Ninth Circuit panel finds no improper enhancement when safety-valve-proffer information is considered with other information in setting below-guideline sentence

Addressing an issue of first impression, a Ninth Circuit panel today issued an interesting opinion addressing the application of a small provision of the FIRST STEP Act in US v. Brown, No. 20-5313 (9th Cir. Aug. 2, 2022) (available here).  Here are excerpts from part of the opinion providing background and the heart of the ruling:

In this case, Appellant Marquis Brown was arrested for smuggling drugs across the border. He pleaded guilty to the charge and faced a statutory ten-year mandatory minimum sentence.  He subsequently took advantage of a safety valve proffer and became safety valve eligible for a sentence below the mandatory minimum sentence. The district court imposed a 78-month sentence. That sentence was below Brown’s guidelines range of 108–135 months, but above the 71 months requested by the government, and the 42 months recommended by his attorney and the Probation Department.

Brown now appeals, arguing that his sentence was procedurally defective because the district court improperly relied on information he disclosed in his safety valve proffer to “enhance” his sentence....

Brown contends that the district court committed a procedural error because it improperly enhanced his sentence in violation of the First Step Act of 2018.  The First Step Act, which in part amended 18 U.S.C. § 3553(f), proscribes, inter alia, district courts judges from using information “disclosed by a defendant” in a safety valve proffer “to enhance the sentence of the defendant unless the information relates to a violent offense.” Pub. L. No. 115391, 132 Stat. 5194 (Dec 21, 2018). Despite the district court imposing a sentence that is below his guidelines range, Brown argues that the court ran afoul of this proscription when it relied on information from the safety valve proffer to deny him a further sentence reduction....

We have regularly held that the denial of a sentencing benefit or reduction is not an “increase in punishment.”  See, e.g. United States v. Waters, 771 F.3d 679 (9th Cir. 2014) (reviewing whether amendments to a statute violated a constitutional prohibition on when States can increase the punishment for a defendant’s crime).  In Waters, the appellant argued that a statute the district court relied on to deny his request for sentence reduction violated the Ex Post Facto Clause. Id. at 680.  We held that the amendments merely limited the appellant’s ability to reduce his sentence and “[did] not increase the punishment for his crime[.]” Id. at 681....

We hold that the district court did not impose an improper sentence enhancement here.  Brown contends that because the district court used information from the proffer in determining his final sentence, it was an improper enhancement.  It is clear that the district court considered information disclosed in the safety valve proffer to impose a sentence, such as Brown’s previous drug smuggling trips.  This is not prohibited.  The district court noted the previous drug smuggling trips, but also mentioned various other aggravating factors, including the nine-year-old being in the car, the amount and type of drug involved, and the impact on the community.  The sentencing court considered the safety valve information in conjunction with other mitigating and aggravating factors in its determination of a downward sentence variance.  The district court imposed a sentence of 78 months — a sentence not just below the mandatory minimum, but also 30 months below the low end of Brown’s guidelines range.  This does not constitute an enhancement.

Brown takes issue with the fact that the sentence was not as low as he had requested.  But the failure to reduce a sentence is not an enhancement.  Moreover, we do not take the First Step Act’s proscription as Congress stripping away a district court’s discretion.  All that § 3553(f)(5) prohibits is using information from a safety valve proffer “to enhance the sentence[.]” § 3553(f)(5).  Here, Brown got the benefit of the safety valve reduction, resulting in a sentence below both the mandatory minimum and his guidelines range. This is not an improper “enhancement” of a sentence under § 3553(f)(5).