Kakatin, 214 F.3d at 1051 (citation omitted) (emphasis
added). Other circuits have also held that the safety valve is
inapplicable to offenses under 21 U.S.C. § 860 because that
statute is not explicitly listed in 18 U.S.C. § 3553(f). See
United States v. Phillips, 382 F.3d 489, 499 (5th Cir. 2004)
14688           UNITED STATES v. GAMBOA-CARDENAS
(holding that the “application of § 3553(f)’s safety valve is
explicitly limited to the following offenses: 21 U.S.C. §§ 841,
844, 846, 960, and 963”); United States v. Koons, 300 F.3d
985, 993 (8th Cir. 2002) (holding that the safety valve does
not apply to 21 U.S.C. § 860 because “Congress specified
particular offenses for which a § 3553(f) reduction may be
considered, and § 860 is not listed as one of them”); United
States v. Anderson, 200 F.3d 1344, 1348 (11th Cir. 2000)
(“The selection of these five statutes reflects an intent to
exclude others . . . .”); United States v. McQuilkin, 78 F.3d
105, 108 (3d Cir. 1996) (“In clear and unambiguous language,
therefore, 18 U.S.C. § 3553(f) does not apply to convictions
under 21 U.S.C. § 860 . . . .”). Like 21 U.S.C. § 860, 46 App.
U.S.C. § 1903 is not specifically listed in 18 U.S.C. § 3553(f)
and we thus hold that the plain statutory text indicates that the
safety valve does not apply to violations of 46 App. U.S.C.
§ 1903.

   To support their position that the plain statutory language
does not lead to this conclusion, appellees rely on the reason-
ing expressed in a recent district court decision, United States
v. Olave-Valencia, 371 F. Supp. 2d 1224 (S.D. Cal. 2005),
which held that the safety valve provision in 18 U.S.C.
§ 3553(f) does apply to convictions under 46 App. U.S.C.
§ 1903. Appellees note that 18 U.S.C. § 3553(f) expressly
states that the safety valve applies to “an offense under . . .
21 U.S.C. 960.” 18 U.S.C. § 3553(f); see Olave-Valencia, 371
F. Supp. 2d at 1229. Appellees also argue that 46 App. U.S.C.
§ 1903, though not specifically listed in 21 U.S.C. § 960, nev-
ertheless constitutes “an offense under . . . 21 U.S.C. 960” for
safety valve purposes because 46 App. U.S.C. § 1903 states
that a defendant who violates the provisions of § 1903 “shall
be punished in accordance with the penalties set forth in [21
U.S.C. § 960].” 46 App. U.S.C. § 1903 (g)(1).5 The district
  5
   As reenacted, the relevant statutory language now states that those con-
victed under the statute “shall be punished as provided in [21 U.S.C.
                 UNITED STATES v. GAMBOA-CARDENAS                    14689
court in Olave-Valencia adopted this argument and found that
the text of § 1903(g)(1) indicates that sentences under § 1903,
just like the punishments under the enumerated statutes in
§ 960, are not only subject to the applicable mandatory mini-
mums of § 960, but are also entitled to safety valve relief
through 18 U.S.C. § 3553(f)’s invocation of § 960. Olave-
Valencia, 371 F. Supp. 2d at 1230.

   [4] This is a misreading of the plain statutory language. The
Olave-Valencia court read 46 App. U.S.C. § 1903(g)(1) as
requiring violations of § 1903 to be treated exactly the same
as violations of the statutes listed in 21 U.S.C. § 960(a). Id.
We do not agree that the text of § 1903(g)(1) supports this
conclusion. As noted above, 46 App. U.S.C. § 1903(g)(1)
states that defendants violating § 1903 “shall be punished in
accordance with the penalties set forth in [21 U.S.C. § 960]”
(emphasis added). The statutory language does not indicate
that violations of § 1903 shall be punished the same as viola-
tions of the statutes listed in 21 U.S.C. § 960(a). Instead,
§ 1903(g)(1) unambiguously invokes the penalties set forth in
21 U.S.C. § 960, not the entire text of § 960. Accordingly, the
relevant inquiry is “What are the penalties set forth in 21
U.S.C. § 960?” The penalties set forth in 21 U.S.C. § 960 are
found in § 960(b) and include explicit references to statutory
minimum sentences. See 21 U.S.C. §§ 960(b)(1), (b)(2).
There is no mention of the safety valve anywhere in § 960.
Accordingly, a punishment in accordance with “the penalties
set forth in [21 U.S.C. § 960]” would incorporate the statutory
minimum,6 but not the safety valve of 18 U.S.C. § 3553(f)

