United States Court of Appeals

For the First Circuit

No. 18-1710

UNITED STATES OF AMERICA,

Appellee,

v.

ÁNGEL DE LA CRUZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch, Selya, and Kayatta,

Circuit Judges.

Kevin E. Lerman, with whom Eric Alexander Vos, Federal Public 

Defender, Vivianne M. Marrero, Assistant Federal Public Defender, 

Supervisor, Appeals Section, and Franco L. Pérez-Redondo, Research 

& Writing Specialist, were on brief, for appellant.

Antonio L. Pérez-Alonso, Assistant United States Attorney,

with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and 

Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, 

Appellate Division, were on brief, for appellee.

May 26, 2021
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LYNCH, Circuit Judge. Ángel De la Cruz and two others 

were intercepted by the U.S. Coast Guard while smuggling drugs on 

a small ship in the waters north of Puerto Rico. The Coast Guard 

seized a large amount of cocaine from the ship and arrested De la 

Cruz and the other two crewmembers. They were brought to Puerto 

Rico and charged by indictment with several drug-related offenses, 

including violations of the Maritime Drug Law Enforcement Act 

("MDLEA"), 46 U.S.C. §§ 70503 and 70506. The MDLEA offenses

carried a mandatory minimum sentence of ten years' imprisonment. 

See id. § 70506(a)-(b); 21 U.S.C. § 960(b)(1)(B) (2018).

De la Cruz pleaded guilty to all counts. As to 

sentencing, he argued that he qualified for "safety valve" relief,

which authorizes a district court to impose a sentence below the 

statutorily prescribed mandatory minimum sentence for certain 

enumerated offenses if the court makes several specific factual 

findings at sentencing. See 18 U.S.C. § 3553(f) (2018). The 

district court held that De la Cruz was ineligible for safety valve 

relief for his MDLEA offenses because they were not among those 

offenses specifically enumerated in the safety valve statute, and 

it sentenced him to the mandatory minimum sentence of ten years' 

imprisonment under the MDLEA. We now join the majority of circuits

in holding that MDLEA offenses were not safety-valve eligible under 

the then-applicable safety valve provision and so affirm.
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I.

Because De la Cruz pleaded guilty, "we draw the facts 

from the plea colloquy, the unchallenged portions of the 

presentence investigation report, and the transcript of the 

sentencing hearing." United States v. Padilla-Colón, 578 F.3d 23, 

25 (1st Cir. 2009).

On December 10, 2017, the U.S. Coast Guard detected a 

suspicious vessel traveling at a high rate of speed north of 

Fajardo, Puerto Rico. A Coast Guard team intercepted and boarded 

the ship and found three Dominican nationals on board, including 

De la Cruz, as well as fifty-three bales of suspected narcotics. 

The government of the Dominican Republic did not claim nationality 

over the ship. De la Cruz does not question that both he and the 

ship were subject to U.S. jurisdiction.

The Coast Guard team conducted field tests of the bales 

of suspected narcotics and they tested positive for cocaine. All 

three crewmembers were arrested and brought to Puerto Rico. About 

1,325 kilograms of cocaine were seized from the ship.

De la Cruz was indicted on one count of conspiracy to 

possess with intent to distribute five kilograms or more of a 

controlled substance on board a vessel subject to the jurisdiction 

of the United States in violation of the MDLEA, 46 U.S.C. §§ 70503 

and 70506; one count of aiding or abetting the MDLEA offense in 

violation of §§ 70503 and 70506 and 18 U.S.C. § 2; and one count 
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of conspiracy to import into the United States five kilograms or 

more of a controlled substance in violation of 21 U.S.C. §§ 952, 

960, and 963.

In March 2018, De la Cruz entered a straight plea of 

guilty to all three counts. He argued for a safety valve 

reduction, and the government opposed and argued that he was 

ineligible for safety valve relief as a matter of law because the

applicable safety valve provision did not apply to MDLEA offenses. 

The government argued that Congress had deliberately chosen in the 

text of the safety valve statute to exclude MDLEA offenses from 

those eligible for safety valve relief by explicitly including 

other offenses in the safety valve statute, but not MDLEA offenses.

