1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case No.: 17cr2347-CAB; 19cv2190-

CAB

12 Plaintiff,

13 v. ORDER ON MOTION TO VACATE,

SET ASIDE OR CORRECT

14 JESUS MACHIN,

SENTENCE

15 Defendant. [Doc. No. 56, Doc. No. 1] 16 17 On April 19, 2019, the petitioner Jesus Machin was sentenced to 120 months of 18 custody, a mandatory minimum sentence, for a violation of 21 U.S.C. §§ 952, 960, after 19 pleading guilty to the importation of 18.56 kilograms of methamphetamine in Case No. 20 17cr2347-CAB. [See 17cr2347, Doc. Nos. 22, 55, 61-1.] It is undisputed that the petitioner 21 had a prior 2005 felony conviction for importation of methamphetamine for which he 22 received a 57-month sentence. [See 05cr1331-J, Doc. No. 20.] The petitioner’s prior 23 conviction scored 3 points under the sentencing guidelines, making him ineligible for 24 “safety valve” relief from the statutory mandatory minimum applicable to his sentence in 25 17cr2347. See 21 U.S.C ¶ 960(b)((1)(H) (person importing more than 500 grams of 26 methamphetamine shall be sentenced to a term of imprisonment of not less than 10 years); 27 18 U.S.C. § 3552(f)(1)(B) (court may impose a sentence without regard to the statutory 28 minimum if the court finds at sentencing that the defendant does not have a prior 3-point 1 offense). The joint sentencing recommendation of the government, probation and the 2 petitioner’s counsel was the statutory mandatory minimum sentence of 120 months which 3 the Court imposed. [See 17cr2347, Doc. Nos. 27, 31, 59.] 4 Petitioner now seeks to vacate, set aside, or correct his sentence pursuant to 28 5 U.S.C. § 2255 based on his claim of ineffective assistance of counsel.1 [See 19cv2190, 6 Doc. No 1; 17cr2347, Doc. No. 56.] The government filed an opposition to the motion. 7 [17cr2347, Doc. No. 61.] Petitioner did not file a traverse. The Court finds the motion 8 suitable for determination on the papers submitted and without oral argument in accordance 9 with Civil Local Rule 7.1(d)(1). 10 To succeed on a § 2255 motion alleging ineffective assistance of counsel petitioner 11 must demonstrate that his counsel’s performance fell below an objective standard of 12 reasonableness guaranteed by the Constitution such that the outcome of the adjudication 13 would likely have been different. See Strickland v. Washington, 466 U.S. 668, 688, 691- 14 92 (1984) (the defendant must show that counsel’s representation fell below an objective 15 standard of reasonableness and that the defendant was prejudiced with reasonable 16 probability due to counsel’s errors.) 17 Petitioner contends that his counsel’s assistance was ineffective because his counsel 18 failed to argue that petitioner did qualify for safety valve relief from a mandatory minimum 19 sentence under the First Step Act (FSA) as set forth in 18 U.S.C. § 3552(f). Petitioner 20 argues that he was in fact eligible under § 3552(f), because the statutory language dictates 21 that a defendant meet all the disqualifying criteria set forth in § 3552(f)(1)(A)-(C) to be 22 ineligible for safety valve and he did not. 23 The Court denies the petitioner’s motion. The petitioner’s proffered interpretation 24 of § 3552(f) is not supported by the overall statutory language, as it would render a 25 provision of the statute meaningless, and is contrary to the legislative history of the FSA. 26