960],” 46 U.S.C. § 70506 (emphasis added), rather than “in accordance
with the penalties set forth in [21 U.S.C. § 960],” 46 App. U.S.C. § 1903
(g)(1). Although we examine the statutory language as originally set forth
in 46 App. U.S.C. § 1903(g)(1), our analysis would be unchanged under
the reenacted statute.
   6
     There is no dispute that without the safety valve, the applicable statu-
tory minimum sentence for all four appellees is ten years, as the district
court recognized at the sentencing hearing. See 21 U.S.C. § 960(b)(1).
14690         UNITED STATES v. GAMBOA-CARDENAS
because the mandatory minimum is “set forth in [21 U.S.C.
§ 960]” and the safety valve is not. 46 App. U.S.C.
§ 1903(g)(1). We thus find that the plain statutory language
indicates that 46 App. U.S.C. § 1903 is not “an offense under
. . . 21 U.S.C. 960,” despite § 1903(g)(1)’s invocation of the
penalties of 21 U.S.C. § 960. Accordingly, we hold that the
safety valve is unavailable to § 1903 offenses.

    2.   History of 46 App. U.S.C. § 1903

   Having determined that the plain statutory language unam-
biguously indicates that the safety valve is inapplicable to
offenses under 46 App. U.S.C. § 1903, we would generally
end our inquiry here. See BedRoc Ltd., LLC v. United States,
541 U.S. 176, 183 (2004) (“Thus, our inquiry begins with the
statutory text, and ends there as well if the text is unambigu-
ous.”). However, we recognize that in the past the government
has acted under the assumption that the safety valve does
apply to § 1903 offenses, and thus has not generally chal-
lenged its availability. See, e.g., United States v. Zakharov,
468 F.3d 1171, 1181 (9th Cir. 2006) (the government argued
that the defendant did not satisfy the elements of § 3553(f),
but it never argued that the safety valve was legally unavail-
able); United States v. Bravo, 489 F.3d 1, 11-12 (1st Cir.
2007) (same). We also recognize that the published district
court order in Olave-Valencia disagrees with our reading of
the plain statutory language and relies heavily on an analysis
of the statutory history of 46 App. U.S.C. § 1903 to determine
that the safety valve is indeed applicable to § 1903 offenses.
Accordingly, we believe it appropriate to examine the history
of the statute as well.

   [5] Despite Olave-Valencia’s conclusion to the contrary,
we find that the history and purpose of 46 App. U.S.C. § 1903
demonstrate that the safety valve does not apply to offenses
committed under this statute. Appellees note that in Olave-
Valencia the district court found that denying safety valve
relief to 46 App. U.S.C. § 1903 offenses would lead to the
              UNITED STATES v. GAMBOA-CARDENAS             14691
illogical result of treating violations of 46 App. U.S.C. § 1903
more severely than violations of 21 U.S.C. § 955. See Olave-
Valencia, 371 F. Supp. 2d at 1232. In its entirety, 21 U.S.C.
§ 955 states:

    It shall be unlawful for any person to bring or pos-
    sess on board any vessel or aircraft, or on board any
    vehicle of a carrier, arriving in or departing from the
    United States or the customs territory of the United
    States, a controlled substance in schedule I or II or
    a narcotic drug in schedule III or IV, unless such
    substance or drug is a part of the cargo entered in the
    manifest or part of the official supplies of the vessel,
    aircraft, or vehicle.

Section 955 is specifically listed in 21 U.S.C. § 960(a)(2), and
thus violations of § 955 trigger § 960’s mandatory minimums,
but they are also protected by the safety valve as “an offense
under . . . 21 U.S.C. 960.” 18 U.S.C. § 3553(f). Adhering to
our plain language reading of § 1903 and § 3553(f) creates a
system in which violations of 21 U.S.C. § 955 receive safety
valve protection, while violations of 46 App. U.S.C. § 1903
do not. Appellees see this as an illogical result at odds with
relevant statutory history and congressional intent. See Olave-
Valencia, 371 F. Supp. 2d at 1232.

