                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

 UNITED STATES OF AMERICA,

                         v.
                                                             Criminal Action No. 13-cr-134
 ALFREDO MOSQUERA-MURILLO,
 JOAQUIN CHANG-RENDON, and                                   Judge Beryl A. Howell
 ANTONIO MORENO-MEMBACHE,

                         Defendants.

                                  MEMORANDUM OPINION

       On January 20, 2016, each of the defendants entered into a wired plea agreement under

which they pleaded guilty to a one-count indictment of conspiring to distribute, and possess with

intent to distribute, at least five kilograms of cocaine and 100 kilograms of marijuana on board a

vessel subject to the jurisdiction of the United States, in violation of the Maritime Drug Law

Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503(a) and 70506(b). See Plea Agreements, ECF

Nos. 185, 188, 191. Based on the quantity of drugs involved in the charged conspiracy, the

defendants’ offense under the MLDEA carries a mandatory-minimum sentence of ten years of

incarceration, see 46 U.S.C. § 70506(a); 21 U.S.C. § 960(b)(1)(B), and the parties have

recommended, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), a sentence at this

statutory minimum for each of the defendants, see Plea Agreements ¶ 6. In so doing, however,

the defendants have retained their right to argue that they are eligible for relief from this

mandatory-minimum under the “safety-valve” provision of the Mandatory Minimum Sentencing

Reform Act of 1994, 18 U.S.C. § 3553(f). The government contends that the defendants are not

eligible for such safety-valve relief because § 3553(f) does not apply to convictions under the

MDLEA. Upon consideration of the parties’ thorough submissions on this issue, and for the



                                                  1
following reasons, the Court concludes that safety-valve relief is unavailable for defendants

convicted under the substantive and conspiracy provisions of the MDLEA.

I.     BACKGROUND

       The relevant factual background underlying the defendants’ convictions is summarized in

detail in this Court’s prior opinion resolving the parties’ various pretrial motions in this matter.

See United States v. Mosquera-Murillo, No. 13-CR-134, 2015 WL 9907796, at *2–4 (D.D.C.

Dec. 14, 2015). After resolution of these motions, the defendants each agreed to plead guilty to a

single count of conspiring to violate the MDLEA in connection with their participation in an

effort to transport at least five kilograms of cocaine and 100 kilograms of marijuana aboard a go-

fast vessel that was interdicted by the U.S. Coast Guard on June 19, 2012. See Minute Entry,

dated Jan. 20, 2016. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the

defendants’ plea agreements recommend imposition of a sentence of ten years imprisonment, see

id., which is the mandatory-minimum sentence applicable to the defendants’ offense of

conviction, see 46 U.S.C. § 70506(a); 21 U.S.C. § 960(b)(1)(B). Nonetheless, the plea

agreements further provide that the defendants are each permitted to attempt to demonstrate their

eligibility for a sentence below this otherwise applicable statutory minimum based on the factual

criteria set out at 18 U.S.C. § 3553(f) (the “safety-valve provision”). Plea Agreements ¶ 9.

       The defendants are scheduled to be sentenced on May 13, 2016. Notice of Rescheduled

Hearing, dated Feb. 23, 2016. The parties proposed, and the Court granted, a bifurcated briefing

schedule under which the Court would determine, first, whether defendants convicted under the

MDLEA are legally eligible for safety-valve relief, before the filing of sentencing memoranda in

connection with the defendants’ scheduled sentencings. See Consent Mot. Bifurcate Sentencing




                                                  2
Hearing, ECF No. 195; Minute Order, dated Feb. 16, 2016. 1 Consistent with the parties’

proposed briefing schedule, this preliminary legal issue is now ripe for consideration.

II.      DISCUSSION

         While the question whether a defendant subject to a mandatory-minimum sentence due to

a conviction under the MDLEA is eligible for relief under the safety-valve provision of 18

U.S.C. § 3553(f) is an issue of first impression in this Circuit, the Court does not write on an

entirely blank slate. Indeed, arguing that safety-valve relief is not available to MDLEA

defendants, the government notes that both circuits to have considered the issue concluded that

such defendants are categorically precluded from seeking such relief. Gov’t Sub. on App. of

Safety Valve to MDLEA (“Gov’t Mem.”) at 3 (citing United States v. Pertuz-Pertuz, 679 F.3d

1327, 1329 (11th Cir. 2012) (per curiam); United States v. Gamboa-Cardenas, 508 F.3d 491, 496

(9th Cir. 2007)), ECF No. 196.

         Consistent with the reasoning adopted by these circuits, the government argues that both

the plain language of the safety-valve provision and the legislative history accompanying its

enactment confirm that safety-valve relief is unavailable to MDLEA defendants. See generally

id. In response, the defendants contend that the “text, history, and purpose” of the safety-valve

provision demonstrate their eligibility for a sentence below the statutory minimum and that any

ambiguity in the language of the provision should be resolved in favor of granting such relief.

Mem. Supp. Def. Chang-Rendon’s Legal Eligibility for Safety-Valve Relief (“Chang-Rendon




1
         In connection with their proposed briefing schedule, the parties requested an oral hearing on the issue of the
applicability of the safety-valve provision to convictions under the MDLEA. Consent Mot. Bifurcate Sentencing
Hearing at 3. Given the sufficiency of the parties’ written submissions, however, such a hearing would be
unnecessary and duplicative, and the parties request for such a hearing is therefore denied. See LCvR 7(f) (stating
allowance of oral hearing is “within the discretion of the court”).

