Scope of Safety-Valve Proffer for Mexican Mafia Member

In March of 2018, the United States Attorney General’s office filed a multi-count indictment against numerous purported members of an alleged initiated by the Mexican Mafia prison gang to commit various crimes within the Los Angeles County Jail system, including distribution of controlled substances.

Mr. Martin Salazar was named as one of the defendants for conspiring to possess and distribute heroin and methamphetamine into the Los Angeles County Jail after he was found in possession of 2.37 grams of heroin and 7.75 grams of methamphetamine when deputies did a cell search of his cell.

Mr. Salazar subsequently agreed to plead guilty to conspiring to distribute controlled substances in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(viii).  Salazar acknowledged that the statutory minimum punishment for his crime was five years imprisonment.

However, Mr. Salazar had a lengthy criminal history when he faced sentencing.  With a total offense level of 21 and a criminal history category of VI, Salazar scored a guidance imprisonment range of 77 to 96 months’ imprisonment.  U.S. Sentencing Guidelines Manual § 5A, well above the mandatory minimum of 60 months.

In his sentencing memorandum, Mr. Salazar argued that he was entitled to safety-valve relief from the five-year mandatory minimum  because he met all the criteria in 18 U.S.C. § 3553(f)(1)-(5).  If relieved of the mandatory five-year minimum, Salazar argued he would be also be entitled to seven points of downward departure, resulting in a sentencing range of 37 to 46 months.  U.S.G.A. § 5A.

Safety-valve relief under § 3553(f) applied to certain enumerated drug offenses and requires the district court to “impose a sentence pursuant to [the sentencing] guidelines . . . without regard to any statutory minimum sentence” if the defendant meets the criteria listed in § 3553(f)(1) – (5). 

Relevant to Mr. Salazar, subsection (f)(5) states: [the district court must find that] “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.”

The U.S. Attorney argued that Salazar was not eligible for safety-valve relief because he had not yet “truthfully provided to the Government all information and evidence [he had] concerning the offense or offenses that were part of the same course of conduct or a common scheme and plan” as required by § 3553(f)(5).

At the sentencing hearing, U.S. District Court judge George Wu sought further clarification of the precise nature of Salazar’s crime and his level of culpability, notwithstanding its review of the presentencing materials and his plea agreement.  Mr. Salazar’s attorney argued that Mr. Salazar’s participation “began and ended the same day” and that Mr. Salazar has previously offered to make a written proffer, but the government never responded.

Although the U.S. Attorney did not dispute this claim, the attorney said Salazar had not met his obligation to truthfully proffer all that he knew.  The U.S. attorney suggested a continuance of sentencing so that Mr. Salazar could provide a written proffer and that so it had an opportunity to challenge the proffer’s veracity.

Judge Wu then offered a continuance for Mr. Salazar to draft a written proffer, but Mr. Salazar rejected this offer, saying the government knew everything about the offense from his post-arrest statement, recorded phone calls and the plea agreement.

Judge Wu did not agree that Mr. Salazar’s sentencing memorandum could suffice as a proffer, explaining “a proffer is a proffer.”  The judge then sentenced Mr. Salazar to 42 months in federal prison.

The U.S. Attorney’s Office appealed to the U.S. Court of Appeals for the Ninth Circuit in Pasadena.

The Ninth Circuit rejected the sentence, finding that Judge Wu had sentenced Mr. Salazar in accordance with safety-valve provisions when Mr. Salazar had not complied with the statutory proffer requirement.  Put another way, the Ninth Circuit did not find there was a “futility exception” to having a prisoner engage in the proffer procedure even if the information he may provide is already known from other sources or that the information he would provide would not be relevant.  In short, for the safety-valve provisions to apply, Mr. Salazar still had to provide a proffer, regardless of whether it would be redundant.

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