The district court agreed with the government and ruled

that De la Cruz was ineligible for safety valve relief in a written 

memorandum and order in June 2018. The district court relied on 

a previous decision it had written in which it had held that the 

plain language of the safety valve statute did not apply to 

offenses under the MDLEA and that the history of the MDLEA and 

safety valve statute and case law from other circuits further 

confirmed that conclusion. See United States v. Espinal-Mieses, 

313 F. Supp. 3d 376, 381-85 (D.P.R. 2018). The court went on to 

conclude that even though De la Cruz had also been convicted of 

non-MDLEA offenses, his sentence could not fall below the mandatory 

minimum of ten years' imprisonment for the MDLEA offenses. De la 
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Cruz filed a motion for reconsideration, which the district court 

denied.

At the sentencing hearing in July 2018, the district 

court denied De la Cruz's request for a minor role reduction.1 

Nonetheless, it varied downward and imposed the mandatory minimum 

sentence of ten years' imprisonment as to each count to be served

concurrently.

De la Cruz timely appealed his sentence.

II.

De la Cruz makes two primary arguments: (1) that the 

district court erroneously determined that the 18 U.S.C. § 3553(f) 

safety valve provision did not apply to MDLEA offenses such that 

it could not sentence him below the ten-year mandatory minimum; 

and (2) that the court erred in denying the minor role reduction.2

1 The court did apply a two-level reduction to De la Cruz's 

offense level under United States Sentencing Guidelines Manual

§ 2D1.1(b)(17), to which both the defendant and the government 

agreed. Under the then-applicable 2016 Guidelines, § 2D1.1(b)(17) 

provided for a two-level reduction if the defendant met the five 

fact-based criteria under 18 U.S.C. § 3553(f), even if the 

defendant did not qualify for the safety valve relief authorizing 

a sentence below the applicable statutory minimum. See U.S. Sent'g 

Guidelines Manual § 2D1.1(b)(17) (U.S. Sent'g Comm'n 2016); id.

§ 5C1.2(a)(1)-(5); see also United States v. Warnick, 287 F.3d 

299, 303-04 (4th Cir. 2002) (applying a previous version of the 

two-level reduction).

2 All references to § 3553(f) and the safety valve 

provision are to the previous version in effect at the time of the 

defendant's sentencing, unless otherwise stated.
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The parties agree that, because the district court imposed the 

minimum statutory sentence required under the MDLEA, De la Cruz's

challenge to the denial of the minor role reduction is moot if 

this Court rejects his safety valve argument.3

The government does not challenge De la Cruz's assertion 

that, if eligible, he would meet the five fact-based criteria for 

safety valve relief. We review de novo the issue of whether the 

safety valve applied to MDLEA offenses because it is a purely legal 

issue of statutory interpretation. See Padilla-Colón, 578 F.3d at 

29. 

Three of our sister circuits have already decided this 

precise issue and held that the safety valve provision did not 

apply to offenses under the MDLEA under the plain language of the 

statute. See United States v. Anchundia-Espinoza, 897 F.3d 629, 

633-34 (5th Cir. 2018); United States v. Pertuz-Pertuz, 679 F.3d 

1327, 1328-29 (11th Cir. 2012); United States v. Gamboa-Cardenas, 

508 F.3d 491, 496-502 (9th Cir. 2007). Only one circuit has held 

that the safety valve provision did apply to such offenses,

3 De la Cruz concedes on appeal that the safety valve issue

that he raises is an open question in this circuit. Nonetheless, 

he cites United States v. Rodríguez-Durán, 507 F.3d 749, 772 (1st 

Cir. 2007), and United States v. Bravo, 489 F.3d 1, 11-12 (1st 

Cir. 2007), and argues that "the Court has previously assumed 

without deciding that the safety valve may apply to defendants 

convicted of violating the MDLEA." Neither of those cases states 

such an assumption and the Court did not consider the issue. See

Rodríguez-Durán, 507 F.3d at 772-74; Bravo, 489 F.3d at 11-12.
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reasoning that it did so based on the interaction between the MDLEA 

and the penalty provision of 21 U.S.C. § 960. See United States

v. Mosquera-Murillo, 902 F.3d 285, 292-96 (D.C. Cir. 2018). We 

agree with the majority view and hold that the applicable safety 

valve provision did not apply to offenses under the MDLEA based on 

the plain language of the statute as well as the history and

structure of that statute and others.4

A. The Relevant Statutes

Because the language of the MDLEA, 21 U.S.C. § 960, and 

the safety valve provision is essential to both parties' arguments, 

we first discuss the language of those statutes and provide a brief 

history of each. 

