justice safety valve act supplier

This is a law action in which plaintiff, Myrtle Rauch, sought to recover damages on account of injuries sustained by her when gas which escaped from a defective water heater exploded. The plaintiff, hereinafter referred to as appellee and her husband rented and on June 30, 1957 moved into the Lee Beeson property in Salix, Iowa. Appellee alleged the explosion was caused by the malfunctioning of the safety pilot valve on the Beeson heater *609 manufactured by appellant, American Radiator and Standard Sanitary Corporation. The safety pilot valve involved was manufactured by Titan Valve & Manufacturing Company, and was placed on the heater some ten months after the heater was originally sold and installed. It was purchased by the local dealer from appellant"s distributor who had purchased it from appellant and placed it in its stock.

Defendant"s motions for directed verdict, to dismiss, to withdraw certain issues, for judgment notwithstanding the verdict and for new trial were overruled. Defendant appeals on five grounds: (1) That it was neither the manufacturer nor did it stand in position of manufacturer but was only an intermediary seller and as such had no duty to inspect the valve; (2) That said valve was sold merely for inclusion in distributor"s stock and not as a replacement of the original valve on the heater; (3) That the jury should have been instructed that the defendant had a right to rely upon the manufacturer of the valve for any inspection or tests; (4) That the jury should have been instructed that the use of the valve for approximately five years without mishap might be considered as evidence that the valve was in proper and safe working condition; (5) That the verdict was excessive and appeared to have been influenced by passion and prejudice.

The tanks or bottles containing the odorized gas were located outside the house and carried to the heater by copper pipes or tubing. The flow of gas to the burner in the heater was first controlled by a thermostatic control which opened a valve permitting gas to enter the heater when the water in the tank of the heater was reduced or cooled to a set or fixed temperature, and was also controlled by a safety pilot valve or unit to which was attached a pilot light which lit the burner of the heater when gas was supplied to it. The purpose of this valve was to shut off the flow of gas in the event the pilot light was out so that the burner would not light. Inside the valve is enclosed a thermal tube of quartz, the length of which is altered by expansion or contraction through temperature change and this change of length acts upon a magnet, which, by action of a spring, serves to open or close a valve regulating the flow of gas to the burner in the heater. Thus when the pilot light is on, the quartz rod is heated and expands, opening the valve but if the pilot light is off, it contracts, closing the valve so that gas cannot escape through the burner of the heater. The length, or position of the rod must be adjusted so that action upon the magnet will readily open and close the valve and this is accomplished by turning the thermal *610 tube. It was found by Professor Amidon"s examination that the safety pilot valve would remain open after the pilot light was extinguished and after the rod had cooled, thus permitting gas to flow into the burner when the pilot light was not on, and it was the opinion of Professor Amidon that this maloperation of the safety valve of the heater was caused by the maladjustment of the thermal tube in the safety pilot unit. This was known in the testimony as "miscalibration" and Professor Amidon was of the opinion the miscalibration occurred before the valve left the factory of the Titan Valve & Manufacturing Company, its manufacturer, and continued to the time of the explosion and that if so the safety valve would not have worked at any time. He also testified that if, upon tests, the valve worked at any time within the period before the explosion, that would show it was properly calibrated and that it was not then defective and his opinion would be different.

Beeson would use a match to light the heater, placing it inside the heater, getting down on the floor, squatting on his knee. There was never a time during the fifty or sixty times he lit the heater that he smelled gas, nor did he ever notice any "whoosh" or any pop as though there was gas at or around the heater. The water heater was an American Standard Budget type heater sold by appellant. It was purchased by Beeson from Senecal, a local dealer, in February 1952, who purchased it from Wigman Company, who purchased it from appellant. Wigman Company was a plumbing and heating wholesaler and did not sell at retail. The water heater was made by American Radiator & Standard Sanitary Corporation through assembly of various parts, including the safety pilot valve procured from other manufacturers and was placed upon the market under the name of American Radiator & Standard Sanitary Corporation. In December 1952 Beeson had some difficulty with the heater and called Senecal, who came and put in the pilot control valve involved here and it worked all right for approximately five years. The purchasing agent for Wigman Company testified the valve may have come from Titan in Cleveland or it may have come from Buffalo plant of appellant. It has the name of Titan stamped upon it as is shown by the exhibit. The valve is used in a number of water heaters manufactured by other companies.

The question on which this case turns is whether or not on the record as made, appellant may be held liable for having furnished the defective safety pilot valve involved in this case as a replacement for another defective one which was a part of the water heater manufactured by it.

Appellant takes the position that it is not liable for any defect in the safety valve in question, that it merely purchased the item from the responsible manufacturer thereof and sold it in the original package as a separate item of merchandise without any reason or duty to inspect or test it.

Appellee"s case was tried upon the theory that a manufacturer which incorporates into its own product certain parts manufactured by another and distributes the finished product under its own name and which undertakes, in the ordinary course of its business, to supply replacements for use upon and in its manufactured product, is liable if by reason of its negligence in furnishing a defective replacement part damage is done. In other words, it is appellee"s theory that appellant would have been liable for any damage sustained by reason of its having incorporated a defective safety pilot valve in any water heater manufactured by it and distributed in its own name and that, by the same token, if it undertakes to replace a part of the heater which fails, it must exercise the same care it was bound to exercise when it installed the part which was replaced. Stating it differently, may the manufacturer of a water heater replace a defective part thereof with another part which is so defective as to cause great damage, and escape liability because the part which it supplied to *611 replace the original part was manufactured by another?

Appellant furnished its distributors and dealers with a catalogue for replacement parts which were designated by numbers. The type of pilot valve involved here was listed in that catalogue.

A jury verdict for plaintiff for $90,000 was followed by motions for judgment notwithstanding verdict and for a new trial alleging as grounds therefor that plaintiff failed to prove defendant negligent in that the testimony showed the safety pilot valve Exhibit 9 A was not on the heater as assembled by it, that it was manufactured by Titan Valve & Manufacturing Company, that if it was defective it was so when it left the Titan plant in Cleveland, that there was no evidence it ever passed through appellant"s hands, that there was no evidence it was furnished by appellant as a replacement and that appellant was merely a dealer in a chain of sales. Adverse rulings thereon and certain instructions given the jury and refusal to give others are assigned as error.