                                                          3
Mem.”) at 1, ECF No. 197.2 Following a summary of the statutory framework underlying the

present dispute, the parties’ arguments are considered below.

         A.       Relevant Statutory Framework

         The safety-valve provision permits a district court to impose a sentence below the

statutory mandatory-minimum where a defendant convicted of an offense under certain federal

criminal offenses meets five enumerated criteria. 3 The statute sets out the specific offenses of

conviction to which the safety-valve is available, providing, in pertinent part, that:

         Notwithstanding any other provision of law, in the case of an offense under section
         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 . . . without regard to any
         statutory minimum sentence . . . .

18 U.S.C. § 3553(f).

         Congress passed the safety-valve provision to provide sentencing relief for low-level

offenders who, because of their relatively limited role in the offenses for which they were

convicted, were often unable to provide the level of substantial assistance necessary to qualify

for a departure below an applicable mandatory-minimum sentence. As the D.C. Circuit has


2
          Defendants Moreno-Membache and Mosquera-Murillo each have adopted the opening memorandum
submitted by their co-defendant. See Minute Orders, dated Feb. 29, 2016, March 3, 2016. Since the legal question
of the applicability of the safety-valve provision to offenses under the MDLEA does not turn on the particular
circumstances of an individual MLDEA offense, the discussion that follows addresses the defendants’ legal
eligibility for safety-valve relief without regard to any potential factual distinctions between the defendants’
respective roles in the charged conspiracy.
3
          The five pre-requisites for application of the safety-valve to defendants otherwise eligible due to their
offense of conviction are: “(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). This language has been incorporated verbatim
into the U.S. Sentencing Guidelines. See U.S.S.G. § 5C1.2.

                                                          4
explained, “[p]rior to enactment of the safety valve provision, ‘defendants convicted of certain

drug crimes could receive a sentence below the statutory minimum only on the Government’s

motion to depart downward based on a defendant’s substantial assistance to the authorities.’

Congress enacted the safety valve provision in order to provide similar sentencing relief to lower

level offenders who were willing to cooperate with the government but did not possess

information of substantial assistance.” United States v. Gales, 603 F.3d 49, 52 (D.C. Cir. 2010)

(quoting United States v. Shrestha, 86 F.3d 935, 938 (9th Cir. 1996)).

       In this case, each defendant stands convicted of conspiring to violate the MDLEA, which

generally prohibits narcotics trafficking on the high seas. Specifically, the MDLEA prohibits

knowingly or intentionally “manufactur[ing] or distribut[ing], or possess[ing] with intent to

manufacture or distribute, a controlled substance” on board a “vessel of the United States or a

vessel subject to the jurisdiction of the United States,” or “any vessel if the individual is a citizen

of the United States or a resident alien of the United States.” 46 U.S.C. § 70503(a). While the

MDLEA thus identifies the conduct prohibited under the statute, the MDLEA itself does not

specify a penalty for violating its substantive terms. Instead, the MDLEA provides that

individuals who violate, or attempt or conspire to violate, the MDLEA “shall be punished as

provided in section 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970

(21 U.S.C. 960).” 46 U.S.C. §§ 70506(a), (b).

       In relevant part, 21 U.S.C. § 960 provides statutory penalties for a variety of offenses

associated with the import and export of controlled substances. This general penalty provision

follows a bipartite structure. First, subsection (a) provides:

       Any person who—

       (1) contrary to section 825, 952, 953, or 957 of this title, knowingly or intentionally
       imports or exports a controlled substance,

                                                   5
         (2) contrary to section 955 of this title, knowingly or intentionally brings or
         possesses on board a vessel, aircraft, or vehicle a controlled substance, or

         (3) contrary to section 959 of this title, manufactures, possesses with intent to
         distribute, or distributes a controlled substance,

         shall be punished as provided in subsection (b) of this section.

21 U.S.C. § 960(a). Next, subsection (b) sets out a series of escalating penalties based on the

kind and quantity of drugs involved in the predicate offense. Id. § 960(b). As relevant here, for

larger quantities of illicit drugs, this subsection provides for a mandatory-minimum sentence of

five or ten years. Id. § 960(b)(1), (2). Under these subsections, due to the quantity of narcotics

the government is prepared to prove the defendants could have reasonably foreseen to have been

involved in the charged conspiracy, namely, 450 kilograms of cocaine and 100 kilograms of

marijuana, see Joint Statements of Fact ¶ 7, ECF Nos. 186, 189; Joint Statement of Stipulated

Facts ¶ 6, ECF No. 192, and absent relief under the safety-valve provision, each defendant agrees

that he faces a mandatory-minimum statutory penalty of ten years imprisonment, see Plea

Agreements ¶ 4. Should the defendants qualify, both legally and factually, for safety-valve

relief, however, the Court may sentence the defendants to a term of imprisonment below this

mandatory-minimum. Chang-Rendon Mem. at 2.4




4
          The parties have indicated that, should the Court rule that the safety-valve applies to MDLEA offenses,
they “anticipate devoting substantial time to developing their presentations regarding whether the [d]efendants are
eligible for relief under the Safety Valve as a factual matter.” Consent Mot. Bifurcate Sentencing Hearing at 2. In
particular, “the [g]overnment would likely call numerous witnesses, including some who would travel from
Colombia, to testify about the [d]efendants’ alleged conduct in the charged conspiracy and other conspiracies.” Id.
Given the substantial resources such an effort likely would demand, the Court granted the parties’ request to resolve
the threshold question of the defendants’ legal eligibility for safety-valve relief before considering whether the
defendants meet each of the factual criteria identified in 18 U.S.C. § 3553(f), see supra note 3. See Minute Order,
dated Feb. 16, 2016.