   To support their argument, appellees rely on the statutory
history detailed in the published Olave-Valencia district court
decision. In 1922, Congress passed a statute making it “un-
lawful to import or bring any narcotic drug into the United
States or any territory under its control,” including the territo-
rial waters of the United States. Act of May 26, 1922 (“1922
Act”), ch. 202, § 1, 42 Stat. 596 (repealed 1970). Violations
of the 1922 Act brought a ten-year maximum term of impris-
onment. Id. In 1941, Congress passed a statute governing drug
offenses on board United States vessels in international
waters. It stated that “whoever brings [narcotics] on board, or
has [narcotics] in his possession or control on board, any ves-
14692        UNITED STATES v. GAMBOA-CARDENAS
sel of the United States, while engaged on a foreign voyage”
is subject to a five-year maximum sentence. Act of July 11,
1941 (“1941 Act”), ch. 289, § 1, 55 Stat. 584 (initially codi-
fied at 21 U.S.C. § 184a) (repealed 1970). By 1956, drug pos-
session on board vessels within the territorial waters of the
United States was subject to the same penalties as possession
on board a vessel in the high seas. See Olave-Valencia, 371
F. Supp. 2d at 1227 (citing the Narcotic Control Act of 1956,
ch. 629, §§ 105, 108, 70 Stat. 570 (repealed 1970)).

   In 1970, Congress repealed and replaced all existing laws
pertaining to the importation and exportation of narcotics,
including the 1922 Act and the 1941 Act. Comprehensive
Drug Abuse Prevention and Control Act (“Comprehensive
Act”), Pub. L. No. 91-513, 84 Stat. 1292 (1970). As part of
the Comprehensive Act, Congress enacted 21 U.S.C. § 955 as
well as the accompanying penalty provision in 21 U.S.C.
§ 960. See Olave-Valencia, 371 F. Supp. 2d at 1227 (citations
omitted). Title 21 U.S.C. § 955 covers the same offenses orig-
inally governed by the 1922 Act, but the Comprehensive Act
failed to enact a new statute to govern drug possession on the
high seas, offenses which were originally governed by the
1941 Act. Id. Adopting the reasoning of Olave-Valencia, the
appellees contend that Congress filled this statutory void in
1980 by passing 21 U.S.C. § 955a, which was amended and
codified as 46 App. U.S.C. § 1903 in 1986. Id. at 1228 (citing
Act of Sept. 15, 1980, Pub. L. No. 96-350, § 1, 94 Stat. 1159,
1160; Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,
§ 3202, 100 Stat. 3207). Title 46 App. U.S.C. § 1903 states in
relevant part:

    It is unlawful for any person on board a vessel of the
    United States, or on board a vessel subject to the
    jurisdiction of the United States, or who is a citizen
    of the United States or a resident alien of the United
    States on board any vessel, to knowingly or inten-
    tionally manufacture or distribute, or to possess with
              UNITED STATES v. GAMBOA-CARDENAS             14693
    intent to manufacture or distribute, a controlled sub-
    stance.

46 App. U.S.C. § 1903(a). Appellees argue that the difference
between 21 U.S.C. § 955 and 46 App. U.S.C. § 1903 is the
same as the original difference between the 1922 Act and the
1941 Act—§ 955 governs possession in United States waters
and § 1903 governs possession on the high seas. Appellees
thus find it illogical to apply the safety valve to violations of
21 U.S.C. § 955 and not to violations of 46 App. U.S.C.
§ 1903 because such a rule would, for the first time, punish
drug possession in domestic waters more severely than pos-
session in international waters, thereby rewarding those who
elude capture until they almost reach United States soil. See
Olave-Valencia, 371 F. Supp. 2d at 1232.

   We do not agree that 46 App. U.S.C. § 1903 merely consti-
tutes the modern formulation of the 1941 Act. Unlike the
1941 Act, 46 App. U.S.C. § 1903 retains jurisdiction over cer-
tain non-United States vessels in international waters. See 46
App. U.S.C. § 1903(c). Furthermore, 46 App. U.S.C. § 1903
not only applies to offenses committed on the high seas, but
it also covers offenses committed on board United States ves-
sels “within the customs waters of the United States,”
offenses which the 1922 Act (not the 1941 Act) would have
historically covered. 46 App. U.S.C. § 1903(c)(1)(D). Finally,
the 1941 Act governed a different substantive offense than 46
App. U.S.C. § 1903. The 1941 Act governed “possession or
control on board” a United States vessel, while 46 App.
U.S.C. § 1903 governs “possession with intent to manufacture
or distribute.” 46 App. U.S.C. § 1903(a). Therefore, given the
differences between the 1941 Act and § 1903, we conclude
that the relationship between 46 App. U.S.C. § 1903 and 21
U.S.C. § 955 is not analogous to the relationship between the
1941 Act and the 1922 Act.

