by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit reversed the judgment of a district court that denied safety-valve relief under U.S.S.G. §§ 5C1.2 and 2D1.1(b)(17) to Nestor Barron.

In July of 2017, law enforcement officers executed a search warrant at the residence of Lara Salas in Lexington, Kentucky. They found Barron in bed in an upstairs bedroom with an unidentified woman. Officers found a black duffle bag under the bed that contained six bricks of cocaine and $105,375 in cash. Also found was a box containing 26 rounds of nine-millimeter ammunition. In the downstairs bedroom, police found Salas in bed. Agents found a Jiminez 9-millimeter pistol in the drawer of a dresser located within arm’s reach of the bed. The pistol was loaded with ammunition of the same type as that found upstairs. Salas stated he owned the firearm and had purchased it for safety.

Barron told Special Agent Jason Moore that he thought the bricks were six kilos of cocaine and he acknowledged his fingerprints might be on the drugs. Barron said he was paid $150 by Salas to pick up the cocaine on a street in Lexington. He said he met with a black male who was traveling from Cincinnati, Ohio, and he gave a description of the man. Barron was from Los Angeles, but he had stayed with Salas for about a month because they were friends and had known each other for years.

Barron eventually pleaded guilty to conspiracy to distribute five kilograms or more of cocaine. The plea agreement contemplated a base offense level of 30 but observed that a two-level decrease may be warranted if Barron qualified for safety-valve relief. Since he had no prior criminal history, his criminal history category was 1. Barron’s Guidelines range was 87 to 108 months, but pursuant to 21 U.S.C. § 841(b)(1)(A), he faced a mandatory minimum sentence of 120 months unless the court determined he qualified for application of safety-valve relief.

The court found that Barron didn’t meet the criteria for application of the safety valve because he had aided and abetted Salas in the possession of a weapon by assisting Salas in acquiring ammunition and because Barron did not provide truthful information to the Government regarding the conspiracy. The court further found that it was reasonably foreseeable to Barron that another member of the conspiracy would have possessed a firearm and thus applied U.S.S.G. § 2D1.1(b)(1)’s two-level increase. Consequently, the district court sentenced Barron to the 10-year mandatory minimum. Barron appealed.

The Sixth Circuit observed that “Congress became concerned that the inflexibility of statutory mandatory minimum sentences was resulting in unjust punishments in some cases” and enacted 18 U.S.C. § 3553(f). United States v. Adu, 82 F.3d 119 (6th Cir. 1996). In response, the Sentencing Commission promulgated U.S.S.G. § 5C1.2. United States v. Bazel, 80 F.3d 1140 (6th Cir. 1996). Section 5C1.2 provides relief from the mandatory minimum if a defendant meets five criteria summarized as follows: (1) he does not have more than one criminal history point, (2) he did not possess a firearm or other dangerous weapon (or induce another participant to do so), (3) his offense did not result in death or serious bodily injury to another person, (4) he was not an organizer, leader, manager, or supervisor of others in the offense, and (5) no later than the time of sentencing, he truthfully provided to the Government all information and evidence he had concerning the offense.

A defendant bears the burden of proving, by a preponderance of the evidence, that he meets “each and every criterion” to entitle him to safety-valve relief. Bazel. If the defendant meets his burden, application of the safety valve is mandatory, and he is to be sentenced within his applicable guideline range without regard to the statutory mandatory minimum. United States v. Patterson, 145 F. App’x 988 (6th Cir. 2005).
It was undisputed that Barron satisfied the first, third, and fourth criteria of the safety valve. As for criterion two, the fact that the district court found that Barron foreseeably should have known Salas possessed a firearm (due to the quantity of cocaine and money involved) did not bar Barron from relief. United States v. Bolka, 355 F.3d 909 (6th Cir. 2004). Allowing Barron to be charged with Salas’ gun under § 5C1.2 would be “contrary to the congressional policy underlying the mandatory minimum safety valve” which is “to permit courts to sentence less culpable defendants to sentences under the guidelines instead of imposing mandatory minimum sentences.” United States v. Pena-Sarabia, 297 F.3d 983 (10th Cir. 2002). The district court’s finding that Barron had aided and abetted Salas by purchasing the ammunition found in the upstairs bedroom had no evidentiary support. No evidence in the record pointed to Barron purchasing the ammunition. Mere speculative inferences are never allowable and cannot be regarded as evidence. Goodman v. Simonds, 61 U.S. 343 (1857). Regarding the fifth criterion, the Government conceded Barron provided information but argued he misled the Government by telling law enforcement he resided with Salas “for approximately a month,” when he had resided there for a little over six weeks. The Court ruled any difference in time between “a little over a month” and a month and three weeks was not material and could not prevent Barron from safety-valve relief.

Accordingly, the Court vacated Barron’s sentence and remanded with instructions to apply the provisions of the safety valve without regard to the 10-year mandatory minimum sentence. See: United States v. Barron, 940 F.3d 903 (6th Cir. 2019).

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