27 1 Pursuant to his plea agreement the petitioner waived appeal except on the grounds of ineffective 28 1 Counsel’s decision not to advocate petitioner’s interpretation and advance an argument for 2 safety valve eligibility under the FSA did not fall below an objective standard of 3 reasonableness. 4 On December 21, 2018, the FSA was signed into law. First Step Act of 2018, § 402, 5 P.L. 115-391, December 21, 2018, 132 Stat 5194. Section 402 of the FSA expands the 6 availability of the judicial safety valve that can be used by sentencing judges to impose 7 sentences below any statutory minimum sentences. Prior to the FSA, safety valve was only 8 available in situations in which the defendant did not have more than 1 criminal history 9 point, as determined by the sentencing guidelines. The FSA amended 18 U.S.C. § 3552(f) 10 allowing a court to impose a sentence without regard to any statutory minimum sentence, 11 if the court finds at sentencing that 12 (1) The defendant does not have – 13 (A) more than 4 criminal history points, excluding any criminal history points 14 resulting from a 1-point offense, as determined under the sentencing guidelines; 15 (B) a prior 3-point offense, as determined under the sentencing guidelines; and 16 (C) a prior 2-point violent offense, as determined under the sentencing guidelines. 17 18 U.S.C. § 3552(f)(1)(A)-(C). 18 Because the statute enumerates the disqualifying criteria with the word “and” the 19 defendant argues the plain meaning of the statute requires a defendant have all three 20 disqualifying criteria to be deemed ineligible for safety valve. In the petitioner’s case, 21 although he had a prior 3-point offense, he did not have more than 4 criminal history points 22 or a prior 2-point violent offense. A qualifying “violent offense” for purposes of § 23 3552(f)(1)(C) means a crime of violence, as defined in 18 U.S.C. § 16, that results in a 24 sentence of at least 60 days but not longer than 13 months. See U.S.S.G. §4A1.1(a)-(b). 25 Although statutory phrases separated by the word “and” are usually interpreted in 26 the conjunctive, see e.g. Antonin Scalia & Bryan A. Garner, Reading Law: The 27 Interpretation of Legal Texts 116 (2012) (“under the conjunctive/disjunctive canon, and 28 combines items while or creates alternatives”), a statute must be interpreted in its entirety 1 giving effect to each provision. See Boise Cascade Corp v. U.S. E.P.A, 942 F.2d 1427, 2 1432 (9th Cir. 1991) (“we must interpret statutes as a whole, giving effect to each word 3 and making every effort not to interpret a provision in a manner that renders other 4 provisions of the same statue inconsistent, meaningless or superfluous”). 5 Interpreting the statute as advocated by the petitioner renders section (A) 6 superfluous. If disqualification from safety valve requires a defendant have both a prior 3- 7 point offense and a prior 2-point offense, the defendant would necessarily have more than 8 4 criminal history points, rendering provision (A) of § 3552(f)(1) unnecessary. Petitioner’s 9 interpretation that the “and” in section (f)(1) requires a defendant have all three criteria 10 eliminates the need for provision (A) from the statute. That is not a logical, coherent 11 reading of the statute as a whole. Interpreting “and” in the disjunctive gives effect to all 12 the provisions of the statute and results in a logical, coherent interpretation. See OfficeMax, 13 Inc. v. United States, 428 F.3d 583, 589 (6th Cir. 2005) (courts have interpreted and 14 disjunctively to avoid an incoherent reading of a statute). 15 Further a statute is to be construed to give effect to the legislative will. See United 16 States v. Scrimgeour, 636 F.2d 1019, 1022-23 (5th Cir. 1981). “We must … interpret the 17 relevant words not in a vacuum, but with reference to the statutory context, ‘structure, 18 history and purpose.’” Abramski v. U.S., 134 S. Ct. 2259, 2267 (2014) (citing Maracich v. 19 Spears, 133 S. Ct. 2191, 2209 (2013).) Words should be interpreted as taking their ordinary 20 meaning, however it is the duty of a court to give effect to the intent of the legislature. 21 Applying the plain meaning of the word on the face of the statute should not be variance 22 with the policy of the legislation as a whole. The word “and” is accepted for its conjunctive 23 connotation rather than as a word interchangeable with “or” except where strict 24 grammatical construction will frustrate clear legislative intent. See Bruce v. First Fed. Sav. 25 & Loan Ass’n of Conroe, 837 F.2d 712, 714-15, fn. 2 (5th Cir. 1988) (citing numerous 26 instances when “and” was construed as “or” and “or” as “and” to comport with legislative 27 intent). 28 1 The FSA was intended as a modest expansion of safety valve eligibility. See, e.g., 2 164 Cong. Rec. S7745-01 (Senator Leahy describing the bill as a “compromise” with a 3 “modest expansion of the safety valve”; 164 Cong. Rec. S7648-01 (Senator Grassley 4 describing the safety valve expansion to cover “low-level, nonviolent offenders). The 5 Judiciary Committee’s summary of the FSA explicitly states that safety valve eligibility 6 will be extended to “offenders with up to four criminal history points … however, offenders 7 with prior ‘3 point’ felony convictions … or prior ‘2 point” violent offenses will not be 8 eligible.” Committee on the Judiciary, The Revised First Step Act of 2018 (S.3649).2 9 Interpreting the statutory language as advocated by the petitioner would make every 10 defendant who did not have a prior conviction for a violent offense that resulted in a 11 sentence of not less than 60 days but not more than 13 months eligible for safety valve. An 12 offender who received a sentence of multiple years for a violent felony, or an offender with 13 multiple 3-point prior felonies for drug trafficking, would be safety valve eligible providing 14 that defendant did not have the requisite 2-point prior. The intent of the legislation to 15 provide a modest extension of relief from mandatory minimum sentences to violators with 16 more than one criminal history point but not with serious, or violent criminal histories 17 would be clearly frustrated by petitioner’s interpretation. 18 The Court construes the “and” in 18 U.S.C. § 3552(f)(1)(A)-(C), in the disjunctive 19 to give meaning to all the provisions of the statute and give effect to the legislative intent. 20 The defendant’s prior 3-point felony conviction made him ineligible for safety value relief. 21 Alternatively, the petitioner argues that the statutory language is at least ambiguous, 22 and the rule of lenity requires that the ambiguity be resolved in his favor. “The rule of 23 lenity only applies if, after considering text, structure, history and purpose, there remains a 24 grievous ambiguity or uncertainty in the statute such that the Court must simply guess as 25 to what Congress intended.” Maracich, 133 S. Ct. at 2209, (citing Barber v. Thomas, 130 26

27 2 Available at: https://www.judiciary.sentate.gov/imo/media/deroc/S.%203649%20- 28 1 Ct. 2499, 2508-09 (2010).) Only where the language of the statute is uncertain “after 2 || looking to the particular statutory language, ... the design of the statute as a whole and to 3 object and policy does the rule of lenity serve to give further guidance.” Id. Any 4 ||ambiguity in 18 U.S.C. § 3552(f)(1)(A)-(C), is resolved by consideration of the entirety of 5 || the statute, its purpose and history. A court’s ability to interpret and apply the new FSA 6 ||safety valve criteria as Congress intended is not so “grievously uncertain” such that the 7 ||rule of lenity applies in this case. 8 The decision of petitioner’s attorney not to argue for safety valve under the FSA or 9 || lenity did not fall below an objective standard of reasonableness. The defendant’s motion 10 set aside his conviction due to ineffective assistance of counsel is denied. 11 IT IS SO ORDERED. 12 || Dated: February 27, 2020 <6 13 Hon. Cathy Ann Bencivengo 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28