  [6] Furthermore, appellees (and the Olave-Valencia court)
operate under the erroneous assumption that the principal dif-
14694         UNITED STATES v. GAMBOA-CARDENAS
ference between 21 U.S.C. § 955 and 46 App. U.S.C. § 1903
is geography. The district court in Olave-Valencia incorrectly
found that 21 U.S.C. § 955 only differs from 46 App. U.S.C.
§ 1903 in that § 955 governs the waters of the United States
and § 1903 governs the high seas. See Olave-Valencia, 371 F.
Supp. 2d at 1232. The statutory texts unambiguously demon-
strate that the true difference between 21 U.S.C. § 955 and 46
App. U.S.C. § 1903 lies in the prohibited conduct described
therein. Title 21 U.S.C. § 955 and 46 App. U.S.C. § 1903
govern different substantive offenses. Under 21 U.S.C. § 955,
it is unlawful for someone “to bring or possess on board any
vessel . . . arriving in or departing from the . . . customs terri-
tory of the United States, a controlled substance . . . .” Under
46 App. U.S.C. § 1903(a), “[i]t is unlawful for any person on
board a vessel . . . subject to the jurisdiction of the United
States . . . to possess with intent to manufacture or distribute,
a controlled substance.” Section 955 thus governs mere pos-
session of drugs within the customs waters, while § 1903 gov-
erns possession with intent to manufacture or distribute
aboard any vessel subject to United States jurisdiction, includ-
ing vessels within the customs waters of the United States.
Unlike with § 955, mere possession of drugs on board a vessel
does not implicate 46 App. U.S.C. § 1903, regardless of
where the vessel is located. Instead, a defendant only violates
46 App. U.S.C. § 1903 by possessing drugs on board a vessel
with intent to manufacture or distribute. It is perfectly logical
to apply the safety valve to the lesser offense of possession on
board a vessel, but not to the greater offense of possession on
board a vessel with intent to manufacture or distribute. See
Kakatin, 214 F.3d at 1051 (“It is a basic principle of criminal
justice that those who commit more serious crimes deserve
more serious punishment.”). Therefore, we conclude that the
statutory history supports our holding based on the statutory
language that the safety valve provision of 18 U.S.C.
§ 3553(f) is inapplicable to violations of 46 App. U.S.C.
§ 1903.
                 UNITED STATES v. GAMBOA-CARDENAS                   14695
  B.       The government is estopped from arguing the
           inapplicability of the safety valve as to appellee
           Gamboa-Victoria, but not as to the other appellees.

   Regardless of the legal merits, appellees Gamboa-Victoria
and Barahona-Estupinan contend that the government is
estopped from arguing the legal unavailability of the safety
valve in this case.7 To establish grounds for estoppel against
the government, appellees must first demonstrate that the four
traditional elements of equitable estoppel are met. Those ele-
ments are “(1) the party to be estopped knows the facts, (2)
he or she intends that his or her conduct will be acted on or
must so act that the party invoking estoppel has a right to
believe it is so intended, (3) the party invoking estoppel must
be ignorant of the true facts, and (4) he or she must detrimen-
tally rely on the former’s conduct.” United States v. Hemmen,
51 F.3d 883, 892 (9th Cir. 1995). In addition, a party seeking
to estop the government must establish two additional factors:
(1) “the government has engaged in affirmative misconduct
going beyond mere negligence” and (2) “the government’s act
will cause a serious injustice and the imposition of estoppel
will not unduly harm the public interest.” Pauly v. U.S. Dep’t
of Agric., 348 F.3d 1143, 1149 (9th Cir. 2003) (quotation
marks omitted).

      1.    Appellees Gamboa-Cardenas and Cuero-Aragon

   Appellees Gamboa-Cardenas and Cuero-Aragon did not
raise the estoppel argument in their briefs and thus they have
waived it. See United States v. Nunez, 223 F.3d 956, 958-59
(9th Cir. 2000). Therefore, the government was entitled to
  7
    While appellees Gamboa-Victoria and Barahona-Estupinan use the
term “waiver,” their arguments indicate that they are asking us to apply
the principle of estoppel against the government. Appellees never argue
that the government has waived this argument by not preserving it;
instead, they argue that the government induced appellees to detrimentally
rely on the false promise that the safety valve was legally available, thus
forfeiting the right to now argue the contrary position.
14696           UNITED STATES v. GAMBOA-CARDENAS
argue the unavailability of the safety valve as to these two
appellees.

