                            UNITED STATES of America, Plaintiff-Appellee,

                                                      v.

                               Jesus Alberto PELAEZ, Defendant-Appellant.

                                                No. 97-5656.

                                       United States Court of Appeals,

                                              Eleventh Circuit.

                                               Nov. 18, 1999.

Appeal from the United States District Court for the Southern District of Florida.(No. 93-483-CR-CCA), C.
Clyde Atkins, Judge.

Before BLACK, HULL and MARCUS, Circuit Judges.

        BLACK, Circuit Judge:

        Appellant Jesus Alberto Pelaez appeals the district court's denial of his motion under 18 U.S.C. §

3582(c)(2) to modify his sentence. The sole issue on appeal is whether the district court should have reduced

his sentence by applying the "safety valve" provision of 18 U.S.C. § 3553(f). We hold the district court was

correct in determining as a matter of law that § 3553(f) cannot be applied to Appellant's sentence because the

final judgment of the district court was entered before the effective date of the provision.

                                             I. BACKGROUND

        On March 3, 1994, Appellant was convicted by a jury of possession of cocaine with intent to

distribute and conspiracy, in violation of 21 U.S.C. §§ 841(a)(1) & 846. Using the applicable Sentencing

Guidelines, the district court sentenced Appellant on June 30, 1994. This Court affirmed Appellant's

conviction and sentence in its entirety on April 12, 1996. See United States v. Palaez, No. 94-4766 (11th Cir.

Apr. 12, 1996), 83 F.3d 435 (table).

        On September 23, 1994, in the period between the district court's sentencing and the determination

of Appellant's direct appeal, a "safety valve" sentencing provision for federal drug offenses took effect. This

provision, 18 U.S.C. § 3553(f), permits a district court to sentence below the otherwise applicable statutory
mandatory minimum sentence for certain drug offenses if five criteria are established.1 If the provision is

applicable to his case and he were found to meet the criteria, Appellant would qualify for a two-level

reduction in his sentence. See U.S.S.G. §§ 5C1.2 & 2D1.1(b)(6).

        Although § 3553(f) took effect during the pendency of his direct appeal, Appellant did not assert

during that appeal a claim that the provision could be applied to his sentence. Instead, Appellant raised the




    1
     In full, the safety valve provides that:

                          (f) Limitation on applicability of statutory minimums in certain
                 cases.—Notwithstanding any other provision of law, in the case of an offense under [21
                 U.S.C. §§ 841, 844, 846, 960, or 963], the court shall impose a sentence pursuant to
                 guidelines promulgated by the United States Sentencing Commission under section 994 of
                 title 28 without regard to any statutory minimum sentence, if the court finds at 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 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).

                                                      2
issue on June 26, 1997, in a motion for a modification of his sentence under 18 U.S.C. § 3582(c)(2).2 On

September 22, 1997, the district court denied Appellant's motion.

                                              II. DISCUSSION

         In denying Appellant's § 3582(c)(2) motion, the district court held Appellant was not eligible for the

§ 3553(f) safety valve because the provision does not apply to his sentence as a matter of law. We review

de novo the district court's legal conclusions regarding the scope of its authority under the Sentencing

Guidelines. See United States v. Bush, 126 F.3d 1298, 1299 (11th Cir.1997).

        The safety valve's enacting statute provides that § 3553(f) "shall apply to all sentences imposed on

or after" September 23, 1994. Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-

322, § 80001(c), 108 Stat. 1796, 1985-86. Appellant agrees § 3553(f) cannot be applied retroactively to

sentences imposed before September 23, 1994.3 On appeal, Appellant maintains he is not asking for a

retroactive application of § 3553(f) because he argues a sentence is not imposed until the sentence is affirmed

by the Court of Appeals on direct appeal.4




   2
       Section 3582(c)(2) provides in pertinent part that a previously imposed sentence may be modified at a
later date "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission ... upon motion of the defendant
... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."
18 U.S.C. § 3582(c)(2).
    3
      Amendments to the Sentencing Guidelines reducing the sentencing range for an offense may not be
applied to defendants already sentenced unless a retroactive application of the reduction is "consistent with
applicable policy statements" from the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Under U.S.S.G.
§ 1B1.10(a), only amendments listed in § 1B1.10(c) may be applied retroactively using a § 3582(c)(2)
motion. The Guidelines amendment incorporating the safety valve provision of § 3553(f) is not listed in §
1B1.10(c). Therefore, the retroactive application of the safety valve using a § 3583(c)(2) motion is precluded
as inconsistent with the policy statements of the Commission.
   4
     In making the argument that a sentence is not imposed for purposes of § 3553(f) until it is affirmed on
direct appeal, Appellant relies principally upon United States v. Clark, 110 F.3d 15 (6th Cir.1997), which held
that when § 3553(f) took effect, it applied not only to defendants not yet sentenced by the district court, but
also to defendants whose direct appeals of their sentences were still pending. See id. at 17-18. We do not
agree with and decline to follow the Sixth Circuit's holding in Clark.