                                                          6
       B.      Defendants Convicted under the MLDEA are not Eligible for Safety-Valve
               Relief under 18 U.S.C. § 3553(f)

       Under the statutory framework described above, the present dispute boils down to a

relatively narrow question of statutory interpretation. By its terms, the safety-valve provision

allows for a below-minimum sentence only “in the case of an offense under” certain enumerated

federal drug crimes. Based upon the clear text in 18 U.S.C. § 3553(f), these enumerated

statutes21 U.S.C. §§ 841, 844, 846, 960 and 963have been interpreted to be an exhaustive

list. See, e.g., United States v. Phillips, 382 F.3d 489, 499 (5th Cir. 2004); United States v.

Koons, 300 F.3d 985, 993 (8th Cir. 2002); United States v. Anderson, 200 F.3d 1344, 1348 (11th

Cir. 2000); United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir. 1996). On its face, the safety-

valve provision therefore provides no relief to defendants convicted under the MDLEA, which is

codified at 46 U.S.C. §§ 70501–70508 and does not appear among the eligible statutes.

       This apparent exclusion notwithstanding, however, the defendants contend that

individuals who, like them, are convicted under MDLEA are eligible for safety-valve sentencing

relief under § 3553(f) on the theory that, because violations of the MDLEA are punished in

accordance with the penalties set out in 21 U.S.C. § 960(b), an offense under the MDLEA

qualifies as an “offense under . . . § 960.” 18 U.S.C. § 3553(f). Consequently, to determine

whether the defendants are eligible for safety-valve relief, the Court must consider whether a

conviction under the MDLEA qualifies as an “offense under” 21 U.S.C. § 960 within the

meaning of § 3553(f). Chang-Rendon Mem. at 5; Gov’t Mem. at 2.

       While the D.C. Circuit has not had occasion to consider the defendants’ proposed

construction of this statutory phrase, the parties agree that those circuits that have considered the

issue have uniformly held that safety-valve relief is precluded for defendants convicted under the

MDLEA. Gov’t Mem. at 3; Chang-Rendon Mem. at 7. The defendants strongly critique the

                                                  7
reasoning of those opinions, however, to contend that the “text, statutory history, and purpose of”

the relevant statutory provisions make clear that Congress intended MDLEA defendants to be

eligible for safety-valve relief.

        To resolve this dispute, the Court’s task of construing the relevant statutory provisions

must begin with the “statutory text itself.” United States v. Cano-Flores, 796 F.3d 83, 91 (D.C.

Cir. 2015). Accordingly, the discussion that follows considers, first, the defendants’ argument

that the plain language of both the safety-valve provision and the MDLEA itself suggest that

Congress intended for qualifying MDLEA defendants to be eligible for a below-minimum

sentence under the safety-valve provision. Following this statutory analysis, the defendants’

contentions that construction of the safety-valve provision to preclude relief in MDLEA cases

would lead to “glaringly absurd” results and would otherwise be in conflict with the Supreme

Court’s recent holding in Alleyne v. United States, 133 S. Ct. 2151 (2013), are each considered in

turn.

                1.      The Plain Language of 18 U.S.C. § 3553(f) Precludes Safety-Valve
                        Relief for MDLEA Defendants

        The defendants argue first that the plain language of both the safety-valve provision and

the MDLEA points to safety-valve eligibility for MDLEA defendants. Specifically, the

defendants contend that the phrase “an offense under . . . § 960” must be interpreted to

encompass those offenses “subject to” or “governed by” § 960. Chang-Rendon Mem. at 5.

Likewise, construing the MDLEA’s penalty provision, the defendants suggest that punishments for

violations of the MDLEA must be “the same as” those imposed under § 960, which necessarily

includes potential safety-valve relief. Id. at 6 (emphasis in original).

        To assess the defendants’ proposed construction of these provisions, the Court must

consider first whether the “language at issue has a plain and unambiguous meaning with regard


                                                    8
to the particular dispute in [this] case.” United States v. Villanueva–Sotelo, 515 F.3d 1234, 1237

(D.C. Cir. 2008) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). If such an

unambiguous meaning is apparent, the court’s “inquiry ends and [the court must] apply the

statute’s plain language.” Id. (internal quotations and citations omitted); see also United States

v. Cordova, 806 F.3d 1085, 1099 (D.C. Cir. 2015) (“In determining the ‘plainness or ambiguity

of statutory language’ we refer to ‘the language itself, the specific context in which that language

is used, and the broader context of the statute as a whole.’” (quoting United States v. Wilson, 290

F.3d 347, 353 (D.C. Cir. 2002))). Where, however, “the statutory language is ambiguous, [the

court must] look beyond the text for other indicia of congressional intent.” Villanueva–Sotelo,

515 F.3d at 1237 (citing Staples v. United States, 511 U.S. 600, 605 (1994)). In so doing, the

Court is mindful that “[t]he rule of lenity prevents the interpretation of a federal criminal statute

‘so as to increase the penalty that it places on an individual when such an interpretation can be

based on no more than a guess as to what Congress intended.’” United States v. Burwell, 690

F.3d 500, 515 (D.C. Cir. 2012) (quoting Villanueva–Sotelo, 515 F.3d at 1246). Nonetheless,

“‘[t]he simple existence of some statutory ambiguity . . . is not sufficient to warrant application

of that rule, for most statutes are ambiguous to some degree.’” Burwell, 690 F.3d at 515 (ellipsis

in original) (quoting Muscarello v. United States, 524 U.S. 125, 139 (1998)). Accordingly, “to

invoke the rule of lenity, a court must conclude that ‘there is a grievous ambiguity or uncertainty

in the statute.’” Id. (emphasis in original).