I. Appellant manufactured the water heater partly by assembling parts manufactured by others. It would be in no position to disclaim liability for the failure of the original safety valve placed therein. Standing in the position of manufacturer it was responsible for all parts of the heater as originally put out. "It was the duty of the defendant to use due care in constructing the heater in suit and to see that it was equipped with a safety pilot which would completely shut off gas from the burners when the pilot flame was out, so that the heater could safely be used for its intended purpose and would not be a menace to those who used it or were near it. It was also the duty of the defendant to make all the ordinary and necessary tests to ascertain whether the safety pilot was in proper working condition and properly adjusted before the heater left the factory. * * * The evidence shows that if a safety pilot is improperly adjusted, so that gas can flow to the burners when the pilot flame is out, that fact is easily discoverable by simple tests. If a manufacturer fails to discover it, the fault is his and not that of the ultimate purchaser or user of the dangerous heater." American Radiator & Standard Sanitary Corporation v. Fix, 8 Cir., 200 F.2d 529, 536; Willey v. Fyrogas Co., 363 Mo. 406, 251 S.W.2d 635; O"Rourke v. Day & Night Water Heater Co., 31 Cal. App. 2d 364, 88 P.2d 191; McPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696; Johnson v. Cadillac Motor Car Co., 2 Cir., 261 F. 878, 8 A.L.R. 1023; Alexander v. Nash-Kelvinator Corp., 2 Cir., 261 F.2d 187; Central Steel Tube Co. v. Herzog, 8 Cir., 203 F.2d 544; Hartmon v. National Heater Co., 240 Minn. 264, 60 N.W.2d 804; Lovejoy v. Minneapolis-Moline Power Implement Co., 248 Minn. 319, 79 N.W.2d 688; Ryan v. Zweck-Wollenberg Co., 266 Wis. 630, 64 N.W.2d 226.

In the case of American Radiator & Standard Sanitary Corporation v. Titan Valve & Manufacturing Co., 6 Cir., 246 F.2d 947, 950 plaintiff sought indemnity from defendant as supplier of a defective valve. The court said: "It is to be borne in mind that both parties were skilled manufacturers, with an equal opportunity to inspect the pilot valve. Because American was repeatedly installing the safety pilot in one of its heaters for the market it owned its customers the duty of reasonable care in determining whether the pilot installed was workable and suitable. Its failure to make the simple test which would have discovered the defect in the safety pilot involved constituted negligence even though it had no original obligation with reference thereto. (Citing cases.) * * * It (the district court) also found that American"s failure to discover the improper calibration constituted active negligence on the part of American." Indemnity was denied.

"The fact that a manufacturer purchased defective parts from another does not free *612 him from negligence in marketing a defective article, and he is under a duty to subject all parts so purchased to ordinary and simple tests, the nature of which must vary with the nature of the thing to be inspected; and, if he fails in this duty with respect to defects which could have been discovered by such tests, he is negligent and liable for resulting injuries." 65 C.J.S. Negligence § 100, page 632.

"The courts are now practically agreed that the manufacturer of an article inherently dangerous to life or limb is liable to a third person for personal injuries resulting from the failure of the manufacturer to exercise due care to protect anyone having proper occasion to use the article in the manner intended by using such precautionary means as the character of the article requires." 46 Am.Jur., Sales, Sec. 814, page 938.

Appellant"s contention that as regards the replacement valve, it was only an intermediary seller and as such had no duty to inspect the valve calls for further consideration. In Restatement of the Law, Torts, Sec. 388, page 1039, it is said: "One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so." See Driekosen v. Black, Sivalls & Bryson, Inc., 158 Neb. 531, 64 N.W.2d 88.

Restatement of the Law, Torts, Sec. 400, page 1086 states: "One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer."

Under Sec. 402 1948 Supplement to the Restatement of the Law appears this Comment: (b) "There is a clear distinction between the liability of a manufacturer and that of a vendor for harm caused by a chattel made by the former and sold by the latter. The manufacturer of a dangerously defective chattel is the creator of something which is foreseeably dangerous when it is used for the purpose for which it is manufactured. The constructing of the chattel defectively, with knowledge it is to be sent out to be used, is an unreasonably dangerous activity. On the other hand, the vendor who reasonably believes that the chattel he is selling is safe for use is not, in selling and delivering the chattel, doing anything which is foreseeably likely to cause harm. The slight risk inherent in the possibility the chattel may be defective is not sufficient to constitute an unreasonable risk. The burden on the vendor of requiring him to inspect chattels he reasonably believes to be free from hidden danger outweighs the magnitude of the risk that a particular chattel may be dangerously defective. Negligence is determined in the light of the facts known to the actor."

In the instant case appellant well knew that the valve was an imminently dangerous instrumentality if not properly calibrated and that, if not properly constructed and calibrated it might cause such damages as those suffered by appellee in this case, and thus we believe the jury could well find from the evidence that appellant was negligent *613 in not inspecting Exhibit 9 A and discovering its defects before sending it to Wigman Company. Appellant"s position was entirely different from that of the ordinary wholesaler or retailer who purchases something not imminently or inherently dangerous from a reliable manufacturer in full reliance upon the faithful performance by the manufacturer of its duty to be free from negligence. It tested carefully each completely assembled heater it marketed and had full knowledge of dangers inherent in defective safety pilot valves. Appellant had facilities for making adequate tests. They were not difficult to make. Danger of serious injury lurks in any defective valve. Appellant subjected other valves to an adequate test and it must be said it did so because it had no reason to believe and did not believe all such valves put out by Titan were safe to use. There is no evidence that it waived inspection and examination of Exhibit 9 A because it relied upon the competency of Titan. It appears rather that it subjected the valves to careful tests when placed in its water heaters, which it probably would not have done had it relied upon the quality of the valves when received from Titan. The damage sustained by appellee could reasonably have been foreseen and anticipated by appellant.

We hold that under the evidence in this case and the authorities cited appellant had a duty to inspect the valve unit and its failure to discover and correct or warn against the defective valve amounted to actionable negligence on its part.

II. Appellant insists the valve was sold merely for inclusion in the distributor"s stock and not as a replacement of the original valve on the heater. It is our opinion there was sufficient competent evidence in the record to justify the jury in finding otherwise. The safety pilot unit Exhibit 9-A was sold by appellant to Wigman Company which as a wholesaler handled appellant"s heaters and replacement parts exclusively. Wigman was not a manufacturer of water heaters and therefore a natural inference arises that when appellant supplied Wigman with such pilot valves it knew such items were for replacement purposes only and since Wigman handled only appellant"s water heaters it would be a natural though not conclusive inference that such parts were for replacement of similar parts on appellant"s heaters. When Senecal procured Exhibit 9-A from Wigman Co. he told them he wanted a thermocoupler unit for that particular heater. P. C. Cosner purchasing agent for Wigman Co. testified: "They are kept in stock only as replacement safety pilots for American Budget water heaters. We do not sell these safety pilots for installation in any other water heater. * * * Exhibit 15 is an invoice including one B114-22 pilot, dated December 5, 1952 to Senecal Lumber, Salix. *614 It is an invoice from our company for the purchase of one of these safety pilots on that date. Exhibit 16 is a credit memorandum to Senecal Lumber for a B114-22 pilot dated December 9, 1952."