     2.   Appellee Barahona-Estupinan

   Appellee Barahona-Estupinan urges estoppel against the
government because he waived his right to remain silent by
giving a pre-trial safety valve interview, which waiver the
government wrongly induced by telling him that the safety
valve was available in this case.8 The government claims that
appellee Barahona-Estupinan has waived this argument by
raising it for the first time on appeal. We do not reach the
government’s waiver argument because even assuming that
Barahona-Estupinan’s estoppel argument is properly before
us, we find that it fails on the merits because his safety valve
interview did not constitute detrimental reliance on the gov-
ernment’s promise and thus he cannot establish the necessary
elements for equitable estoppel. See Hemmen, 51 F.3d at 892.

   [7] In his pre-trial safety valve interview, appellee
Barahona-Estupinan repeated the same information he previ-
ously gave to the government during his extensive post-arrest
interview, which pre-dated any governmental assurance that
the safety valve would apply in this case. During his post-
arrest interview, Barahona-Estupinan stated that unknown
men blindfolded him, threatened him, and forced him into a
   8
     Appellees Barahona-Estupinan and Gamboa-Victoria both also claim
that the government acted in bad faith when it changed its position on the
availability of the safety valve after conducting safety valve interviews.
There is insufficient evidence to support a finding of bad faith. Appellees
only point to the fact that the government argued at sentencing that the
safety valve was unavailable, after previously telling appellees that they
could be entitled to safety valve relief. On the other hand, the Presentence
Report independently stated that the safety valve was unavailable to these
offenses. In addition, the government presented well-reasoned legal argu-
ments in writing and at a hearing before the district court to support its
changed interpretation of the law. Accordingly, we find that the govern-
ment did not act in bad faith.
              UNITED STATES v. GAMBOA-CARDENAS           14697
taxi that took him to a small town approximately five hours
away. The following day, he was transported to the location
of the “go-fast” vessel where he met the other appellees. The
unknown men told Barahona-Estupinan that he would be the
captain of the boat. Barahona-Estupinan said that he was
given a radio with programmed frequencies and told to take
the boat along with the other appellees to Costa Rica. He said
that he did not know what they were transporting, but figured
it was cocaine. At the safety valve interview, Barahona-
Estupinan merely reiterated that he did not know the men who
blindfolded him and he stated that he did not know that
cocaine was on board the vessel. He gave no additional infor-
mation to the authorities during the pre-trial safety valve
interview. Appellee Barahona-Estupinan waived his right to
remain silent at the post-arrest interview without any govern-
mental inducement and thus he suffered no detriment by giv-
ing a subsequent safety valve interview in which he merely
repeated the substance of his post-arrest statement. Had
Barahona-Estupinan refused to talk during his safety valve
interview, the government would still have possessed the
same information it presented at trial, and thus Barahona-
Estupinan’s reliance on the government’s promise regarding
the safety valve had no impact on the trial outcome. There-
fore, we find that as a matter of law appellee Barahona-
Estupinan did not detrimentally rely on the government’s
assurance that the safety was available to him. Accordingly,
the government is not estopped from arguing that the safety
valve is unavailable to appellee Barahona-Estupinan. Id.

    3.   Appellee Gamboa-Victoria

   [8] Appellee Gamboa-Victoria presents an additional argu-
ment to support his claim for estoppel against the government.
He argues for estoppel based on his waiver of the right to tes-
tify at trial. Gamboa-Victoria argues that he would have testi-
fied at trial if the government had not assured him that the
safety valve was legally available to him. Unlike with appel-
lee Barahona-Estupinan, appellee Gamboa-Victoria’s reliance
14698           UNITED STATES v. GAMBOA-CARDENAS
went beyond merely restating in his pre-trial safety valve
interview what he had already previously voluntarily told
authorities. Gamboa-Victoria fully cooperated with the
authorities before trial, but he also specifically chose not to
testify at trial because he did not want to jeopardize the gov-
ernment’s previous assurance that his initial pre-trial state-
ment would qualify him for safety valve relief. We thus
conclude that appellee Gamboa-Victoria has established the
necessary elements of equitable estoppel, including detrimen-
tal reliance on the government’s assurance that the safety
valve would apply to him. See Hemmen, 51 F.3d at 892. In
light of the government’s past acquiescence to the application
of the safety valve in § 1903 cases as well as Gamboa-
Victoria’s decision not to testify at trial based on the govern-
ment’s assurance that the safety valve would apply to him, we
find that the government’s abrupt change of position regard-
ing safety valve relief in this case goes beyond “mere negli-
gence” and would cause a “serious injustice” in the case of
Gamboa-Victoria. See Pauly, 348 F.3d at 1149. Imposing
estoppel against the government has no impact on Gamboa-
Victoria’s original sentence and causes no harm to the public
interest. Id. Therefore, we hold that the government is estop-
ped from arguing that the safety valve is inapplicable to
appellee Gamboa-Victoria.9