       Turning first to the defendants’ construction of the language of the safety-valve provision

itself, the defendants contend that, by affording safety-valve relief “in the case of an offense

under . . . § 960,” Congress intended to provide such relief to defendants convicted of any

offense punished in accordance with the mandatory-minimum penalties set out in § 960(b). In



                                                  9
support of their preferred interpretation, the defendants rely principally on the Supreme Court’s

construction of similar language appearing in a separate, unrelated statute in Ardestani v. I.N.S.,

502 U.S. 129, 135 (1991). Id. The Court’s analysis in that case, however, provides scant support

for the defendants’ proposed construction of the language at issue here.

       Ardestani addressed the availability of attorneys’ fees under the Equal Access to Justice

Act (“EAJA”) for prevailing parties in administrative deportation proceedings brought by the

Immigration and Naturalization Service. 502 U.S. at 131. The EAJA provides for fee-shifting

for prevailing parties in “adversary adjudications” before a federal agency, with the statute

defining such proceedings as “an adjudication under section 554 of [the APA] in which the

position of the United States is represented by counsel or otherwise.” Id. at 132 (citing 5 U.S.C.

§ 504(b)(1)(C)(i)). Though the deportation proceedings at issue in Ardestani were, by statute,

explicitly exempted from the APA, id. at 133, the plaintiff argued that these proceedings were

sufficiently similar to APA adjudications to conclude that Congress intended these proceedings

to qualify as adjudications “under section 554 of [the APA],” id. at 134–35 (explaining that the

plaintiff argued that “the phrase ‘under section 554’ encompasses all adjudications ‘as defined

in’ § 554(a), even if they are not governed by the procedural provisions established in the

remainder of that section”).

       The Supreme Court disagreed. Instead, concluding that the meaning of “an adjudication

under section 554” was unambiguous in the context of the EAJA, the Court noted that the word

“‘under’ has many dictionary definitions and must draw its meaning from its context.” Id. at

135. In the context of the EAJA, the Ardestani Court observed that the “most natural reading of .

. . ‘under section 554’ is that those proceedings must be ‘subject to’ or ‘governed by’ § 554.” Id.

Under this meaning, because the deportation proceedings at issue were not subject to or



                                                 10
governed by the APA, the Court held that these proceedings did not fall within the category of

proceedings for which the EAJA waived sovereign immunity and authorized fee-shifting. Id. at

138. Reading Ardestani to hold merely that the “phrase ‘under’ a statutory section means

‘governed by’ or ‘subject to’ that statutory section,” the defendant’s contend that the defendants’

convictions under the MDLEA are plainly governed by the mandatory-minimum penalty

imposed under § 960. Chang-Rendon Mem. at 5.

       As the foregoing summary suggests, however, the defendants’ reliance on the Supreme

Court’s interpretation of the word “under” in Ardestani is misplaced. First, such a reading

ignores the Ardestani Court’s admonition that the word “under” is amenable to many meanings

and must therefore be interpreted in the context in which it appears. Ardestani, 502 U.S. at 135.

Such a contextual analysis is inconsistent with the defendants’ present suggestion that Ardestani

provides a fixed definition of the word “under” regardless of the particular statute or provision

the Court is attempting to construe. Chang-Rendon Mem. at 5. In this sense, while Ardestani

may provide guidance as to the interpretation of the word “under” in the context of a civil fee-

shifting provision, the Court’s analysis provides little clear guidance regarding the meaning of

this word in the very different context of a criminal sentencing statute. Moreover, the Ardestani

Court’s holding that deportation proceedings, though demonstrating certain key similarities to

APA adjudications, are not subject to fee-shifting under the EAJA is difficult to square with the

defendants’ current request for safety-valve relief. Just as the proceedings at issue in Ardestani

were functionally similar to APA adjudications, the defendants’ convictions under the MDLEA

are subject to the same punishment as the statutes listed in § 960(a). Thus, instead of suggesting

that “under” must be interpreted consistently across differing statutory regimes, Ardestani

provides some support for the conclusion that, notwithstanding the obvious similarities between



                                                11
punishments meted out for MDLEA offenses and those offenses specifically enumerated under §

960(a), MDLEA offenses need not qualify as cases “under . . . § 960.”

        Likewise, the defendants’ contention that the safety-valve provision must be interpreted

to encompass those offenses punished in accordance with § 960(b) is similarly unpersuasive.