Fred J. Mueller, employee of appellant testified: "This particular valve, Exhibit 9-A, was manufactured in large quantities for us. * * *, the valves that are assembled in our heater go through a functional test when the heater is tested as an integral unit, * * * When they are packaged by us we have put them through a functional test at the factory, the thermostat, the heat controls and the safety pilot or thermocoupler unit."

Cosner further testified: "On December 5, 1952, Senecal purchased the automatic safety pilot unit, Exhibit 9-A, from Wigman. It was delivered in the original carton, sealed. Subsequent to that date Senecal returned the pilot to Wigman. We wrote to American Radiator for instructions to return it. * * * We performed no tests on these valves at all in our warehouse before sending them out to the dealers. We relied on American to do that. * * * Senecal did not pay us for safety pilot unit 9-A. A charge is made for the replacement and full credit allowed when the pilot is returned. * * * We received a safety pilot back from Senecal and gave him credit for it. Our procedure for handling returned items is to write to American, advise them what the items are and request shipping instructions for the return and credit. They gave us shipping instructions for the return and gave us credit."

If it were appellant"s duty to inspect and test the pilot valves on the heaters it manufactured it would appear sound reasoning would require it likewise to test any replacements made by it. How logical would it be to say that appellant is negligent if it places defective safety valves on its heaters but is not negligent if it replaces such a valve unit with one which will not function safely and which it knows may cause serious damage? If it makes a replacement it should be substantially the equivalent of what was required of the part replaced.

That Exhibit 9-A was bought by Senecal as a replacement for one of appellant"s valves cannot be questioned. That appellant knew it was to be a replacement for some defective valve is equally certain. Having sold it for replacement purposes appellant should not be permitted to escape the direct consequences of the sale and replacement it brought about with full knowledge of the possible danger involved. Appellant knew if the safety valve on one of its units sold by Wigman went wrong it would be replaced by Wigman with a unit supplied by it, and owed a duty to see that such unit was reasonably safe for the purpose for which intended.

III. Appellant insists the jury should have been instructed that it had a right to rely upon the manufacturer of the valve for inspection tests. We do not agree it had such right. There is evidence in the record that Titan was a large manufacturer producing patented safety valves but we fail to find any evidence that its products were reliable or that appellant relied upon or had any reason to rely upon the efficiency of the valves Titan put out.

Mueller testified: "With respect to whom we rely on to make the tests before it is installed on the heater, we rely on Titan to furnish us the valve." (Emphasis supplied.) This statement cannot be construed as evidence appellant relied upon Titan to make the necessary tests. If appellant relied upon Titan to make the necessary tests to insure safe performance of the valves or had reason to rely thereon it should have offered some positive evidence to support such reliance. Appellee cites and appellant refers to American Radiator & Standard Sanitary Corporation v. Titan Valve & Manufacturing Company, supra. The facts there disclosed and now a matter of judicial record may have had something *615 to do with the further fact that appellant offered no evidence Titan was a reputable manufacturer or that appellant relied or had any right or reason to rely upon the adequacy of Titan products. The fact such important evidence was not offered suggests that it was not available.

IV. It is urged the jury should have been instructed that the use of the valve for approximately five years without mishap might be considered as evidence the valve was in safe working condition.

Mr. Amidon as an expert testified: "Q. Now is it possible, would it be possible for this heater to operate for as long as five years without ever needing the function of this safety valve? A. It is possible for this heater to operate indefinitely without the safety valve functioning. * * * Q. In other words, sir, it is your opinion that this heater could have functioned indefinitely without needing the function of this safety valve? A. That is right."

"Fact that automatic gas water heater had been successfully used by buyers for 23 months and fact that valve on heater had been inspected by retailer, did not, as a matter of law, relieve manufacturer of heater * * * from liability for death of buyer who was fatally injured by explosion allegedly caused by defective condition of valve, where effectiveness of the valve had not been tested by its use over the 23 month period." Willey v. Fyrogas Co., 363 Mo. 406, 251 S.W.2d 635, 636.

The jury was instructed that the plaintiff must prove by a preponderance of the evidence that Exhibit 9-A had never functioned as a safety control unit after its installation upon Exhibit 8. (The heater.) In response to special interrogatories the jury found the defect in calibration occurred at the Titan factory and that it was the proximate cause of the resulting injuries to plaintiff. It was told to consider all evidence, facts and circumstances proved upon the trial. We have carefully examined the instructions given and find no reversible error therein.

V. It is claimed the verdict for $90,000 was excessive and the result of passion and prejudice. At the time of the explosion the plaintiff was 25 years old and her life expectancy was 42.12 years. She had a husband and four small children. She was hospitalized 396 days and underwent 61 operations which included skin grafts. Twelve blood transfusions were required. Her pain was so intense that potent narcotics were used from the day of the accident, July 2, 1957 until May, 1958. There was evidence she will never be able to walk normally and will never regain full normal mobility of her knees, ankles or right hand. Fifty percent of the surface of her body was burned. It is claimed forty percent of her body suffered second and third degree burns. Her injuries have placed some limitations upon her normal activities as a wife, mother and homemaker. She will no doubt suffer some mental and physical pain and anguish in the future. It is impossible to place a monetary value upon the physical and mental damages done to the human body. Pain, suffering and mental anguish are not susceptible of dollar valuation. Money cannot completely compensate for pain and suffering or permanent physical injuries. As the only alternative, however, such compensation may be sought, from one who has negligently injured another, where more adequate compensation may not be had.

In considering damage awards, each case must depend upon its own facts, and *616 precedents are of little value. Ferris v. Riley, supra; Soreide v. Vilas & Co., 247 Iowa 1139, 1153, 78 N.W.2d 41, 50.

I am unable to agree with the conclusions reached by the majority and must dissent. The vital question in the case is whether the defendant furnished the replacement part as a manufacturer or merely as a vendor. The trial court in its instructions and by other rulings permitted the jury to find that it was in the position of a manufacturer. With this I disagree.