  9
    We reject the government’s contention that appellee Gamboa-Victoria
failed to raise his estoppel argument based on the theory of detrimental
reliance with the district court. Before the district court, counsel for
Gamboa-Victoria stated that “since the government invited us in to do the
safety valve debriefing then offered a plea agreement that included reduc-
tion of safety valve, they can’t come in now and say it doesn’t apply to
the case.” This sufficiently placed the government and the district court on
notice of Gamboa-Victoria’s argument that his reliance on the govern-
ment’s representations concerning the safety valve should estop the gov-
ernment from changing its position.
              UNITED STATES v. GAMBOA-CARDENAS             14699
  C.   The district court did not err in reducing appellee
       Gamboa-Victoria’s sentence for acceptance of
       responsibility.

   [9] Section 3E1.1 of the sentencing guidelines states, “If a
defendant clearly demonstrates acceptance of responsibility
for his offense,” the district court will apply a two-level
reduction. The adjustment for acceptance of responsibility “is
not intended to apply to a defendant who puts the government
to its burden of proof at trial by denying the essential factual
elements of guilt . . . .” U.S.S.G. § 3E1.1, cmt. n.2. In “rare
situations,” however, a defendant can qualify for this down-
ward adjustment even after going to trial and being convicted.
Id. The district court found that appellees accepted responsi-
bility even though the jury found them guilty. The govern-
ment contends that this was error. Because the safety valve is
unavailable to appellees Gamboa-Cardenas, Cuero-Aragon,
and Barahona-Estupinan, the statutory minimum sentence
applies and on remand the district court cannot grant a reduc-
tion for acceptance of responsibility below the statutory mini-
mum for those appellees. However, with respect to appellee
Gamboa-Victoria, the government is estopped from arguing
that the safety valve is unavailable. Therefore, we must con-
sider whether the district court erred when it granted Gamboa-
Victoria a two-level reduction for acceptance of responsibil-
ity.

   At trial, the government charged appellees with violations
of 46 App. U.S.C. § 1903. According to the district court’s
jury instructions, the essential factual elements of guilt with
respect to this offense are that appellees (1) were on board a
vessel subject to the jurisdiction of the United States, (2)
knowingly possessed cocaine, and (3) possessed it with intent
to deliver it to another person. Neither side challenges the jury
instructions, but the government contends that appellees
denied the “essential factual elements” of the offense by
claiming duress at trial. U.S.S.G. § 3E1.1, cmt. n.2. Thus, the
government argues that appellees did not accept responsibility
14700         UNITED STATES v. GAMBOA-CARDENAS
for their crimes. However, the affirmative defense of duress
does not dispute any of the three essential elements of the
crime charged. To prove duress, appellees had the burden of
showing (1) the existence of an immediate threat of death or
serious bodily injury if they did not participate in the crime,
(2) a well-grounded fear that the threat of death or serious
bodily injury would be carried out, and (3) no reasonable
opportunity to escape the threatened harm. See United States
v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984). By
relying on the defense of duress, appellees did not “deny[ ]
the essential factual elements of guilt.” U.S.S.G. § 3E1.1, cmt.
n.2. Appellees could admit the elements of the offense under
46 App. U.S.C. § 1903 without disqualifying their affirmative
defense of duress at trial. Therefore, we cannot say that the
district court erred when it determined that Gamboa-Victoria
and the other appellees accepted responsibility despite elect-
ing to go to trial. This is especially true given that “the deter-
mination of the sentencing judge [on this issue] is entitled to
great deference on review” since “[t]he sentencing judge is in
a unique position to evaluate a defendant’s acceptance of
responsibility.” U.S.S.G. § 3E1.1, cmt. n.5.