Arguing that the MDLEA qualifies as an offense “under . . . § 960,” the defendants note that,

unlike the other statutes listed under the safety-valve provision, i.e., 21 U.S.C. §§ 841, 844, 846,

and 963, § 960 does not itself define an offense subject to a mandatory minimum. Chang-

Rendon Mem. at 5. Since § 960 does not itself define a federal crime, but instead merely sets out

the punishment for violating other federal crimes elsewhere defined, the defendants suggest that

the only “coherent” reading of the phrase “an offense under . . . § 960” is “an offense for which

subsection (b) of § 960 sets out the applicable punishment.” Id. Thus, because the penalties for

violating the substantive and conspiracy provisions of the MDLEA are found in § 960(b), the

defendants assert that the MDLEA clearly qualifies as an “offense under” § 960 to which the

safety-valve indisputably applies.

        At first blush, this argument appears to have some merit, but the Ninth Circuit’s

discussion of this precise issue in United States v. Gamboa-Cardenas, 508 F.3d 491 (9th Cir.

2007), is particularly instructive. 5 In that case, despite the defendants’ suggestion to the

contrary, Def.’s Mem. at 7, the court explicitly acknowledged that “§ 960 does not describe an

offense itself, but rather prescribes the penalty for a number of drug offenses prohibited by other

statutes.” Id. at 497 (emphasis in original). Reviewing the text of § 3553(f), however, the Ninth

Circuit concluded that the statute’s “reference to ‘an offense under . . . 21 U.S.C. § 960’ invokes



5
          The Ninth Circuit considered the applicability of the safety-valve provision to the MLDEA’s predecessor
statute, which was subsequently reenacted without relevant changes and has since been codified as it currently
appears in Title 46. United States v. Gamboa-Cardenas, 508 F.3d 491, 507 n.1 (9th Cir. 2007).

                                                        12
only the statutes listed in 21 U.S.C. § 960(a), and thus the safety valve . . . applies to offenses

committed in violation of 21 U.S.C. §§ 952, 953, 955, 957 and 959.” Id. Since these statues are

explicitly listed in § 960(a), the Ninth Circuit reasoned, they are properly regarded as offenses

“under . . . § 960.” Id. Further, because the MDLEA was enacted nearly a decade before

Congress passed the safety-valve provision, the Gamboa-Cardenas Court presumed that the

failure to explicitly include the MDLEA among the statutes to which the safety-valve applies

manifests Congress’s intent to exclude safety-valve relief for MDLEA defendants. Id. 497–98

(“Congress could have included [the MDLEA] 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 [MDLEA] offenses on the safety valve list.”).

         The Eleventh Circuit has agreed with the reasoning of the Ninth Circuit. In United States

v. Pertuz-Pertuz, 679 F.3d 1327, 1329 (11th Cir. 2012) (per curiam), the court held that

“[a]lthough 46 U.S.C. § 70506(a) references section 960 as the penalty provision for violations

of 46 U.S.C. § 70503, section 960 does not incorporate section 70503 by reference as an ‘offense

under’ section 960.” Thus, the Eleventh Circuit held that the “plain text of the statutes shows

that convictions under Title 46 of the U.S. Code . . . entitle a defendant to no safety-valve

sentencing relief.” Id.; see also United States v. Morales, 535 F. App’x 781, 782 (11th Cir.

2013).

         These out-of-circuit decisions notwithstanding, the defendants seek to bolster their

proposed interpretation by arguing that the plain language of the MDLEA itself confirms that

qualifying defendants convicted of offenses arising under that statute should, like their

counterparts convicted of other offenses subject to mandatory minimums set out under § 960(b),

be eligible for safety-valve relief. According to the defendants, because the MDLEA’s penalty



                                                  13
provision states that offenses under the statute must be “punished as provided in section . . .

960,” Congress “mandated that punishments for violations under [the MDLEA] must be the

same as punishments set out by § 960.” Chang-Rendon Mem. at 6 (emphasis in original). Since

defendants convicted under one of the statutes listed in § 960(a) are entitled to safety-valve

relief, the defendants argue, treating MDLEA defendants “the same as” those convicted under

one of these listed statutes requires “punishment doled out for drug trafficking on the high seas . .

. to include safety-valve eligibility as well.” Id. at 7. While recognizing that both the Gamboa-

Cardenas and Pertuz-Pertuz Courts specifically rejected this interpretation of the MDLEA, the

defendants note that at least one district judge, as well as a concurring judge on the Gamboa-

Cardenas panel adopted this construction of the statute. Id. (citing United States v. Olave-

Valencia, 371 F. Supp. 2d 1224, 1227 (S.D. Cal. 2005); Gamboa-Cardenas, 508 F.3d at 506–08

(Fisher, J., concurring in part and dissenting in part)). Confronted with these differing statutory

interpretations, the defendants urge this Court to join these latter judges in concluding that the

MDLEA evinces clear Congressional intent to afford MDLEA defendants an opportunity to

obtain safety-valve relief.

       Review of these authorities does not disturb the Court’s view that the plain language of

the MDLEA and 18 U.S.C. § 3553(f) unambiguously foreclose safety-valve relief for defendants

convicted under the substantive or conspiracy provision of MDLEA. As an initial matter, though

the defendants ask this Court to follow the district court’s holding in Olave-Valencia, 371 F.

