                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 10-50148
                 Plaintiff-Appellee,
                                                     D.C. No.
                     v.                           3:09-cr-00691-
                                                     WQH-1
 ROBERTO IVAN LIZARRAGA-
 CARRIZALES,
              Defendant-Appellant.                   OPINION


        Appeal from the United States District Court
          for the Southern District of California
        William Q. Hayes, District Judge, Presiding

                    Argued and Submitted
              June 2, 2014—Pasadena, California

                          Filed July 2, 2014

Before: Stephen S. Trott and Consuelo M. Callahan, Circuit
      Judges, and Mark W. Bennett, District Judge.*

                   Opinion by Judge Callahan




 *
   The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
2        UNITED STATES V. LIZZARAGA-CARRIZALES

                           SUMMARY**


                           Criminal Law

    The panel affirmed a sentence in a case in which the
defendant claimed that the district court improperly engaged
in judicial fact-finding in denying him safety valve relief
from the mandatory minimum sentence and misapplied the
Sentencing Guidelines.

    The panel held that the safety valve determination under
18 U.S.C. § 3553(f) does not implicate Alleyne v. United
States, 133 S. Ct. 2151 (2013), because it does not increase
the statutory minimum sentence, and that the district court
therefore properly engaged in judicial fact-finding in making
that determination.

    The panel further held that the district court correctly
assigned more than one criminal history point to the
defendant because he was on probation when he committed
the federal offense and because there was an intervening
arrest between his two state convictions in 2000. Because
these assignments render the defendant ineligible for safety
valve relief, the panel concluded that any error in assigning
a criminal history point for the defendant’s sentence of three
years’ probation for his 2008 conviction was harmless.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
        UNITED STATES V. LIZZARAGA-CARRIZALES               3

                        COUNSEL

James Fife (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Chief, Appellate Section, Criminal Division, Daniel E. Zipp
(argued), Assistant United States Attorney, San Diego,
California, for Plaintiff-Appellee.


                         OPINION

CALLAHAN, Circuit Judge:

    Defendant-Appellant Roberto Ivan Lizarraga-Carrizales
(“Lizarraga”) appeals his sentence imposed following his
guilty plea to importation of heroin in violation of 21 U.S.C.
§§ 952 and 960 (the “federal offense”). Lizarraga claims that
the district court improperly engaged in judicial fact-finding
in denying him safety valve relief from the mandatory
minimum sentence and misapplied the Sentencing
Guidelines. We hold that the safety valve determination
under 18 U.S.C. § 3553(f) does not implicate Alleyne v.
United States, 133 S. Ct. 2151 (2013), because it does not
increase the statutory minimum sentence. We further hold
that the district court correctly assigned more than one
criminal history point to Lizarraga because he was on
probation when he committed the federal offense and because
there was an intervening arrest between his two state
convictions in 2000. Accordingly, Lizarraga was ineligible
for safety valve relief, and we affirm.
4       UNITED STATES V. LIZZARAGA-CARRIZALES

                              I

    On October 10, 2008, Lizarraga drove into the United
States at San Ysidro, California and was arrested after border
officers found 7.25 kilograms of heroin hidden inside his
vehicle. Lizarraga eventually pled guilty to drug importation
in violation of 21 U.S.C. §§ 952 and 960. Because Lizarraga
was convicted of importing a kilogram or more of heroin, the
ten-year mandatory minimum sentence set by 21 U.S.C.
§ 960(b) was triggered, and Lizarraga was sentenced to 120
months’ custody.

    In imposing this sentence, the district court denied
Lizarraga’s request for safety valve relief from the mandatory
minimum sentence under 18 U.S.C. § 3553(f), finding that
Lizarraga had five criminal history points, four more than the
one point permitted. The court assigned 1) two points for
committing the federal offense while on probation for a 2008
state conviction for driving on a suspended license, 2) one
point for the 2008 conviction because it resulted in a sentence
of three years’ probation, and 3) two points for his two state
convictions in 2000 for misdemeanor burglary and petty theft.
Lizarraga then timely appealed his sentence.

    As an initial matter, Lizarraga concedes that the district
court properly assigned one criminal history point, but not
two points, based on his 2000 state convictions. Safety valve
relief under 18 U.S.C. § 3553(f) is available only if the
defendant has no more than one criminal history point, so we
must affirm the denial of safety valve relief if the district
court properly assigned any of the other four criminal history
points.
        UNITED STATES V. LIZZARAGA-CARRIZALES                 5

                              II

     The constitutionality of a statute is a legal question we
review de novo. United States v. Labrada-Bustamante,
428 F.3d 1252, 1262 (9th Cir. 2005). A district court’s
interpretation of the sentencing guidelines is reviewed de
novo, the application of the guidelines to the facts of the case
is reviewed for abuse of discretion, and factual findings are
reviewed for clear error. United States v. Alba-Flores,
577 F.3d 1104, 1107 (9th Cir. 2009) (citing United States v.
Ferryman, 444 F.3d 1183, 1185 (9th Cir. 2006)). Our review
of the district court’s denial of safety valve relief is
deferential, and we must accept the district court’s factual
findings unless we are “left with a definite and firm
conviction that a mistake has been made.” Id. (quoting
Ferryman, 444 F.3d at 1186).