   We are aware of our previous decisions that limit as a mat-
ter of law the availability of a sentencing reduction for accep-
tance of responsibility when a defendant unsuccessfully
presents a defense of duress at trial. However, we find that
those decisions do not preclude a finding that appellee
Gamboa-Victoria accepted responsibility in this case. In
United States v. Johnson, 956 F.2d 894, 904 (9th Cir. 1992),
we held that “the defense of duress is an affirmative defense
which negates criminal conduct by the fact of coercion.”
Because the jury’s guilty verdict demonstrated that it rejected
the defendant’s in-court statements of duress, we held that the
defendants were “not entitled to a reduction for acceptance of
responsibility during the trial.” Johnson, 956 F.2d at 904.
However, in Johnson we also determined that “if in fact the
defendants accepted responsibility by statements made after
the conviction they are entitled to this reduction.” Id. at 905.
              UNITED STATES v. GAMBOA-CARDENAS            14701
In United States v. Martinez-Martinez, 369 F.3d 1076, 1089-
90 (9th Cir. 2004), we noted that in light of a 1992 amend-
ment to the sentencing guidelines commentary, Johnson’s
holding was no longer good law to the extent that a defendant
demonstrated acceptance of responsibility through post-trial
conduct. We stated that “Johnson was decided prior to the
amendments made to the Sentencing Guidelines in 1992, in
which the precise language we relied upon was deleted from
§ 3E1.1(b)” and that “our decision in Johnson is directly at
odds with the amended Commentary to § 3E1.1,” which now
directs that acceptance of responsibility “be based primarily
on pre-trial statements and conduct.” Martinez-Martinez, 369
F.3d at 1090 (citing U.S.S.G. § 3E1.1 cmt. n.2 ). Thus, the
assertion of a duress defense at trial precludes a sentencing
reduction for acceptance of responsibility based on the state-
ments and conduct of a defendant “during the trial,” Johnson,
956 F.2d at 904, and such a reduction is also precluded based
on statements made “during the sentencing phase,” Martinez-
Martinez, 369 F.3d at 1090.

   [10] Appellee Gamboa-Victoria’s situation is distinguish-
able from Johnson and Martinez-Martinez because the district
court granted him a sentencing reduction for acceptance of
responsibility based primarily on pre-trial statements and
conduct. Comment note 2 of U.S.S.G. § 3E1.1 specifically
states that sentence decreases for acceptance of responsibility
are available after trial if such decreases are “based primarily
upon pre-trial statements and conduct” (emphasis added).
Here, the district court applied the downward adjustment
based primarily on pre-trial statements rather than relying
solely on statements made during or after the trial. At sentenc-
ing, the district court stated its grounds for applying the
downward adjustment for acceptance of responsibility to all
four appellees:

    I find that all of the defendants have accepted
    responsibility for their actions in this case. They have
    accepted responsibility at debriefings. They have
14702         UNITED STATES v. GAMBOA-CARDENAS
    accepted responsibility after they were arrested in
    post-arrest statements. They have accepted responsi-
    bility here in court during trial. They have accepted
    responsibility at this time, at the time of sentencing.
    So I adjust downward two levels for acceptance of
    responsibility.

(Emphasis added). Unlike in Johnson and Martinez-Martinez,
appellees made extensive statements before trial in which they
accepted responsibility for their criminal activity. Although
the district court also relied on statements made during trial
and at sentencing, appellees repeated the same information in
those situations that they had already provided in their pre-
trial interviews. The record thus indicates that the district
court relied primarily on statements made before trial when it
applied the reduction for acceptance of responsibility. This is
particularly true with respect to appellee Gamboa-Victoria,
who did not testify at trial and whose post-trial statements
were substantively indistinguishable from the statements he
had already given to the authorities before trial. Because the
district court based its finding of acceptance of responsibility
primarily on pre-trial statements and conduct, it did not vio-
late U.S.S.G. § 3E1.1, comment note 2, or the holdings of
Johnson and Martinez-Martinez when it applied the down-
ward adjustment for acceptance of responsibility.

                      IV.   Conclusion

   We vacate the sentences of appellees Gamboa-Cardenas,
Cuero-Aragon and Barahona-Estupinan, and we remand to the
district court for resentencing without the safety valve. We
affirm the sentence of appellee Gamboa-Victoria.

  AFFIRMED in part; VACATED and REMANDED for
resentencing in part.
                  UNITED STATES v. GAMBOA-CARDENAS                  14703
FISHER, Circuit Judge, concurring in part, dissenting in part:

   I agree with the majority that the government is estopped
from arguing that the safety valve is unavailable to appellee
Gamboa-Victoria. I further agree that the district court did not
err by applying a two-level downward adjustment for accep-
tance of responsibility and I would also affirm Gamboa-
Victoria’s 41 month sentence.