Supp. 2d 1224, the Ninth Circuit specifically rejected that holding in Gamboa-Cardenas, 508

F.3d at 501–02. In so doing, the Gamboa-Cardenas Court explained that the lower court’s

reasoning rested on a misinterpretation of the distinction between the MDLEA and a similar




                                                 14
statute prohibiting possession of narcotics in U.S. customs waters. Id. 6 Further, while the

concurring opinion in Gamboa-Cardenas concluded that the “most plausible” reading of the

relevant provisions would permit MDLEA defendants to seek safety valve relief, this conclusion

was predicated on the finding, contrary to the majority holding and the view of this Court, that

the “statutory language is ambiguous as to whether [MDLEA] offenses are eligible for safety

valve relief.” Gamboa-Cardenas, 508 F.3d at 506–08 (Fisher, J., concurring in part and

dissenting in part)).

        In sum, the plain language of the MDLEA and the safety-valve provision are not so

ambiguous as to allow for an interpretation under which the MLDEA constitutes an “offense

under . . . § 960.” Even assuming arguendo that the interpretation urged by the defendants is

plausible based on the statutory text alone, however, the legislative history accompanying the

enactment of the relevant generally supports the conclusion reached here, consistent with the

holdings of both the Ninth and Eleventh Circuits, that safety-valve relief is precluded in this

case. The most salient aspects of this legislative history are addressed below.

                 2.       Relevant Legislative History Further Evidences Congressional Intent to
                          Preclude Safety-Valve Relief for MDLEA Offenses

        For nearly a century, Congress has sought to combat the importation of illicit drugs by

subjecting drug traffickers, whose activities on the high seas bring them within the jurisdiction of

the United States, to stringent criminal penalties. First, in 1922, Congress prohibited domestic

trafficking of illicit drugs by making it “unlawful to import or bring any narcotic drug into the

United States or any territory under its control.” Gamboa-Cardenas, 508 F.3d at 500 (citing Act

of May 26, 1922, ch. 202, § 1, 42 Stat. 596 (repealed 1970)). Some twenty years later, in 1941,



6
         The overlapping and somewhat confused legislative history associated with the passage of these statutes is
described in greater detail below, infra Part II.B.2.

                                                        15
Congress expanded this prohibition to include possession, on a vessel subject to United States

jurisdiction, of illegal drugs on the high seas. Id. (citing Act of July 11, 1941 (“1941 Act”), ch.

289, § 1, 55 Stat. 584 (initially codified at 21 U.S.C. § 184a) (repealed 1970)). As originally

enacted, these statutes provided for harsher maximum penalties for defendants convicted of

importation than those possessing narcotics in international waters. Id. “By 1956, [however,]

drug possession 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.” Id. (citing Olave-

Valencia, 371 F. Supp. 2d at 1227).

       In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act

(“Comprehensive Act”), Pub. L. No. 91-513, 84 Stat. 1292 (1970), with the goal of streamlining

existing laws pertaining to the importation or exportation of illicit drugs. Id. To do so, Congress

repealed and replaced nearly all criminal statutes targeting international drug trafficking. Id. As

a part of this comprehensive legislation, Congress enacted 21 U.S.C. § 955, which covers the

same offenses previously proscribed under the original 1922 statute. Id.; see 21 U.S.C. § 955

(generally prohibiting “bring[ing] or possess[ing] 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”). Also included in this omnibus legislation was § 960,

which provided for a common set of penalties for a number of the substantive offenses newly

reenacted through the Comprehensive Act. Among these offenses, which are enumerated in

§ 960(a), is § 955. Nonetheless, while the 1941 statute criminalizing conduct on the high seas

was repealed in the Comprehensive Act, see Comprehensive Act, Title III, § 1101(a)(2), (9), 84

Stat. 1292, missing from the 1970 statute was any provision reinstating the previous prohibition

on drug possession on the high seas, id. at 500–01.



                                                 16
       Recognizing its oversight, see Olave-Valencia, 371 F. Supp. 2d at 1231 & n.7 (citing S.

Rep. No. 96-855 (1980); H.R. Rep. No. 96-323, at 4–5 (1979)), Congress passed the original

version of the MDLEA in 1980. See Gamboa-Cardenas, 508 F.3d at 501 (explaining that the

1980 statute was later amended to reflect its current form in 1986 (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)). While the MDLEA was apparently intended to fill the gap left open in

1970 following passage of the Comprehensive Act, the newly enacted MDLEA went further than

the original 1941 statute. In particular, the MDLEA “not only applies to offenses committed on

the high seas, but it also covers offenses committed on board United States vessels ‘within the

customs waters of the United States,’ offenses which the 1922 Act (not the 1941 Act) would

have historically covered.” Id. at 501. Likewise, importantly, while the original 1941 statute

governed “‘possession or control on board’ a United States vessel,” the MDLEA “governs

‘possession with intent to manufacture or distribute.’” Id. (quoting the relevant statutory

language). Thus, while the MDLEA applies to conduct on a broader universe of vessels than the

1941 statute, i.e., both to vessels on the high seas subject to United States jurisdiction and to all

vessels in jurisdictional waters, the current statute proscribes a narrower set of conduct aboard

those vessels.