Congress enacted the MDLEA in 1980 "to facilitate 

increased enforcement by the Coast Guard of laws relating to the 

importation of controlled substances, and for other purposes." 

Pub. L. No. 96-350, 94 Stat. 1159, 1159 (1980) (codified as amended 

at 46 U.S.C. §§ 70501-70507).5 The MDLEA provides that "[w]hile 

4 The defendant has not argued on appeal that interpreting 

the safety valve provision not to apply to MDLEA offenses would 

somehow contravene the purpose of the safety valve statute, the 

MDLEA, or any other statute. Rather, he focuses his arguments on 

the language of the safety valve provision, the MDLEA, and 21 

U.S.C. § 960, as interpreted in Mosquera-Murillo. The government 

responds with arguments based on the language of the statute, as 

well as its history and structure in the context of other statutes.

5 The MDLEA, which was originally codified at 46 U.S.C. 

§§ 1901 to 1904, was amended several times between 1980 and when 

the safety valve provision was enacted in 1994, with the most 
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on board a covered vessel, an individual may not," among other 

things, "knowingly or intentionally . . . manufacture or 

distribute, or possess with intent to manufacture or distribute, 

a controlled substance." 46 U.S.C. § 70503(a). A separate penalty 

section of the MDLEA, in turn, provides that an offense or a 

conspiracy or attempt to commit an offense under § 70503(a)(1) 

"shall be punished as provided in [21 U.S.C. § 960]" if it is the 

person's first felony drug offense. 46 U.S.C. § 70506(a)-(b); see 

also 21 U.S.C. § 962(b). 

Congress enacted 21 U.S.C. § 960 in 1970 as part of the 

Controlled Substances Import and Export Act. Pub. L. No. 91-513, 

§ 1010, 84 Stat. 1236, 1290 (1970) (codified as amended at 21 

U.S.C. § 960 (2018)). Section 960 has several subsections. 

Section 960(a) provides the "[u]nlawful acts" which are punishable 

under the statute and specifically lists six other statutes which 

constitute those unlawful acts under § 960. 21 U.S.C. § 960(a) 

(2018) (listing 21 U.S.C. §§ 825, 952, 953, 955, 957, and 959 as 

unlawful conduct for purposes of § 960). MDLEA offenses are not 

among those listed as "[u]nlawful acts" under § 960(a). Although 

the MDLEA did not exist at the time § 960 was first enacted, § 960 

was later amended a number of times after the MDLEA was enacted, 

substantial amendment occurring in 1986. See Maritime Drug Law 

Enforcement Prosecution Improvements Act of 1986, Pub. L. No. 99-

570, §§ 3201-3202, 100 Stat. 3207, 3207-95 to -97.
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including in the Maritime Drug Law Enforcement Prosecution 

Improvements Act of 1986. See Pub. L. No. 99-570, §§ 1005, 1302, 

100 Stat. 3207, 3207-6, 3207-15 to -18 (1986). None of those later 

amendments to § 960 added the MDLEA to the list of offenses which 

constituted "[u]nlawful acts" under § 960(a).

Section 960(a) provides that the enumerated unlawful 

acts "shall be punished as provided in subsection (b)." It is 

pursuant to § 960(b) that MDLEA offenses under § 70503(a)(1) are 

punished. See 46 U.S.C. § 70506(a)-(b). 

Section 960(b), titled "[p]enalties," describes how the 

drug-related offenses to which it applies should be punished based 

on the drug type and amount involved. It provides that when the 

violation involves "5 kilograms or more of a mixture or substance 

containing a detectable amount of [cocaine] . . . the person 

committing such violation shall be sentenced to a term of 

imprisonment of not less than 10 years" if there was no death or 

serious bodily injury resulting from the use of the controlled 

substance and the person has no prior conviction for a felony drug 

offense. 21 U.S.C. § 960(b)(1) (2018).

