explaining that the 1980 statute was later amended to reflect its current form in 1986 (citing Act of Sept. 15, 1980, Pub. L. No. 96-350, § 1, 94 Stat. 1159, 1160; Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 3202, 100 Stat. 3207)
How later courts described this case
- explaining that the 1980 statute was later amended to reflect its current form in 1986 (citing Act of Sept. 15, 1980, Pub. L. No. 96-350, § 1, 94 Stat. 1159, 1160; Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 3202, 100 Stat. 3207)
- concluding that because the predecessor statute to 46 U.S.C. § 70503 was not specifically listed in section 3553(f), “the plain statutory text indicates that the safety valve does not apply[.]”
- invoking equitable estoppel to prevent government from arguing 18 U.S.C. § 3553(f) safety valve did not apply to defendant, when defendant waived right to testify at trial because he believed government’s representation that safety valve would apply
- explaining that, where appellees fail to raise an argument in their answering brief, “they have waived it”
Written by the judges who cited it.
The opinion
FISHER, Circuit Judge,
concurring in part, dissenting in part:
I agree with the majority that the government is estopped from arguing that the safety valve is unavailable to appellee Gamboa-Victoria. I further agree that the district court did not err by applying a two-level downward adjustment for acceptance of responsibility and I would also affirm Gamboa-Victoria’s 41 month sentence.
I respectfully disagree, however, with the majority’s conclusion that the safety valve provision of 18 U.S.C. § 3553 (f) unambiguously does not apply to offenses under 46 U.S.C. app. § 1903 (repealed *507 2006). 1 The majority’s reading of the relevant statutes is plausible, but it is not the only plausible reading and this demonstrates that the statutory language is ambiguous. Section 1903 required “punish[ment] in accordance with the penalties set forth in section ... 960.” 2 Since 1994, all penalties set forth in § 960 are subject to safety valve relief. One could understand the combination of these provisions to mean that § 1903 offenses should be penalized the same as offenses under § 960, which is expressly listed in the safety valve statute, and thus that the safety valve applies to § 1903 penalties.
Section A of the majority opinion underscores the validity of this other plausible reading, acknowledging that in the past the government itself has acted under the assumption that the safety valve does apply to § 1903 offenses and has not generally challenged its availability. Our court and others have also assumed, albeit without discussion, that § 1903 offenses are eligible for safety valve reductions. See, e.g., United States v. Zakharov, 468 F.3d 1171, 1181-82 (9th Cir.2006) (concluding that the district court had not erred in finding that the defendant failed on the merits to qualify for a safety valve reduction); United States v. Milkintas, 470 F.3d 1339, 1344-46 (11th Cir.2006) (per curiam) (same). Further, that the majority’s interpretation of the statutory history differs from the district court’s interpretation in United States v. Olave-Valencia, 371 F.Supp.2d 1224 (S.D.Cal.2005), also suggests that the statute is ambiguous. 3 All of the above cuts against the majority’s conclusion that the plain statutory language unambiguously shows that the safety valve is inapplicable to offenses under § 1903.
Because I conclude that the statutory language is ambiguous as to whether § 1903 offenses are eligible for safety valve relief, I would look to the history and purpose of § 1903 to determine whether the safety valve applies. The combined effect of Congress’ inadvertent repeal of the drug importing laws in the Comprehensive Act of 1970 and Congress’ subsequent enactment of 21 U.S.C. § 955a, the precursor to § 1903 that states that “any person that commits an offense as defined in this section shall be punished in accordance with the penalties set forth in section ... 960,” can be read as requiring that § 1903 offenses be punished in the same manner as offenses under § 960. No statutory language or legislative history compels a conclusion that when Congress created a safety valve under § 3553(f) that applied to offenses under § 960 it intended § 3553(f) to create a disparity between the effect of penalties for § 955 offenders and § 1903 offenders with similar characteristics. Rather, like the government until recently, I believe the most plausible reading of the relevant statutes is that § 1903 offenses should be penalized in the same manner as offenses *508 under § 960, which is expressly listed in the safety valve provision. Accepting that the safety valve applies to offenses under § 1903, I would affirm the sentences of appellees Gamboa-Cardenas, Cuero-Ara-gon and Barahona-Estupinan as well as that of appellee Gamboa-Victoria.
. Title 46 app. U.S.C. § 1903 has been reenacted in 46 U.S.C. §§ 70501-07 .
. As reenacted, the relevant statutory language states that those convicted under the statute "shall be punished as provided in [21 U.S.C. 960],” 46 U.S.C. § 70506 (emphasis added), rather than "in accordance with the penalties set forth in [ 21 U.S.C. § 960 ],” 46 app. U.S.C. § 1903(g)(1) (emphasis added).
. The majority's conclusion that applying the safety valve reductions to violations of 21 U.S.C. § 955 but not to § 1903 offenses is "perfectly logical” does not account for offenses analogous to § 1903 that are expressly eligible for safety valve reductions notwithstanding they go beyond mere possession. See 21 U.S.C. §§ 952 , 953 and 957 (knowingly or intentionally importing or exporting a controlled substance), and § 959 (manufacturing, possessing with intent to distribute or distributing a controlled substance).