       Reviewing this legislative history, the defendants argue that the enactment of the

MDLEA evinces “Congress’s intent to punish drug trafficking on the high seas in lockstep with

drug trafficking in United States waters.” Chang-Rendon Mem. at 11. Specifically, the

defendants contend that, following the inadvertent exclusion of a replacement for the 1941

statute, Congress enacted the original version of the MDLEA with the intention of “return[ing] to

its policy of sentencing parity” between drug crimes committed in United States territorial waters



                                                  17
and similar crimes committed on the high seas. Id. at 12. According to the defendants, aware

that offenses under the 1922 and 1941 statutes were previously subject to the same penalties,

Congress sought to ensure that offenses under the new MDLEA would be penalized identically

to those under the new § 955 by providing that offenses under the MDLEA would be punished

“as provided in” § 960. Id. at 11–13. Thereafter, the defendants identify no Congressional intent

to treat these offenses differently upon either enacting the mandatory-minimum penalties in

§ 960(b) or later providing relief from these penalties under the safety-valve provision. Id. at

13–15 (likening Congressional silence on this front to the “dog that did not bark” (internal

quotations omitted) (citing Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991))).

       As previously discussed, however, by passing the MDLEA, Congress did not merely

reenact provisions of the 1941 statute repealed by the 1970 Comprehensive Act. Instead, the

MDLEA altered both the jurisdictional reach of the prior statute and the conduct prohibited

under federal law. These significant substantive changes to the terms of the prior statute largely

undermine any inference that Congress intended to subject defendants convicted under the

MDLEA to the same penalties as their counterparts convicted under § 955. On the contrary, as

the Ninth Circuit observed, “[i]t is perfectly logical to apply the safety valve to the lesser offense

of possession on board a vessel [under § 955], but not to the greater offense of possession on

board a vessel with intent to manufacture or distribute [under the MDLEA].” Gamboa-

Cardenas, 508 F.3d at 502.

       Indeed, the defendants’ present contention that Congress intended to provide safety-valve

relief to qualifying MDLEA defendants is further undermined by Congress’s subsequent efforts

to clarify the scope of safety-valve relief under § 960. Two years after adopting the safety-valve

provision, Congress amended 18 U.S.C. § 3553(f) to correct a typographical error in the initial



                                                  18
statute. As originally drafted, § 3553(f) provided for safety-valve relief for defendants convicted

of offenses under “section 1010 or 1013 of the Controlled Substances Import and Export Act (21

U.S.C. 961, 963).” Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322,

§80001, 108 Stat. 1796 (emphasis added). The 1996 amendment corrected this error, modifying

the language to reflect its current form, which provides for safety-valve relief “in the case of an

offense under . . . section 1010 or 1013 of the Controlled Substances Import and Export Act (21

U.S.C. 960, 963).” Economic Espionage Act of 1996, Pub. L. 104-294, § 601(b)(5), 110 Stat.

3448, 3500 (emphasis added). This efforttwo years after the safety-valve provision was

initially adopted and ten years after the MDLEA was amended to reflect its current formto

correctly cite to the offenses for which safety-valve relief is available, without reference to the

MDLEA, largely refutes the defendants’ present contention that the failure to include the

MDLEA among the offenses in § 3553(f) was a mere oversight. Quite the opposite, even with

the opportunity to consider the precise text at issue here, Congress has declined to include

MDLEA offenses among the enumerated offenses for which safety-valve relief is available or

otherwise made clear that these offense qualify as offenses “under . . . § 960.”

       Nonetheless, the defendants press that construing the safety-valve provision to apply

equally to § 955 and the MDLEA would avoid the “absurd” result under which MDLEA

defendants are subject to more severe punishment than defendants who commit equivalent

offenses in domestic waters, on land, or in aircrafts subject to United States jurisdiction. Id. at

9–10. Without question, however, Congress intended the safety-valve provision to apply to

some, but not all, drug offenses subject to mandatory-minimum penalties. See Gamboa-

Cardenas, 508 F.3d at 498 (collecting cases finding that safety-valve relief is unavailable for

defendants convicted under 21 U.S.C. § 860). Moreover, the Court discerns no absurdity in


                                                 19
precluding safety-valve relief for defendants engaged in international drug trafficking. In fact, in

enacting the MDLEA, Congress emphasized the “serious international problem” of international

drug trafficking aboard maritime vessels, which “presents a specific threat to the security and

societal well-being of the United States.” 46 U.S.C. § 70501. Thus, in addition to the familiar

concerns presented by domestic drug trafficking, Congress found that the conduct underlying the

charged conspiracy “is a serious international problem, facilitates transnational crime, including

drug trafficking, and terrorism, and presents a specific threat to the safety of maritime navigation

and the security of the United States.” Id. With this in mind, and absent evidence of

Congressional intent to the contrary, the Court concludes that Congress, in passing safety-valve

provision, meant what the plain language of the safety valve provision says and did not intend

for offenses under the MDLEA to qualify as “offenses under . . . § 960” within the meaning of

the 18 U.S.C. § 3553(f).

       Finally, to the extent that Congress’s precise intent remains unclear, any lingering

ambiguity is not so “grievous” as to require the Court to adopt the defendants’ preferred

interpretation under the rule of lenity. Burwell, 690 F.3d at 515. Indeed, even assuming that the

text of § 3553(f) admits of some minor ambiguity, there is little reason to believe that individuals

considering whether to engage in drug trafficking on the high seas will be less likely to do so

with the knowledge that, upon their capture and successful prosecution in the United States

under the MDLEA, they will not be eligible for potential safety-valve relief from the mandatory-

minimum sentence that applies under United States law to their offense.

       Accordingly, the Court finds that safety-valve relief under § 3553(f) is unavailable to

defendants, like the defendants here, who are convicted of conspiring to engage in international

maritime drug trafficking in violation of the MDLEA.