In 1994, Congress enacted the Violent Crime Control and 

Law Enforcement Act which, among other things, created the safety 

valve provision at issue. Pub. L. No. 103-322, § 80001(a), 108 

Stat. 1796, 1985-86 (1994) (codified as amended at 18 U.S.C. 
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§ 3553(f) (2018)). The version of the safety valve provision that 

applies to De la Cruz6 provided that

[n]otwithstanding any other provision of law, 

in the case of an offense under [21 U.S.C. 

§§ 841, 844, or 846] or [21 U.S.C. §§ 960 or 

963], the court shall impose a sentence 

pursuant to guidelines promulgated by the 

United States Sentencing Commission . . . 

without regard to any statutory minimum 

sentence, if the court finds at sentencing, 

after the Government has been afforded the 

opportunity to make a recommendation, that 

[the defendant satisfies five criteria].7 

6 In December 2018, Congress enacted the First Step Act 

which, among other things, amended the § 3553(f) safety valve 

provision to explicitly include MDLEA offenses under §§ 70503 and 

70506 as offenses eligible for relief from statutory minimums. 

Pub. L. No. 115-391, § 402(a)(1)(A)(ii), 132 Stat. 5194, 5221 

(2018). The title of that section of the First Step Act is 

"Broadening of Existing Safety Valve." Id. § 402. Congress chose 

not to make the amendment to the safety valve provision apply 

retroactively. Id. § 402(b). Because De la Cruz was sentenced 

before the First Step Act was enacted, the previous version of the 

safety valve provision applies to him.

7 Those five criteria are that: 

(1) the defendant does not have more than 1 

criminal history point, as determined under 

the sentencing guidelines; (2) the defendant 

did not use violence or credible threats of 

violence or possess a firearm or other 

dangerous weapon (or induce another 

participant to do so) in connection with the 

offense; (3) the offense did not result in 

death or serious bodily injury to any person; 

(4) the defendant was not an organizer, 

leader, manager, or supervisor of others in 

the offense, as determined under the 

sentencing guidelines and was not engaged in 

a continuing criminal enterprise, as defined 

in section 408 of the Controlled Substances 

Act; and (5) not later than the time of the 

sentencing hearing, the defendant has
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18 U.S.C. § 3553(f) (2018). MDLEA offenses under §§ 70503 and 

70506 were not among the five specifically enumerated offenses in 

§ 3553(f).

B. The Safety Valve Provision Did Not Apply to MDLEA Offenses 

Under the Plain Language of the Statute

We begin with the safety valve statute's language in 

interpreting its meaning. United States v. Vidal-Reyes, 562 F.3d 

43, 50 (1st Cir. 2009). "In so doing, we accord the statutory 

text 'its ordinary meaning by reference to the specific context in 

which that language is used, and the broader context of the statute 

as a whole.'" Recovery Grp., Inc. v. Comm'r, 652 F.3d 122, 125 

(1st Cir. 2011) (quoting Mullane v. Chambers, 333 F.3d 322, 330 

(1st Cir. 2003) (internal quotation marks omitted)). "When 

exhausting those [textual and structural] clues enables us to 

resolve the interpretive question put to us, our 'sole function' 

is to apply the law as we find it, not defer to some conflicting 

reading . . . ." Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 

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 the 

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.

18 U.S.C. § 3553(f)(1)-(5) (2018).
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(2021) (citation omitted) (quoting Lamie v. U.S. Tr., 540 U.S. 

526, 534 (2004)); see also Recovery Grp., 652 F.3d at 125 ("If the 

statutory language is plain and unambiguous, we 'must apply the 

statute according to its terms,' except in unusual cases where, 

for example, doing so would bring about absurd results." (citation 

omitted) (quoting Carcieri v. Salazar, 555 U.S. 379, 387 (2009))).

