United States v. Esteban Hernandez-Castro

Under 18 U.S.C. § 3553 (f), known as the “safety valve” provision, a defendant may be sentenced below the applicable statutory minimum if certain conditions are met, including not having “more than 1 criminal history point, as determined under the sentencing guidelines.” Id. § 3553(f)(1). The issue we consider is whether, following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), the United States Sentencing Guidelines are advisory for purposes of calculating criminal history points under § 3553(f)(1).

This is an issue of first impression in this circuit and we join our sister circuits in holding that Booker left intact the requirement of § 3553(f)(1) that a defendant “not have more than 1 criminal history point.” Section 3553(f)(1) is not, by virtue of its reference to the Sentencing Guidelines, rendered advisory by Booker. See United States v. McKoy, 452 F.3d 234, 239 (3d Cir.2006); United States v. Brehm, 442 F.3d 1291, 1300 (11th Cir.2006); United States v. Barrero, 425 F.3d 154, 157-58 (2d Cir.2005); United States v. Bermudez, 407 F.3d 536, 544-45 (1st Cir.2005); see also United States v. Payton, 405 F.3d 1168 ,…