                                                 20
               3.      Alleyne Does Not Alter the Court’s Interpretation of 18 U.S.C. § 3553(f)

       Finally, the defendants contend that prior out-of-circuit decisions addressing the

application of the safety-valve provision to MDLEA offenses cannot be squared with the

Supreme Court’s more recent ruling in Alleyne. Chang-Rendon Mem. at 7–9; Reply Mem. Supp.

Def. Moreno-Membache’s Legal Eligibility for Safety-Valve Relief (“Moreno-Membache

Mem.”), ECF No. 202. In Alleyne, the Supreme Court continued its long-running effort to

distinguish between those facts that constitute elements of a particular crime and, under the Sixth

Amendment, must be found by a jury beyond a reasonable doubt, and those facts that qualify as

mere “sentencing factors,” which may be considered by the Court without a formal jury finding.

Reversing its earlier holding in Harris v. United States, 536 U.S. 545 (2002), the Alleyne Court

held that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133 S. Ct. at 2155. In

particular, because mandatory-minimum sentences imposed by statute increase the minimum

penalty for a particular offense, “any fact that increases the mandatory minimum [for a particular

offense] is an ‘element’ [of that offense] that must be submitted to the jury.” Id. Relying on

Alleyne, the defendants suggest that the drug quantities outlined in subsection (b) of § 960, which

dictate whether a defendant is subject to a mandatory-minimum, are elements of the offenses that

incorporate the penalties outlined in subsection (b). Moreno-Membache Mem. at 3; Chang-

Rendon Mem. at 8.

       The D.C. Circuit has yet to address precisely how Alleyne applies where a defendant’s

participation in a charged drug conspiracy subjects him to a potential mandatory minimum under

§ 960. Compare United States v. Fields, 251 F.3d 1041, 1043 (D.C. Cir. 2001) (“Apprendi . . .

applies to sentences predicated on drug quantity where progressively higher statutory maximums



                                                 21
are triggered by findings of progressively higher quantities of drugs.”) with United States v.

Woodruff, No. CR 13-200 (RWR), 2015 WL 5118503, at *3 (D.D.C. Aug. 28, 2015) (noting that

the D.C. Circuit has not resolved the question whether “a jury must find that the amount of drugs

that triggers a statutory mandatory minimum penalty in a narcotics conspiracy is attributable to

the conduct of a convicted conspirator—or is reasonably foreseeable by him or her as the amount

involved in the conspiracy—before that amount’s penalties are triggered for that conspirator”).

In any event, however, the Supreme Court’s holding in Alleyne is entirely consistent with the

Ninth and Eleventh Circuits’ prior consideration of the application of the safety-valve provision

to the MDLEA. While the Apprendi line of cases often distinguishes between “elements” of an

offense, which must be found beyond a reasonable doubt by a jury, and “sentencing factors,”

which may be found by a preponderance of the evidence by a sentencing judge, Alleyne, 133 S.

Ct. at 2156 (citing McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986)), designating a particular

factual question as an “element” of an offense requiring a jury determination under the Sixth

Amendment has no obvious bearing on the Court’s interpretation of 18 U.S.C. § 3553(f).

       Indeed, even assuming that the drug quantities identified in § 960(b) constitute elements

of an MDLEA offense for purposes of the Sixth Amendment (and thereby must be determined

by a jury), it does not follow that a violation of the MDLEA constitutes an “offense . . . under §

960” within the meaning of the safety-valve provision. The defendants’ present contention that

Alleyne governs the Court’s interpretation of the safety-valve provision appears to rest on the

assumption that, in passing the safety-valve provision in 1994, Congress anticipated the Supreme

Court’s holding, nineteen years later, that the quantity of drugs involved in an MDLEA offense

is an “element” of the offense that must be found by a jury. The defendants point to nothing in




                                                22
the legislative history suggestive of such an awareness, and the Court declines to infer any such

Congressional awareness, let alone intent, from this silence.

       In short, Alleyne does nothing to call into question the Ninth and Eleventh Circuits’

interpretation of § 3553(f)’s reference to § 960 as “invok[ing] the statutes listed in 21 U.S.C. §

960(a),” namely, 21 U.S.C. §§ 952, 953, 955, 957 and 959. Accordingly, consistent with the

reasoning of each of the circuit courts that have considered the issue, as well as the plain

language of the statute itself, the Court concludes that an offense defined under the MDLEA

does not, by virtue of the fact that it is punished in accordance with 21 U.S.C. § 960(b), qualify

as an “offense under . . . § 960” within the meaning of 18 U.S.C. § 3553(f).

III.   CONCLUSION

       For the foregoing reasons, the Court holds that relief from an otherwise applicable

mandatory minimum sentence under the safety-valve provision of 18 U.S.C. § 3553(f) is

unavailable for defendants convicted under the substantive or conspiracy provisions of the

MDLEA.

                                                                       Digitally signed by Hon. Beryl A.
                                                                       Howell, Chief Judge
                                                                       DN: cn=Hon. Beryl A. Howell,
       Date: March 21, 2016                                            Chief Judge, o, ou=U.S. District
                                                                       Court for the District of Columbia,
                                                                       email=Howell_Chambers@dcd.us
                                                                       courts.gov, c=US
                                                                       Date: 2016.03.21 19:02:23 -04'00'
                                                      __________________________
                                                      BERYL A. HOWELL
                                                      Chief Judge




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