The language of the safety valve provision plainly and 

unambiguously did not apply to offenses under the MDLEA. Section 

3553(f) provided that the safety valve could apply to "an offense 

under" one of the five enumerated statutes listed in that 

provision. 18 U.S.C. § 3553(f) (2018). The MDLEA was not one of 

those enumerated statutes. By explicitly listing certain statutes 

and excluding others, Congress clearly intended for the safety 

valve provision to apply only to offenses under the specific 

statutes listed and not to offenses under the MDLEA. AnchundiaEspinoza, 897 F.3d at 633; Pertuz-Pertuz, 679 F.3d at 1328; GamboaCardenas, 508 F.3d at 497-98; see also United States v. HernándezFerrer, 599 F.3d 63, 67-68 (1st Cir. 2010) (applying the "expressio 

unius est exclusio alterius" canon of statutory construction, 

"which translates roughly as 'the expression of one thing is the 

exclusion of other things'" (emphasis omitted)).8 Congress had a 

8 Other circuits have also strictly construed the 

§ 3553(f) safety valve provision not to apply to offenses under 

other statutes which were not expressly included in the safety 

valve provision. See, e.g., United States v. Koons, 300 F.3d 985, 
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good reason for not including MDLEA offenses among those eligible 

for safety valve relief: at that time, Congress was especially

concerned about drug trafficking over the seas and found that it 

was "a serious international problem and [was] universally 

condemned" and "present[ed] a specific threat to the security and 

societal well-being of the United States." Maritime Drug Law 

Enforcement Prosecution Improvements Act of 1986, Pub. L. No. 99-

570, § 3202, 100 Stat. 3207, 3207-95.

Nor are MDLEA offenses "offense[s] under" § 960, which 

was one of the statutes expressly included in the safety valve 

provision. See 18 U.S.C. § 3553(f) (2018). Section 960(a) lists 

six statutes the violation of any one of which constitutes the 

"[u]nlawful acts" under § 960. 21 U.S.C. § 960(a) (2018). 

Violations of one of those other listed statutes would be eligible 

for safety valve relief because they are offenses under § 960. 

Anchundia-Espinoza, 897 F.3d at 634; Pertuz-Pertuz, 679 F.3d at 

1329; Gamboa-Cardenas, 508 F.3d at 497. The MDLEA is not one of 

the statutes expressly listed under § 960(a), and so an MDLEA 

offense is not an offense under § 960 for purposes of safety valve 

relief. Anchundia-Espinoza, 897 F.3d at 634; Pertuz-Pertuz, 679 

993 (8th Cir. 2002) (holding that the safety valve provision did 

not apply to offenses under 21 U.S.C. § 860 because it was not one 

of the statutes specifically listed in the safety valve); United 

States v. McQuilkin, 78 F.3d 105, 108 (3d Cir. 1996) (same).
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F.3d at 1329; Gamboa-Cardenas, 508 F.3d at 497-99; see also

Hernández-Ferrer, 599 F.3d at 67-68. 

The fact that MDLEA offenses are punished pursuant to 

§ 960(b) does not change that conclusion. As our sister circuits 

have noted, the safety valve provision applies to "offense[s]

under" one of the listed statutes, not to "offenses punishable 

under," "offenses penalized under," or "sentences under" one of 

those listed statutes. See Anchundia-Espinoza, 897 F.3d at 634; 

Pertuz-Pertuz, 679 F.3d at 1329; Gamboa-Cardenas, 508 F.3d at 498-

99; see also 18 U.S.C. § 3553(f) (2018). Section 960 provides its 

own offense conduct, by incorporation of other statutes, and the 

MDLEA provides its own offense conduct which is not incorporated 

into § 960. See 46 U.S.C. § 70506(a)-(b); 21 U.S.C. § 960(a) 

(2018). That § 70506 incorporates the penalty provision of § 960 

does not change the fact that those separate statutes each defines 

and criminalizes different conduct which constitutes the offenses 

under those two statutes.

De la Cruz relies on the D.C. Circuit's decision in 

Mosquera-Murillo to support his § 960 argument. Mosquera-Murillo,

in turn, states that it was relying on the Supreme Court's 

decisions in Patterson v. New York, 432 U.S. 197, 210 (1977), 

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Alleyne v. 

United States, 570 U.S. 99, 105-06 (2013) (plurality), in holding 

that MDLEA offenses are offenses under § 960 because the penalty 
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provision in § 960(b) provides elements of those offenses.9 See

902 F.3d at 293 (stating that "[o]ffenses are defined by the 

provisions that supply their elements" (citing Patterson, 432 U.S. 

at 210)). In our view, Patterson, Apprendi, and Alleyne are 

inapposite because none addresses the statutory interpretation 

issue here.10

9 The D.C. Circuit in Mosquera-Murillo also relied on the 

fact that the government had charged the defendants with violations 

of both the MDLEA and § 960 in the same count of the indictment as 

further support for the § 960 argument. See 902 F.3d at 293-94. 

