Published on:

The safety valve sentencing reduction does not apply to Title 46 U.S.C. §70503 for trafficking on the high seas

Pertuz-Pertuz pleaded guilty to a drug trafficking on the high seas. Specifically, his offense involved a conspiracy to distribute five or more kilograms of cocaine while aboard a vessel subject to the U.S. jurisdiction, in violation of Title 46 U.S.C. §70503(a)(1). In U.S. v. Pertuz-Pertuz, the 11th Circuit said the defendant was not eligible for the safety valve sentence reduction. Congress enacted 18 U.S.C. §3553(f), the safety valve statute, giving defendants relief from the mandatory minimum penalties found under the federal drug laws. If the defendant met the criteria, he could receive a reduction of his sentencing guidelines range and receive a sentence below the mandatory minimum sentence. To qualify, the defendant must have no criminal convictions, no leadership role, and must not possess a firearm as part of the offense.

At his sentencing, his guideline calculation which the sentencing judge adopted gave him a two-point reduction under §5C1.2(a)(1-5) for qualifying under the safety valve. He also received a three-level reduction for accepting responsibility and timely notifying the authorities of his intent to plead guilty. The language of §70503 refers to §960 for the penalty provision when there is a §70503 violation. Normally a defendant who meets the criteria set forth in the safety valve statute would be eligible for an additional two level reduction in the sentencing guidelines. The safety valve statute specifically states that the safety valve provision applies only to the five specified offenses listed in §3553(f).

The statute Pertuz-Pertuz was charged with and to which he pleaded guilty is not listed in the safety valve statute. The sentencing court denied the Defendant’s request for a safety valve reduction because §3553(f). Without the safety valve relief, Pertuz-Pertuz faced a 10 year mandatory sentence because his offense involved trafficking in five or more kilograms of cocaine. Though the defendant’s guideline range would be 108-135 months in prison with safety valve relief but because the sentencing court found the safety valve did not apply to the §70503, he faced the 10 year penalty of 21 U.S.C. §960.

The 11th Circuit found the terms of the safety valve provision specifically reference only 21 U.S.C. sections 841, 844, 846, 960, and 963. The 11th Circuit took a strict interpretation approach to this issue. “The selection of these five statutes reflects and intent to exclude others.” “The plain statutory text indicates that the safety valve does not apply.” Section 70503 was not specifically listed in § 3553(f).

The defendant argued he is entitled to be sentenced under the safety valve statute because Title 46 offenses, for which he was convicted, reference the penalty provision of 21 U.S.C. § 960, and 960 is referenced in the safety valve statute. The court of appeals rejected the defendant’s reasoning. The 11th Circuit found that § 3553(f) refers to an offense under § 960 and not to an offense penalized under section § 960. Furthermore, it found that section § 960 lists unlawful acts that actually do qualify as offenses under § 960, but no Title 46 offenses appear in the § 960 list.