    Lizarraga’s primary contention on appeal is that the facts
underlying the safety valve determination must be submitted
to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Alleyne v. United States, 133 S. Ct. 2151 (2013). Under
Apprendi and Alleyne, any fact that increases the statutory
minimum or maximum sentence for an offense must be
proven to a jury beyond a reasonable doubt. 530 U.S. at 490;
133 S. Ct. at 2158. We have held, post-Apprendi, that
statutory mandatory minimum sentences triggered by drug
quantities found beyond a reasonable doubt by a jury or
admitted by the defendant are constitutional. Labrada-
Bustamante, 428 F.3d at 1262–63. In Labrada-Bustamante,
we further held that the safety valve provision was
constitutional, even though it required judicial fact-finding.
Id. at 1263 (“[The defendant] would have us hold that facts
allowing a decreased sentence below [the] mandatory
minimum must be found by a jury beyond a reasonable doubt
6       UNITED STATES V. LIZZARAGA-CARRIZALES

. . . . Neither Apprendi nor Blakely [v. Washington, 542 U.S.
296 (2004),] compels such a holding.”).

    We have yet to decide in a published decision whether the
safety valve determination implicates Alleyne, and only one
circuit has done so. In United States v. Harakaly, 734 F.3d
88, 98 (1st Cir. 2013), cert. denied, 134 S. Ct. 1530 (2014),
the defendant argued that the district court violated Alleyne
“by making a judicial finding, by a preponderance of the
evidence, that he occupied a managerial role in the
conspiracy, and thus was not eligible for safety-valve relief
from the mandatory minimum sentence.” Id. at 97. The First
Circuit rejected this contention, explaining:

       Alleyne, by its terms, applies to facts that
       “increase[ ] the mandatory minimum.” [The
       defendant] suggests that Alleyne applies more
       broadly to any fact that “mandate[s] a greater
       punishment than a court would otherwise have
       had discretion to impose.” We do not read
       Alleyne so expansively. A fact that precludes
       safety-valve relief does not trigger or increase
       the mandatory minimum, but instead prohibits
       imposition of a sentence below a mandatory
       minimum already imposed as a result of the
       guilty plea or jury verdict.

Id. at 97–98 (citations omitted).

    Continuing, the Harakaly court discussed the implications
of the defendant’s Alleyne argument and reiterated that the
defendant has the burden of showing his entitlement to safety
valve relief by the preponderance of the evidence:
        UNITED STATES V. LIZZARAGA-CARRIZALES              7

       [The defendant’s] formulation stretches
       Alleyne well beyond its actual holding; would
       invalidate Congress’s command that “the
       court find[ ] at sentencing” the relevant
       safety-valve factors, see 18 U.S.C. § 3553(f);
       and introduces problematic practical
       considerations. Before granting safety-valve
       relief, the sentencing judge must make five
       specific factual findings.         See id. at
       § 3553(f)(1)–(5). Under [the defendant’s]
       formulation, safety-valve relief could not be
       denied at sentencing unless the judge had
       previously submitted to the jury special
       verdict questions corresponding to the
       safety-valve factors, or, in the plea context,
       the guilty plea expressly recited the absence
       of one or more factors. This arrangement
       would put the burden on the government to
       prove that the safety valve is inapplicable, but
       it has long been held that “[t]he defendant
       plainly has the burden of proving, by a
       preponderance of the evidence, entitlement to
       relief under [§ ] 3553(f).” United States v.
       Miranda-Santiago, 96 F.3d 517, 529 n.25 (1st
       Cir. 1996). This allocation of the burden
       makes perfect sense; were it otherwise, the
       government would be required to disprove the
       safety-valve factors before the defendant ever
       expressed an intent to seek a sentencing
       reduction via the safety valve.

Id. at 98; see also United States v. Mejia-Pimental, 477 F.3d
1100, 1104 (9th Cir. 2007) (“The defendant bears the burden
of proving safety valve eligibility by a preponderance of the
8       UNITED STATES V. LIZZARAGA-CARRIZALES

evidence.”); United States v. Jimenez, 451 F.3d 97, 102–03
(2d Cir. 2006) (defendant has burden to show eligibility for
safety valve relief, as “[t]he safety valve certainly was not
intended to impose on the government five additional
elements that it must prove before triggering the imposition
of a mandatory-minimum sentence”).