The indictment here charged violations of the MDLEA and § 960 in 

separate counts.

10 Patterson addressed the issue of whether placing the 

burden of proving an affirmative defense at a murder trial on the 

defendant violates the Due Process Clause of the Fourteenth 

Amendment. 432 U.S. at 198. Patterson held that "the Due Process 

Clause requires the prosecution to prove beyond a reasonable doubt 

all of the elements included in the definition of the offense of 

which the defendant is charged" but does not require the 

prosecution to prove the nonexistence of an affirmative defense 

where the affirmative defense does not require the defendant to 

disprove an element of the charged offense. Id. at 210; see also

id. at 206-07. 

Apprendi addressed the issue of "whether the Due Process 

Clause of the Fourteenth Amendment requires that a factual 

determination authorizing an increase in the maximum prison 

sentence for an offense from 10 to 20 years be made by a jury on 

the basis of proof beyond a reasonable doubt." 530 U.S. at 469. 

The Supreme Court held that, as a matter of constitutional due 

process, "any fact (other than prior conviction) that increases 

the maximum penalty for a crime must be charged in an indictment, 

submitted to a jury, and proven beyond a reasonable doubt." Id.

at 476 (quoting Jones v. United States, 526 U.S. 227, 243 n.6 

(1999)); see also id. at 490. The Supreme Court in Alleyne

concluded the same with respect to any fact that increases a 

mandatory minimum, holding that "[a]ny fact that, by law, increases 

the penalty for a crime is an 'element' that must be submitted to 

the jury and found beyond a reasonable doubt." 570 U.S. at 103 

(citing Apprendi, 530 U.S. at 483 n.10, 490).
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Even if drug type and drug amount are elements of an 

MDLEA offense for purposes of punishment, as provided by § 960(b),

and so those facts must be proven to a jury beyond a reasonable 

doubt as a matter of constitutional due process under Patterson,

Apprendi, and Alleyne, those cases do not say anything about what 

"offense under" means for purposes of safety valve relief as a 

matter of statutory interpretation. That is a separate question 

about what Congress intended when it enacted the safety valve 

statute in 1994, and the plain and unambiguous language of 18 

U.S.C. § 3553(f) simply did not apply to offenses under the MDLEA.

We cannot conclude that the technical definition of what 

an "offense" might mean under Apprendi and Alleyne, which postdate the enactment of the safety valve provision, was the 

definition that Congress intended in 1994. See Niz-Chavez, 141 S. 

Ct. at 1480 ("When called on to resolve a dispute over a statute's 

meaning, this Court normally seeks to afford the law's terms their 

ordinary meaning at the time Congress adopted them."); Ngiraingas

v. Sanchez, 495 U.S. 182, 187 (1990). At that time, Black's Law 

Dictionary defined "offense" as "[a] felony or misdemeanor; a 

breach of the criminal laws; violation of law for which penalty is 

prescribed." Offense, Black's Law Dictionary (6th ed. 1990); see 

also Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566-69 

(2012) (using dictionary definitions to interpret a term in a 

statute). A "breach" or "violation" of the law connotes the 
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actions or conduct by the perpetrator which warrants the penalty 

prescribed by the law, but neither definition refers to the conduct 

that bears only on the degree of that penalty. 

To the contrary, our understanding of "offense" comes 

from the Supreme Court's opinion in McMillan v. Pennsylvania, 477 

U.S. 79 (1986). In McMillan, the Supreme Court held that 

sentencing factors which come into play only after the defendant 

has been found guilty beyond a reasonable doubt will not be 

considered elements of the substantive offense except under 

limited circumstances not involved here. See id. at 84-91 (relying 

on Patterson). At the time the safety valve provision was enacted, 

the Circuit Courts of Appeals applied the McMillan rule in holding 

that drug amount for purposes of sentencing was not an element of 

the substantive offense. See, e.g., United States v. Lowden, 955 

F.2d 128, 129-30 (1st Cir. 1992); United States v. Lam Kwong-Wah, 

966 F.2d 682, 685-88 (D.C. Cir. 1992); United States v. Royal, 972 

F.2d 643, 649-50, 649 n.10 (5th Cir. 1992); United States v. 