                                                      3
         For purposes of whether a sentence was "imposed" on or after the effective date of § 3553(f), we

hold a sentence is imposed when the district court enters the final judgment. Most importantly, the statute

under which Appellant filed his motion, 18 U.S.C. § 3582, provides a strong indication that sentences are

imposed only in the trial court. It states the following: "Notwithstanding the fact that a sentence to

imprisonment can subsequently be" modified by a § 3582(c) motion or corrected by the trial court under

Federal Rule of Criminal Procedure 35 or on appeal by the Court of Appeals, "a judgment of conviction that

includes such a sentence constitutes a final judgment for all other purposes." 18 U.S.C. § 3582(b) (emphasis

added). The applicability of § 3553(f) thus is a purpose for which the judgment of conviction and sentence

issued by the trial court is final—that is, because the sentence is final upon entry of judgment, the necessary

interpretation is that the sentence is imposed, even for purposes of § 3553(f), not when the sentence

subsequently is affirmed on appeal but when the judgment initially is entered in the trial court.

        Similarly, the other provisions of § 3553, to which subsection (f) was added in 1994, discuss the

imposition of sentences as an activity of the trial court.5 Likewise, the common sense meaning of the word




    5
     See, e.g., 18 U.S.C. § 3553(a)(1)-(7) ("The court in determining the particular sentence to be imposed,
shall consider," inter alia, the character of the offense and offender, the possible sentences available, the need
for incapacitation or rehabilitation, and the applicable Sentencing Guidelines and policy statements); id. §
3553(b) ("The court shall impose a sentence" within the Guidelines "unless the court finds that there exists
an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken in to consideration"
by the Guidelines).

                                                        4
is that a sentence is "imposed" by the trial court.6 Judgments of conviction and sentence issue from trial

courts. Appellate courts review and sometimes vacate these judgments, but they do not impose them.

        Finally, Appellant's suggested interpretation would undermine the administrative policies underlying

the sentencing system, particularly the presumption that most amendments to the Guidelines are not given

retroactive effect. A rule permitting defendants to take advantage of amendments adopted during the appeal

but after the judgment is entered would undermine the finality of judgments and the integrity of the appellate

process. It would "provide offenders with a strong incentive to delay appeals, or to take unnecessary appeals,

simply in the hope that some suggested change eventually finds embodiment in an amendment that takes

effect before the appeal's termination." United States v. Havener, 905 F.2d 3, 7-8 (1st Cir.1990). Appellant's

interpretation of when a sentence is imposed seeks to justify for § 3553(f) a rule rightly rejected for other

non-retroactive Guidelines amendments.

                                             III. CONCLUSION

        For purposes of whether a sentence was "imposed" on or after the effective date of § 3553(f), we hold

a sentence is imposed when the district court enters the final judgment. The judgment was entered in

Appellant's case on June 30, 1994, before the effective date of § 3553(f) on September 23, 1994. The district

court therefore correctly denied Appellant's § 3582(c)(2) motion for modification of his sentence.

        AFFIRMED.




   6
     For example, cases interpreting the authority of district courts to modify sentences pursuant to Federal
Rule of Criminal Procedure 35(c) demonstrate that sentences are imposed by trial courts. Rule 35(c) provides
that a trial court "acting within 7 days after the imposition of sentence, may correct a sentence that was
imposed as a result of arithmetical, technical, or other clear error." In United States v. Yost, 185 F.3d 1178
(11th Cir.1999), this Court held that, upon discovery of a clear error, the authority to correct the sentence
extended not only to the clear error but also to any other errors, clear or otherwise, in the original sentence.
We noted (without reaching the issue) a Circuit split over whether the seven-day clock begins to run from
the oral pronouncement of sentence or the entry of the written judgment in the event of a conflict between
the two. See id. at 1180 n. 3 (citing, e.g., United States v. Morillo, 8 F.3d 864, 869 n. 8 (1st Cir.1993) (" 'it
is likely' ... sentence is imposed on 'the date judgment enters, rather than the date sentence is orally
pronounced' " if the two sentences differ)). Under either view, however, the sentence is "imposed" no later
than the trial court's entry of judgment, not when the Court of Appeals affirms the sentence.

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