     Lizarraga may be correct that a district court does not, as
a practical matter, impose a mandatory minimum sentence
and then examine whether safety valve relief is available.
However, the safety valve does not come into play until the
sentencing judge determines that a mandatory minimum
applies. We agree with the First Circuit that the denial of
safety valve relief does not increase the statutory maximum
or minimum such that Alleyne is implicated. This holding
accords with our holding in Labrada-Bustamante that the
safety valve determination did not violate Apprendi, despite
its reliance on judicial fact-finding. See 428 F.3d at 1262–63.
Accordingly, the factual predicate for denying safety valve
relief need not be proven to a jury. Such determinations,
including whether a defendant was on probation at the time
of his arrest for a federal offense and whether there was an
intervening arrest between a defendant’s prior convictions for
which he was sentenced on the same day, may be made by
the judge by a preponderance of the evidence.

    We also reject Lizarraga’s contention that the district
court violated Butler v. Curry, 528 F.3d 624 (9th Cir. 2008),
when it found that Lizarraga was on probation at the time he
committed the federal offense. Butler held that, where a
defendant’s probationary status increased the statutory
maximum sentence for a crime, the question of whether he
was on probation when he committed the crime was a fact
that must be either admitted or found by a jury beyond a
         UNITED STATES V. LIZZARAGA-CARRIZALES                     9

reasonable doubt. Id. at 628–29, 647–48. Butler is not
implicated here because Lizarraga’s probationary status did
not increase the statutory maximum or minimum sentence but
rather barred safety valve relief.

   Accordingly, we hold that the district court properly
engaged in judicial fact-finding in determining that Lizarraga
was not eligible for safety valve relief.

                                III

     Aside from his constitutional objections, Lizarraga argues
that the district court misapplied the Guidelines in assigning
him two criminal history points for committing the federal
offense while on probation. The Guidelines assign a
defendant two criminal history points if he commits a federal
offense while under a criminal justice sentence, including a
sentence of probation. U.S.S.G. § 4A1.1(d). Lizarraga was
sentenced to three years’ probation on September 22, 2008
for his 2008 conviction for driving on a suspended license,
and he was still on probation when he committed the federal
offense. However, Lizarraga obtained an order on July 30,
2009, prior to his sentencing for the instant offense, which
terminated his probation nunc pro tunc1 to 18 days, ending on
October 7, 2008, three days before the instant offense.
Lizarraga argues that the state court’s nunc pro tunc order
meant that he could not be considered as being on probation
at the time of the offense for federal sentencing purposes.

   This argument is unavailing, as we rejected an identical
argument in United States v. Yepez, 704 F.3d 1087 (9th Cir.

  1
    Black’s Law Dictionary (9th ed. 2009), defines “nunc pro tunc” as
“having retroactive legal effect through a court’s inherent power.”
10      UNITED STATES V. LIZZARAGA-CARRIZALES

2012) (en banc) (per curiam), cert. denied, 133 S. Ct. 2040
(2013). In Yepez, two defendants were arrested for drug
importation and sought safety valve relief from the ten-year
mandatory minimum sentence. They argued that they should
not receive two criminal history points for committing their
federal offenses while on probation, as they had obtained
orders in state court after their arrests terminating their
probation nunc pro tunc, effective the day before they
committed the federal offenses. We rejected this contention,
explaining that the Guidelines look to a defendant’s status “at
the time he commits the federal crime”:

       That a state court later deemed the probation
       terminated before the federal crime was
       committed can have no effect on a
       defendant’s status at the moment he
       committed the federal crime.              That
       termination may have beneficial consequences
       for the defendant under state law, but a court
       cannot alter the historical fact that the
       defendant had the status of probationer when
       he committed his federal crime . . . . State
       courts cannot be given the authority to change
       a defendant’s federal sentence by issuing a
       ruling that alters history and the underlying
       facts.

Id. at 1090–91; see also Alba-Flores, 577 F.3d at 1111 (when
determining whether a federal defendant is under a criminal
justice sentence, “[i]t is the actual situation at th[e] precise
point in time” that the crime was committed that controls,
“not the situation at some earlier or later point”). Here, too,
the state court’s nunc pro tunc order cannot alter the fact that
Lizarraga was actually on probation when he imported the
        UNITED STATES V. LIZZARAGA-CARRIZALES              11

heroin in 2008. Accordingly, we hold that the district court
properly assigned Lizarraga two criminal history points for
committing a federal offense while serving a criminal justice
sentence.