It is well settled that a manufacturer who uses parts made by another in assembling its finished product is responsible for defects in such parts if they cause injury. It is equally well settled that a mere vendor is ordinarily not so liable. The problem here is to determine in which category the defendant should be placed. No authority is cited for the proposition that an original manufacturer who furnishes replacement parts, made by another, is still a manufacturer as to those parts. The rule has never, until now, been so extended. The trial court in its instruction No. 18 told the jury "The undisputed record in this case discloses * * * that said Wigman Company had ordered and secured said safety pilot valve unit from defendant American Radiator and paid American Radiator for same;". P. C. Cosner, purchasing agent for Wigman Company, testified he could not say whether the unit in question came directly from Titan at Cleveland or from the defendant"s plant at Buffalo. The valves were shipped to them by enclosing each separately in a small box or carton, sealed. Valves similar to the one involved here were manufactured by Titan for several large companies in addition to the defendant. Each package bore the Titan number B 114-22, and the name "Titan" was embossed upon the valve itself.

The reason why a manufacturer is liable for defects in parts made by others but assembled by it and installed in its finished product is not difficult to understand. It is putting out the product as its own; it has an opportunity to inspect it, and has a duty to do so. But when the article is sold, free from defects, its liability should end. If it offers service to purchasers of its original product in the way of replacement parts made by another manufacturer, under the circumstances here I think it does so merely as a jobber or wholesaler. It is in no different position than Wigman or any other middleman. The task of inspecting the valves as they come from Titan, each sealed in its own container, would be an extremely, perhaps prohibitively heavy one. The point is well made at page 717, Restatement, Torts, 1948 Supplement, as follows: "The burden on the vendor of requiring him to inspect chattels he reasonably believes to be free of hidden danger outweighs the magnitude of the risk that a particular chattel may be dangerously defective."

The authorities cited by the plaintiff all deal with the original manufactured product. No case has gone so far as the majority takes us here; that is, so far as the *617 plaintiff"s brief goes, no court has heretofore held that an original manufacturer who furnishes a service of selling replacement parts made by another owes a duty to inspect, absent any reasonable basis for suspecting defects. Titan is, under the record, a large manufacturer of these valves; it furnished them to several other large companies. The defendant had a right to rely upon Titan to make tests, or otherwise furnish safe products. Division III of the majority opinion seems to shift the burden of showing negligence from the plaintiff to the defendant to show it was not negligent. It was not necessary for defendant to show it relied upon the manufacturer of the valve to make necessary tests; the law, as I understand it, gives it that right, and the burden should be upon the plaintiff to show a reason, if any there was, why it could not so rely.

I would hold the defendant in furnishing the replacement part was not a manufacturer, but merely a jobber or other intermediary between Titan, the actual maker of the valve, and the other middlemen and the ultimate purchaser. The majority is creating a precedent not supported by any decided authority or by logic. I would reverse with directions.

8th Circuit affirms denial of safety valve where defen­dant’s debrief was full of inconsistencies. (246) Prior to pleading guilty to drug trafficking, defendant gave an interview to an investigator. His statements had multiple inconsistencies, including his source for the drugs, so the government declined to move for safety valve relief from his ten-year mandatory minimum sentence, under 18 U.S.C. § 3553(f) and guideline § 5C1.2. The Eighth Cir­cuit affirmed, ruling that the district court properly relied on the investigator’s testimony in denying a safety valve reduction. U.S. v. Trujillo-Linares, __ F.4th __ (8th Cir. Dec. 28, 2021) No. 21-1301.

1st Circuit denies safety valve credit for lack of truth­fulness. (246) Defendant pleaded guilty to drug conspir­acy with a five-year mandatory minimum. The district court found that she was not eligible for the safety valve in 18 U.S.C. § 3553(f)(5) because she did not truthfully provide all information about the offense to which she pleaded guilty. The First Circuit affirmed, rejecting de­fendant’s attempt to characterize her misstatements as “unimportant blunders.” She also failed to explain the information on her cell phone. U.S. v. Martinez, __ F.4th __ (1st Cir. Aug. 13, 2021) No. 19-1667.

11th Circuit finds defendant’s possession of firearm barred safety valve relief. (246) At sentencing for drug trafficking, the district court denied a two-level “safety valve” reduction under § 5C1.2 because defendant pos­sessed a dangerous weapon during the drug trafficking offense. The Eleventh Circuit held that defendant failed to carry his burden to show that it was “clearly improb­able” that the firearm was connected to the drug offense. U.S. v. Carrasquillo, __ F.3d __ (11th Cir. July 14, 2021) No. 19-14143.

8th Circuit affirms denial of “safety valve” for failure to truthfully divulge information about offense. (246) Defendant was convicted of drug trafficking. At senten­cing, the district court denied her a two-level decrease in her offense level under § 2D1.1(b)(18), for failure to meet the requirements of the “safety valve” in § 5C1.2. The Eighth Circuit affirmed the district court’s finding that defendant had not “truthfully provided” all informa­tion about her offense. She said she was unaware what she was trafficking, but the trial evidence refuted that claim. U.S. v. Hernandez, __ F.3d __ (8th Cir. June 9, 2021) No. 20-1343.

1st Circuit says maritime drug trafficking is not sub­ject to safety valve. (246) Defendant pled guilty to drug trafficking on the high seas, in violation of the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503 & 70506. That offense carries a mandatory minimum. The First Circuit held that the MDLEA is not subject to the “safety valve” in 18 U.S.C. § 3553(f) and guidelines § 5C1.2, because the MDLEA is not a listed offense. U.S. v. De La Cruz, __ F.3d __ (1st Cir. May 26, 2021) No. 18-1710.

9th Circuit finds “and” in safety valve means “and,”  contrary to 11th Circuit. (246) A defendant is eligible for the safety valve in 18 U.S.C. § 3553(f), if he does not have “(A) more than 4 criminal his­tory points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense . . .” The government argued that the word “and” was disjunctive and therefore defen­dant’s prior 3-point vandalism conviction made him ineligible for the safety valve. Ninth Circuit held that the “and” in § 3553(f) is conjunctive, rejecting the govern­ment’s position and holding that defendant was eligible for the safety valve because he did not meet all three disqualifying criteria. In U.S. v. Garcon, __ F.3d __ (11th Cir. May 18, 2021) No. 19-14650, the Eleventh Circuit reached the opposite conclusion. U.S. v. Lopez, __ F.3d (9th Cir. May 21, 2021) No. 19-50305.

11th Circuit finds “and” in safety valve means “or,” contrary to 9th Circuit. (246) The safety valve in 18 U.S.C. § 3553(f) says a defendant is eligible if he does not have “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense. . . .” The district court interpreted “and” as conjunctive, and found defendant eligible for the safety valve because he did not have a prior violent offense. The government appealed, and the Eleventh Circuit held that the “and” in § 3553(f) is disjunctive and that defen­dant was not eligible for the safety valve. In U.S. v. Lopez, __ F.3d (9th Cir. May 21, 2021) No. 19-50305, the Ninth Circuit reached the opposite conclusion. U.S. v. Garcon, __ F.3d __ (11th Cir. May 18, 2021) No. 19-14650.