   I respectfully disagree, however, with the majority’s con-
clusion that the safety valve provision of 18 U.S.C. § 3553(f)
unambiguously does not apply to offenses under 46 U.S.C.
app. § 1903 (repealed 2006).1 The majority’s reading of the
relevant statutes is plausible, but it is not the only plausible
reading and this demonstrates that the statutory language is
ambiguous. Section 1903 required “punish[ment] in accor-
dance with the penalties set forth in section . . . 960.”2 Since
1994, all penalties set forth in § 960 are subject to safety
valve relief. One could understand the combination of these
provisions to mean that § 1903 offenses should be penalized
the same as offenses under § 960, which is expressly listed in
the safety valve statute, and thus that the safety valve applies
to § 1903 penalties.

   Section A of the majority opinion underscores the validity
of this other plausible reading, acknowledging that in the past
the government itself has acted under the assumption that the
safety valve does apply to § 1903 offenses and has not gener-
ally challenged its availability. Our court and others have also
assumed, albeit without discussion, that § 1903 offenses are
  1
      Title 46 app. U.S.C. § 1903 has been reenacted in 46 U.S.C. §§ 70501-
07.
  2
    As reenacted, the relevant statutory language states that those con-
victed under the statute “shall be punished as provided in [21 U.S.C.
960],” 46 U.S.C. § 70506 (emphasis added), rather than “in accordance
with the penalties set forth in [21 U.S.C. § 960],” 46 app. U.S.C. § 1903
(g)(1) (emphasis added).
14704           UNITED STATES v. GAMBOA-CARDENAS
eligible for safety valve reductions. See, e.g., United States v.
Zakharov, 468 F.3d 1171, 1181-82 (9th Cir. 2006) (conclud-
ing that the district court had not erred in finding that the
defendant failed on the merits to qualify for a safety valve
reduction); United States v. Milkintas, 470 F.3d 1339, 1344-
46 (11th Cir. 2006) (per curiam) (same). Further, that the
majority’s interpretation of the statutory history differs from
the district court’s interpretation in United States v. Olave-
Valencia, 371 F. Supp. 2d 1224 (S.D. Cal. 2005), also sug-
gests that the statute is ambiguous.3 All of the above cuts
against the majority’s conclusion that the plain statutory lan-
guage unambiguously shows that the safety valve is inapplica-
ble to offenses under § 1903.

   Because I conclude that the statutory language is ambigu-
ous as to whether § 1903 offenses are eligible for safety valve
relief, I would look to the history and purpose of § 1903 to
determine whether the safety valve applies. The combined
effect of Congress’ inadvertent repeal of the drug importing
laws in the Comprehensive Act of 1970 and Congress’ subse-
quent enactment of 21 U.S.C. § 955a, the precursor to § 1903
that states that “any person that commits an offense as defined
in this section shall be punished in accordance with the penal-
ties set forth in section . . . 960,” can be read as requiring that
§ 1903 offenses be punished in the same manner as offenses
under § 960. No statutory language or legislative history com-
pels a conclusion that when Congress created a safety valve
under § 3553(f) that applied to offenses under § 960 it
intended § 3553(f) to create a disparity between the effect of
penalties for § 955 offenders and § 1903 offenders with simi-
  3
    The majority’s conclusion that applying the safety valve reductions to
violations of 21 U.S.C. § 955 but not to §1903 offenses is “perfectly logi-
cal” does not account for offenses analogous to § 1903 that are expressly
eligible for safety valve reductions notwithstanding they go beyond mere
possession. See 21 U.S.C. §§ 952, 953 and 957 (knowingly or intention-
ally importing or exporting a controlled substance), and § 959 (manufac-
turing, possessing with intent to distribute or distributing a controlled
substance).
              UNITED STATES v. GAMBOA-CARDENAS            14705
lar characteristics. Rather, like the government until recently,
I believe the most plausible reading of the relevant statutes is
that § 1903 offenses should be penalized in the same manner
as offenses under § 960, which is expressly listed in the safety
valve provision. Accepting that the safety valve applies to
offenses under § 1903, I would affirm the sentences of appel-
lees Gamboa-Cardenas, Cuero-Aragon and Barahona-
Estupinan as well as that of appellee Gamboa-Victoria.