                             IV

    Lizarraga also argues that the district court erred in
assigning him two points for his two convictions in 2000 that
were sentenced on the same day. Under the Guidelines, prior
sentences are counted as a single sentence if they were
imposed on the same day, unless the underlying offenses
were separated by an intervening arrest.             U.S.S.G.
§ 4A1.2(a)(2). Lizarraga argues that the district court’s
reliance on police computer printouts to find an intervening
arrest violated Shepard v. United States, 544 U.S. 13 (2005),
and therefore there was insufficient evidence of an
intervening arrest. As noted, he concedes that the assignment
of one criminal history point for these convictions was
proper.

    We approved a district court’s reliance on similar
computer printouts at sentencing in United States v. Felix,
561 F.3d 1036, 1042–43 (9th Cir. 2009). In Felix, a district
court found that the defendant had a prior conviction which
barred safety valve relief. We concluded that “the district
court did not err when it relied on the PSR, the Pima County
criminal history computer printout, and the probation
officer’s statements in determining that [the defendant] had
a prior misdemeanor conviction.” Id. at 1043. In so holding,
we distinguished Shepard, which addressed whether a court
could rely on certain documents to determine the type or
character of a conviction under the modified categorical
approach, not the fact of the conviction, explaining that “the
12      UNITED STATES V. LIZZARAGA-CARRIZALES

preponderance of the evidence is generally the appropriate
standard for factual findings used for sentencing.” Id. at
1045. Further, sentencing courts are not limited to evidence
that would be admissible at trial. Id. at 1042 (citing, inter
alia, U.S.S.G. § 6A1.3 cmt.; United States v. Marin-Cuevas,
147 F.3d 889 (9th Cir. 1998)).

    In light of Felix and our holding that the safety valve
determination does not implicate Alleyne, the district court
was entitled to rely on police computer printouts from the San
Diego Sheriff’s Department. These printouts, the charging
documents for the 2000 offenses, and the presentence report
for the federal offense all support the district court’s finding
of an intervening arrest. They show that: 1) Lizarraga
committed misdemeanor burglary and petty theft at a Target
store in Chula Vista, California on August 16, 2000;
2) Lizarraga was arraigned in that case on August 18, 2000
and then released on his own recognizance; and 3) Lizarraga
committed a second offense, petty theft, at a different address
in Chula Vista on August 19, 2000. In light of this evidence,
and Lizarraga’s failure to offer evidence to the contrary, the
district court’s assignment of two points for his 2000
convictions was proper.

                              V

    Lizarraga also argues that the district court erred in
assigning him one criminal history point for having received
a term of probation longer than a year. Although Lizarraga
was sentenced to three years’ probation for his conviction for
driving on a suspended license in 2008, he had only served
311 days when he successfully petitioned the state court to
terminate his probation nunc pro tunc to 18 days on July 30,
2009.
        UNITED STATES V. LIZZARAGA-CARRIZALES                 13

    Section 4A1.2(c) of the Guidelines states that a defendant
may only receive a criminal history point for a conviction
resulting in a sentence of probation if the sentence was for
more than one year. We explained in United States v. Mejia,
559 F.3d 1113, 1116 (9th Cir. 2009), that the measure of the
“term of probation” in § 4A1.2(c) is the time actually served
on probation, not the sentence initially imposed, as “a term of
probation means a term of actual probation.” However, we
later explained in Yepez, 704 F.3d at 1090–91, that with
respect to a probationary status, it is the defendant’s status on
the day of the federal offense that controls, even if the
probation is later terminated nunc pro tunc. Further,
Lizarraga may have obtained the termination of his probation
in hope of affecting his sentence for the federal offense, thus
risking an “odor of gaming the federal sentencing system.”
See Alba-Flores, 577 F.3d at 1111.

    Nonetheless, we need not resolve any possible tension
between Mejia and Yepez because we have already held that
the district court properly assigned four criminal history
points which render Lizarraga ineligible for safety valve
relief. Accordingly, even assuming the district court erred in
assigning a point for Lizarraga’s sentence of three years’
probation, such error was harmless.

                              VI

    The district court properly engaged in judicial fact-finding
in making its safety valve determination, because the denial
of safety valve relief does not increase the statutory minimum
sentence. Further, the district court 1) correctly assigned
Lizarraga two criminal history points for committing the
federal offense while on probation, and 2) correctly assigned
two criminal history points for Lizarraga’s 2000 convictions.
14      UNITED STATES V. LIZZARAGA-CARRIZALES

Because these assignments render Lizarraga ineligible for
safety valve relief, any error in assigning a criminal history
point for Lizarraga’s sentence of three years’ probation for
his 2008 conviction was harmless. Accordingly, Lizarraga’s
sentence is AFFIRMED.