8th Circuit finds gun transaction barred eligibility for safety valve. (246) Defendant pleaded guilty to drug trafficking with a five-year mandatory min­imum sen­tence. He told law enforcement officers about a firearms transaction he had witnessed, and later testified for the defense at the retrial of a defendant for possession of those firearms. At sentencing, the district court found defendant was lying and therefore not eligible for the safety valve. Defendant argued that the firearms transac­tion was unrelated and should not have been considered. The Eighth Circuit agreed with the district court that the firearms transaction and the drug trafficking were part of a common scheme or plan, and thus he was not eligible for the safety valve. U.S. v. McVay, __ F.3d __ (8th Cir. May 6, 2021) No. 20-1169.

8th Circuit denies safety valve where defendant was not truthful. (246) Defendant arranged a 20-pound methamphetamine deal and pleaded guilty to conspiracy to distribute at least 50 grams of methamphetamine. After her arrest, defendant gave a proffer in which she said the methamphetamine deal was her first involvement in drug trafficking. At sentencing, the government argued that defendant was not eligible for the safety valve because she had lied during her proffer. The undercover agent testified that defendant had acted as if she were running the deal and used coded language in calls to other conspirators. The district court denied safety valve credit under 18 U.S.C. § 3553(f) and § 5C1.2(a), and the Eighth Circuit affirmed, finding it was reasonable for the district court to conclude that defendant was not being honest in her proffer. U.S. v. Rios, __ F.3d __ (8th Cir. Apr. 28, 2021) No. 20-1146.

11th Circuit says safety valve does not apply to Title 46 offenses, so no Fifth Amendment issue. (120)(246) Defendants were convicted at trial of transporting co­caine on the high seas in violation of 46 U.S.C. § 70506. Defendants argued that by forcing them to tell about their offense, the “safety valve” statute violated their Fifth Amendment privilege against self-incrimination. The Eleventh Circuit held that because Title 46 offenses are not eligible for the safety valve, it was unnecessary to ad­dress that concern. U.S. v. Cabezas-Montana, __ F.3d __ (11th Cir. Jan. 30, 2020) No. 17-14294.

11th Circuit upholds denying “safety valve” where defendant failed to disclose all drug deliveries. (246) At sentencing for possessing more than 500 grams of methamphetamine with intent to distribute, defendant sought a “safety valve” reduction under §§ 2D1.1(b)(17) and 5C1.2(a), arguing that he had answered all the government’s questions, provided information about the persons with whom he had conspired, and disclosed the identity of another person involved in the drug trafficking even though the government did not ask. The government opposed the reduction with evidence that defendant did not provide complete information about one of his cocon­spirators and failed to admit that he delivered drugs to the informant even though there was evidence of more deliveries. The district court denied the reduction, and the Eleventh Circuit affirmed. The court found that the government had adequately supported its claim that defendant had not disclosed all of the drug deliveries he made to the informant. U.S. v. Mancilla-Ibarra, __ F.3d __ (11th Cir. Jan. 15, 2020) No. 17-13663.

6th Circuit finds defendant eligible for safety valve despite codefendant’s firearm possession. (246) Defen­dant was subject to a mandatory minimum drug sentence. The district court found he did not qualify for a reduction under the “safety valve” in § 5C1.2 and 18 U.S.C. § 3553(f), because he possessed a firearm in connection with his offense and because he did not truthfully provide all information about the offense. The Sixth Circuit reversed, holding that the fact that defen­dant could fore­see a codefendant’s possession of a fire­arm did not pre­clude application of the “safety valve,” and that defen­dant’s failure to provide an explanation of a large amount of money found with the drugs in his room did not disqualify him from obtaining a sentence below the man­datory minimum. U.S. v. Barron, __ F.3d __ (6th Cir. Oct. 15, 2019) No. 18-5222.

7th Circuit says judge, not jury, finds facts relating to safety-valve eligibility. (120)(246) Defendant pleaded guilty to drug trafficking. The district court denied a safety-valve reduction from the mandatory five-year minimum sentence because defendant’s DNA was found on a firearm recovered from his residence and therefore defendant was not eligible for the safety valve. On ap­peal, defendant argued that the Jury Clause of the Sixth Amendment barred the district court from finding that he could not obtain the safety valve because he possessed the firearm in connection with the drug-trafficking offense. The Seventh Circuit held that the Sixth Amend­ment does not bar judicial fact-finding of safety-valve eligibility. U.S. v. Fincher, __ F.3d __ (7th Cir. July 9, 2019) No. 18-2520.

1st Circuit allows court to withhold safety valve from eligible defendant. (246) Defendant pleaded guilty to drug-trafficking. Although he faced a minimum manda­tory sentence of 120 months, he was eligible for the safe­ty valve in 18 U.S.C. § 3553(f). As a result, his sen­tenc­ing range was 108 to 135 months. Nevertheless, The dist­rict court declined to apply the safety valve and in­stead sentenced him to 135 months. The First Circuit held that it is not unreasonable to sentence a defendant eligible for the safety valve to a sentence above the mandatory mini­mum. U.S. v. Reyes-Gomez, __ F.3d __ (1st Cir. June 11, 2019) No. 17-1757.

7th Circuit denies safety valve where defendant was not truthful. (246) Law enforcement agents arrested de­fendant in his car with $40,000. A confidential source said that defendant was going to use the money to buy a kilogram of cocaine. Defendant pleaded guilty to drug trafficking and was subject to a mandatory minimum ten-year sentence. Defendant sought the safety valve in 18 U.S.C § 3553(f). One requirement for the safety valve is that a defendant “truthfully provide” all information about his offense. In a post-arrest interview, defendant said that the $40,000 was to buy a nice car. He denied any intent to purchase cocaine. After an evidentiary hearing, the district court found that defendant had not been truthful and denied a safety valve reduction. The Seventh Circuit held that defendant had not carried his burden of establishing eligibility for the safety valve. U.S. v. Collins, __ F.3d __ (7th Cir. May 14, 2019) No. 18-2149.

11th Circuit says “safety valve’s” exclusion of inter­national drug traffickers does not violate equal pro­tection. (120)(246) Under the “safety valve” in 18 U.S.C. § 3553(f) and § 5C1.2, a defendant convicted of a Title 21 offense can receive a sentence under the mandatory minimum. However, defendant was convicted of drug traf­ficking in international waters under the Maritime Drug Law Enforcement Act in Title 46, which is not listed in the “safety valve.” Defendant claimed that there was no rational basis to exclude Title 46 defendants from obtaining the safety valve and therefore that exclusion violated the Equal Protection Clause. The Eleventh Circuit found that Congress had legitimate reasons for excluding international drug traffickers from the safety valve and did not violate the Clause. U.S. v. Valois, __ F.3d __ (11th Cir. Feb. 12, 2019) No. 17-13535.

10th Circuit denies safety valve where firearms may have facilitated the offense. (246) When defendant was arrested for drug trafficking in a truck in a rural area, he possessed two loaded firearms which he admitted belong­ed to him. He was convicted of drug trafficking. At sen­tencing, the district court found that defendant was not eligible for the safety valve under § 5C1.2 because of the proximity of the firearms and their potential to facilitate the offense. On appeal, the Tenth Circuit affirmed, rejecting defendant’s argument that he did not possess the firearms in connection with the offense. The panel agreed that defendant’s possession of the firearms had the potential to facilitate the offense. U.S. v. Hargrove, __ F.3d __ (10th Cir. Jan. 2, 2019) No. 17-2102.

5th Circuit finds challenge to criminal history is not reviewable as plain error. (246)(870) Defendant was convicted of drug trafficking. For the first time on ap­peal, he argued that the district court’s improper calcu­lation of his criminal history made him ineligible for a “safety valve” reduction below the mandatory minimum, under 18 U.S.C. § 3553(f). The Fifth Circuit found no plain error, because defendant would not have been eligi­ble for the “safety valve” regardless, because he had a criminal history point for a conviction defendant did not chal­lenge. U.S. v. Cordell, __ F.3d __ (5th Cir. Oct. 19, 2018) No. 17-30937.

5th Circuit holds safety valve does not apply to viola­tions of 46 U.S.C. § 70503. (246) Defendant pleaded guilty to conspiracy to possess cocaine with intent to distri­bute, while aboard a vessel subject to the juris­dic­tion of the United States, in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) & (b) and 21 U.S.C. § 960. The district court denied defendant safety valve relief, finding that the safety valve provision applies only to the five offenses specified in 18 U.S.C. § 3553(f), and 46 U.S.C. § 70503 was not one of those offenses. The Fifth Circuit agreed. As a general matter this court has strictly limited the safety valve’s application to the statutes listed in § 3553(f). Although 21 U.S.C. § 960, which provides the penalties for § 70503, was enumerated in § 3553(f), § 70503 was not an “offense under” § 960; § 960 merely provided the penalties for § 70503. The court relied on U.S. v. Pertuz-Pertuz, 679 F.3d 1327 (11th Cir. 2012); U.S. v. Gamboa-Cardenas, 508 F.3d 491 (9th Cir. 2007) to hold that the safety valve does not apply to violations of § 70503. U.S. v. Anchundia-Espinoza, __ F.3d __ (5th Cir. July 27, 2018) No. 17-40584.

5th Circuit holds that defendant waived safety valve claim. (246)(855) Defendant pled guilty to drug charges. At sentencing, the court noted that without a role enhancement, defendant might be eligible for a safety valve reduction. The government explained that it could not make a safety valve request “right now” because defendant’s debrief had been cut short. The district court asked defendant if he would like more time to possibly qualify for the reduction. After conferring with counsel, defendant declined, and sought, instead, to proceed with sentencing. Defendant acknowledged that this meant that he would not qualify for either a safety-valve reduction or a §5K1.1 downward departure. The district court imposed a within-guideline sentence of 78 months. Nonetheless, defendant argued on appeal that the district court erred by not applying the safety valve reduction under §2D1.1(b)(17). The Fifth Circuit held that defendant waived his claim that court erred by not granting safety valve relief. U.S. v. Rodriguez-De la Fuente, 842 F.3d 371 (5th Cir. 2016).

8th Circuit says facts used to deny safety valve relief need not be proved to jury. (120)(246) The district court found defendant was not eligible for safety valve relief under 18 U.S.C. §3553(f) because he possessed firearms in connection with his drug offense, and there­fore the court imposed a mandatory minimum 120-month sen­tence under 21 U.S.C. §841(b)(1)(A). The Supreme Court in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013), held that any fact that establishes or increases a mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. The Eighth Circuit rejected defendant’s argument that Alleyne re­quires the government to prove that he possessed a firearm beyond a reasonable doubt. Facts that make a defendant ineligible for the safety valve do not create or increase a mandatory minimum—the safety valve simply allows for relieffrom a mandatory minimum in certain circumstances. U.S. v. Leanos, __ F.3d __ (8th Cir. July 11, 2016) No. 15-3248.

8th Circuit agrees that defendant possessed firearm and thus was not eligible for safety valve. (246) Defendant pled guilty to drug and firearm charges, and received a mandatory minimum 120-month sentence un­der 21 U.S.C. §841(B)(1)(A). The Eighth Circuit upheld the district court’s finding that defendant possessed a firearm in connection with the offense, and thus was not eligible for safety valve relief. Officers discovered the firearms in the house with the drugs, and defendant ad­mitted buying one firearm from a drug dealer for person­al protection. Defendant stipulated in his plea agreement that he possessed the two firearms and ammunition in the home. Also, he admitted that he purchased one of the firearms from a drug dealer for his own protection. Finally, defendant distributed drugs out of that house. U.S. v. Leanos, __ F.3d __ (8th Cir. July 11, 2016) No. 15-3248.

7th Circuit denies safety valve relief based on de­fen­dant’s statements during interview. (246) Defen­dant was convicted of drug charges and was sentenced to a mandatory minimum 120 months. During a safety valve interview, he claimed that he had never dealt drugs before, but needed money for his catering business, so he helped a confidential informant (the CI) find a supplier. After the interview, the government explained that it did not believe that a newcomer to the drug trade, without a reputation for trustworthiness, could broker a six-kilo­gram cocaine transaction. The district court refused to grant safety valve relief because it was unpersuaded that defendant spoke truthfully in his interview. The district court pointed to inconsistent and implausible statements, including that defendant did not know that he was aiding in a drug deal when he drove to the CI’s ranch; defen­dant’s use of a pseudonym when he first contacted the CI; and defendant’s assertion that he had never been a drug dealer before. The Seventh Circuit upheld the denial of safety valve relief, sharing the district court’s disbelief in defendant’s story. U.S. v. Rebolledo-Delgadillo, __ F.3d __ (7th Cir. Apr. 28, 2016) No. 15-2121.

8th Circuit says defendant did not show that she was entitled to safety valve relief. (246) Defendant argued for the first time on appeal that the district court erred in failing to provide her with safety valve relief. The Eighth Circuit found no plain error, ruling that defendant did not meet her burden of establishing that she qualified for safety valve relief. She could not establish that she ever truthfully provided the government with all information she had about the charged offense. Besides a brief inter­action with a trooper during a traffic stop when the drugs were found, defendant never provided additional infor­mation to the government. Accordingly, district court did not plainly err in failing to grant defendant safety valve relief. U.S. v. Morales, __ F.3d __ (8th Cir. Feb. 10, 2016) No. 15-1630.

3rd Circuit finds ineffective assistance for improper advice about safety valve. (245)(246)(880) Defendant pled guilty to distributing or manufacturing drugs near a school, in violation of 21 U.S.C. § 860(a). He later claimed that he pled guilty because counsel advised him that he was eligible for a reduced sentence pursuant to the “safety valve.” In a pro se habeas petition, defendant argued that his counsel’s erroneous advice about the safety valve constituted ineffective assistance. The Third Circuit agreed. The record clearly indicated that defen­dant’s counsel provided him with incorrect advice regard­ing the availability of the safety valve sentencing reduc­tion in 18 U.S.C. § 3553(f). In fact, counsel filed a motion for a reduction, but at sentencing, counsel with­drew this motion, because U.S. v. McQuilkin, 78 F.3d 105 (3d Cir.1996) held that § 3553(f) did not apply to convictions under 21 U.S.C. § 860. Counsel’s lack of familiarity with an 18-year-old precedent and his erron­eous advice, demonstrated performance below prevailing professional norms. The plea colloquy did not remedy counsel’s mistake, since the judge made several state­ments that reinforced counsel’s incorrect advice. Defen­dant also showed that but for counsel’s error, he would not have pled guilty and insisted on going to trial. U.S. v. Bui, __ F.3d __ (3d Cir. Aug. 4, 2015) No. 11-3795.

7th Circuit denies safety valve relief based on co-con­spirators’ gun possession. (246) Defendant received a §2D1.1(b)(1) enhancement based on her co-conspirators’ possession of a firearms. Possession of a firearm gener­ally disqualifies a defendant from safety-valve protection. See §5C1.2(a)(2). Defendant argued for the first time on appeal that her receipt of the firearm enhance­ment did not disqualify her from receiving safety-valve relief because she neither possessed a gun herself nor induced another to do so. Other circuits have concluded that the scope of the safety-valve’s “no firearms” condi­tion is narrower than the firearms enhancement, and does not impute responsibility for the acts of co-conspirators. Nonetheless, the Seventh Circuit held that the district court’s refusal to grant defendant safety valve relief was not plain error. Defendant raised a question of first impression in the circuit, and courts rarely find plain error on a matter of first impression. Given the lack of guiding circuit precedent, the district court could not be faulted for failing to raise and apply the safety valve sua sponte. U.S. v. Ramirez, __ F.3d __ (7th Cir. Apr. 15, 2015) No. 13-1013.

10th Circuit requires court to consider safety valve information provided for first time on remand. (246) Defendant was convicted of drug charges. He success­fully appealed, and the case was remanded for resenten­cing. At resentencing, the district court denied his request for safety valve protection, holding that 18 U.S.C. §3553(f) did not apply because defendant failed to make the disclosures to support a reduced sentence before his initial sentencing hearing. The Tenth Circuit held that when a defendant provides information to the govern­ment for the first time on remand, but before the resen­tencing hearing, the plain text of §3553(f) requires the district court to consider that information. The district court interpreted the statute’s requirement that the defen­dant provide information “not later than the time of the sentencing hearing,” to exclude disclosures made before a resentencing hearing. However, this phrase clearly and unambiguously referred to “the sentencing hearing” at issue, whether it was an initial, second, or subsequent sentencing hearing. Nothing in the text of §3553(f)(5) suggested that the phrase, “not later than the time of the sentencing hearing,” should be read to include an extra word—”not later than the time of the initial sentencing hearing.” U.S. v. Figueroa-Labrada, __ F.3d __ (10th Cir. Mar. 24, 2015) No. 13-6278.

7th Circuit denies safety valve relief where defendant did not tell all and threatened informant. (246) Defen­dant argued that his cooperation with law enforcement after his arrest qualified him for “safety valve” relief from the statutory minimum. See 18 U.S.C. §3553(f); U.S.S.G. §5C1.2. A DEA agent testified that the infor­mation defendant provided after his arrest was helpful, and defendant maintained that he had no additional information about the offense. However, the district court found that defendant’s cooperation was not a full and truthful proffer. The Seventh Circuit upheld the denial of safety valve credit, finding the district court gave a nuanced explanation of why it found that defendant not tell all information he knew. Moreover, defendant did not assist the investigation during the two years that passed between his initial post-arrest statements and his sentenc­ing, which undermined his assertion of full, good faith cooperation. There was also evidence that defendant threatened death to the informant and his family, which disqualified him from safety-valve relief. U.S. v. Ortiz, __ F.3d __ (7th Cir. Jan. 12, 2015) No. 13-3748.

1st Circuit says safety valve requirements are man­datory despite Booker. (246) Defendant argued that the district court erred in concluding that it had no authority to sentence him below the mandatory minimum sentence because he did not satisfy all of the safety valve factors in 18 U.S.C. § 3553(f). He argued that because the safety-valve requirements reference the Guidelines and Booker made the Guidelines advisory, then the safety valve requirements were also advisory. The First Circuit noted that this argument has been rejected by all the courts of appeals that have considered it. U.S. v. Zayas, 568 F.3d 43 (1st Cir. 2009).

1st Circuit says prior drug trafficking was relevant conduct or “safety valve” was improper. (246) Defendant pled guilty to conspiring to transport cocaine in two separate criminal cases. One case involved 20 kilos of sham cocaine that defendant received from a cooperating agent. The other case arose from 30 kilos of cocaine that defendant and his crew placed on an airplane bound for New York. He pled guilty and was sentenced first for his role in the sham cocaine smuggling scheme. At the second proceeding, the court declined to consider the sham cocaine as relevant conduct in calculating the total quantity of drugs, and found that he was eligible for the “safety valve” in §5C1.2 as a first offender. The First Circuit reversed, noting that unless the prior sham cocaine offense were included as relevant conduct in the second offense, his prior conviction would count as more than one criminal history point; making him ineligible for the “safety valve.” U.S. v. Jaca-Nazario, 521 F.3d 50 (1st Cir. 2008).

1st Circuit holds that court did not have discretion to reduce criminal history points in order to make defendant eligible for safety value relief. (246) Defendant received a 10-year mandatory minimum sentence following his guilty plea to drug charges, in violation of 21 U.S.C. § 841(a)(1). Defendant contended that his sentence should be vacated because the district court erroneously believed it lacked discretion to qualify defendant for safety valve protection, 18 U.S.C. § 3553(f), by lowering defendant’s crimin­al history category to I. The First Circuit held that the criminal history calculation for purposes of safety valve eligibility is non-discre­tionary. The court properly found that it was unable to reduce his criminal history score to make him eligible for safety valve protection. Booker did not change this analysis. As other circuits have held, Booker did not excise and render advisory the require­ment of § 3553(f) that a defendant have zero or one criminal history points in order to qualify for safety valve relief. U.S. v. Hunt, 503 F.3d 34 (1st Cir. 2007).

1st Circuit denies safety valve based on testimony of experienced agent that drug smugglers must have been aware of drugs. (246) Defendants were crew members of a boat smuggling drugs into the U.S. The district court refused to grant them safety valve protection. The First Circuit reversed as to the first defendant, since the court failed to make even conclusory statements as to why he did not merit safety-valve relief. At the other two defendants’ joint hearing, however, the court credited the testimony of a special government agent that these defendants had not disclosed everything they knew about the drug smuggling conspiracy. It was “illogical” and “incredible” to believe that an international drug smuggler would place $7.5 million of drugs on a vessel traveling in international waters without having some type of voluntary control over the vessel’s crew. This testimony, based on the agent’s years of experience in the field of drug interdiction, provided a sound grounding for the court’s denial of the safety valve. U.S. v. Bravo, 489 F.3d 1 (1st Cir. 2007).

1st Circuit upholds finding that defendants had not truthfully provided information about offense. (246) The Coast Guard arrested defen­dants in a fishing vessel containing 5,000 pounds of marijuana. At trial, defendants testified that they had been recruited to participate in a fishing expedition and that when they learned that the boat actually contained marijuana, they were forced at gun point to serve as its crew. A jury rejected this defense and convicted defendants of possession with intent to distribute marijuana and of conspiracy to possess with intent to distribute marijuana. At sentencing, the district court credited the testimony of a federal law enforce­ment agent that defendants’ story was illogical and incredible. Based on the agent’s testimony, the court found that defendants had not truthfully provided the government with all information concern­ing the offense and denied them a safety valve reduction. The First Circuit held that the district court did not clearly err in finding that defendants had not met the safety valve require­ment that they truthfully provide all information concerning their offense. U.S. v. Bravo, 480 F.3d 88 (1st Cir. 2007).

1st Circuit holds that finding that defendant was eligible for safety valve reduction did not preclude firearm enhancement. (246) The district court applied a two-level sentencing enhancement for firearm possession under § 2D1.1(b)(1), since defendant acknow­ledg­ed that police had found a loaded handgun in his apartment, and that defendant stated that he bought the gun for personal protection. The court also applied a two-level reduction under the “safety valve” provision of U.S.S.G. § 5C1.2, despite its requirement that the defendant show that he was not in possession of a firearm. The First Circuit found nothing contradictory about applying both the firearm enhancement and the safety valve reduction, since different standards apply for each. The application of the safety valve requires the defendant to establish by a prepon­derance of the evidence that he did not possess the firearm in connection with the offense. For the firearm enhancement, the government has the initial burden of establishing that a firearm possessed by the defendant was present during the commission of the offense. After that, the burden shifts to defendant to persuade the court that a connection between the weapon and the crime is clearly improbable. Defendant’s failure to meet the higher burden of proof required for the firearm enhancement did not preclude the defen­dant from meeting the lower burden of proof in the safety valve provision. U.S. v. Anderson, 452 F.3d 87 (1st Cir. 2006).

1st Circuit holds that Booker does not give court authority to disregard criminal history to make defendant eligible for safety valve. (246) Defendant’s plea agreement provided that if defendant met “all” of the requirements of the “safety valve” of U.S.S.G. § 5C1.2, he would receive a two-level reduction under § 2D1.1(b) (6). The First Circuit agreed that defendant was not entitled to safety value relief because he did not meet all of the requirements – he had three criminal history points. The panel rejected defendant’s argument that the court had the discretion to disregard the criminal history computation called for under the guidelines. Even if this argument were not foreclosed by defen­dant’s stipulation in the plea agreement that his sentence would be determined according to the guidelines, his argument failed as a matter of law because there can be no Bookererror where a defendant is sentenced to a statutory minimum based on admitted facts. Booker does not give a court discretion to disregard an otherwise appli­cable statutory minimum. U.S. v. Narvaez-Rosario, 440 F.3d 50 (1st Cir. 2006).

1st Circuit says finding that defendant did not establish safety valve entitlement was not subject to Booker challenge. (246) The district court found that defendant was not entitled to safety valve protection under 18 U.S.C. § 3553(f) (2) and § 2D1.1(b)(7). De­fen­dant argued that the court violated the Sixth Amendment by crediting evidence that the police found 11 firearms in defendant’s apartment during their execution of a search warrant. The First Circuit held that this safety valve finding need not be decided by a jury or admitted by the defendant under Booker. The burden of proof rests with the defendant to estab­lish an entitlement to safety valve protection. The district court’s finding that defendant failed to establish that he did not possess a firearm in connection with the offense of conviction was not subject to a Bookerchallenge. U.S. v. Morrisette, 429 F.3d 318 (1st Cir. 2005).

1st Circuit holds that Booker did not entitle defendant to resentencing so that he could comply with safety valve. (246) Defendant sought resentencing on the ground that the Sixth Amendment required the facts determining compliance with the safety valve to be found by a jury rather than by a judge. Because he did not understand that require­ment when he decided not to participate in the safety valve regimen, defen­dant argued that he would have made a different decision if he had known that his entitlement to a sentence reduction would have to be found by a jury by a reasonable doubt. The First Circuit rejected this claim. A change in the law does not warrant vacating a sentence so that the defendant may reconsider his initial decision not to pursue a safety valve reduction, just as a change in the law does not warrant vacating a guilty plea so that the defendant may choose to face trial instead. Defendant was not entitled to resentencing under Booker, because he did not preserve his Booker claim and failed to demon­strate a reasonable probability of a lower sentence under an advisory guideline regime. U.S. v. De Los Santos, 420 F.3d 10 (1st Cir. 2005).

1st Circuit finds insufficient evidence of constructive possession of hidden firearm. (246) The district court found that defendants were ineligible for safety valve protection under § 5C1.2 because they each possessed a .22 caliber handgun during the course of the conspiracy. Defendants argued that proof of actual possession was required to bar application of the safety valve, and even if constructive possession was sufficient, there was inadequate evidence to establish such possession. The First Circuit held that a defendant who has constructively possessed a firearm in connection with a drug trafficking offense is ineligible for the safety valve provisions in § 5C1.2. However, ther