Harrison-Philpot, 978 F.2d 1520, 1523-24 (9th Cir. 1992); United 

States v. Perez, 960 F.2d 1569, 1574-75 (11th Cir. 1992); United 

States v. Madkour, 930 F.2d 234, 237-38 (2d Cir. 1991); United 

States v. Moreno, 899 F.2d 465, 472-74 (6th Cir. 1990); United 

States v. Reynolds, 900 F.2d 1000, 1002-04 (7th Cir. 1990); United 

States v. Powell, 886 F.2d 81, 84-85 (4th Cir. 1989); United States

v. Jenkins, 866 F.2d 331, 333-34 (10th Cir. 1989); United States
- 18 -

v. Woods, 834 F.2d 1382, 1389-90 (8th Cir. 1987). It was not until 

years after the safety valve provision was enacted that McMillan's 

definition of what constituted an "offense" and "offense elements" 

was overruled. See United States v. Haymond, 139 S. Ct. 2369, 

2378 (2019) (stating that Alleyne expressly overruled McMillan and 

extended Apprendi).

C. The History and Structure of the MDLEA, Safety Valve 

Provision, and Other Statutes Confirm That the Safety Valve 

Provision Did Not Apply to MDLEA Offenses

The plain text resolves the statutory interpretation 

question. And in any event, our interpretation is further 

confirmed by other indicia. For confirmation, we look to the 

legislative history of the safety valve and other statutes. See, 

e.g., Niz-Chavez, 141 S. Ct. at 1484; Telecomms. Regul. Bd. of 

P.R. v. CTIA-The Wireless Ass'n, 752 F.3d 60, 66 (1st Cir. 2014). 

We also look to the structure of the safety valve provision in the 

context of the act which enacted it and in the context of other

statutes. See, e.g., Niz-Chavez, 141 S. Ct. at 1482-84; City of 

Providence v. Barr, 954 F.3d 23, 31-44 (1st Cir. 2020); Carnero v. 

Bos. Sci. Corp., 433 F.3d 1, 7-11 (1st Cir. 2006).

The MDLEA was enacted about fourteen years before -- and 

subject to significant amendment eight years before -- the safety 

valve provision was enacted. Congress was clearly aware of the 

MDLEA at the time it created the safety valve and could easily 

have included it among the safety valve's enumerated offenses if 
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it had so wanted. See Anchundia-Espinoza, 897 F.3d at 634; GamboaCardenas, 508 F.3d at 497-98. Moreover, § 960 was amended several 

times after the MDLEA was enacted, including as part of the act

which amended the MDLEA in 1986 and the act which enacted the 

safety valve provision in 1994. None of those amendments added 

the MDLEA to the list of statutes that constituted the unlawful 

conduct under § 960. It would have been far easier for Congress

simply to include MDLEA offenses under either § 3553(f) or § 960(a) 

if it intended for the safety valve to apply to such offenses, 

rather than rely on a complex analysis by which a court must infer 

safety valve relief through the MDLEA's incorporation of a penalty 

provision that does not itself discuss the safety valve. We cannot

conclude that Congress intended to do indirectly what it could 

have done directly but did not. See Anchundia-Espinoza, 897 F.3d 

at 633-34; Pertuz-Pertuz, 679 F.3d at 1328-29; Gamboa-Cardenas, 

508 F.3d at 497-98; see also Franklin Cal. Tax-Free Tr. v. Puerto 

Rico, 805 F.3d 322, 338 (1st Cir. 2015).

That Congress eventually did amend the § 3553(f) safety 

valve provision in 2018 to explicitly include offenses under the 

MDLEA -- eleven years after the first appellate opinion holding 

that the safety valve did not apply to such offenses, see GamboaCardenas, 508 F.3d at 491 -- and chose not to apply that amendment 

retroactively is further evidence that the safety valve did not 
- 20 -

previously apply to offenses under the MDLEA.11 See Heckler v. 

Turner, 470 U.S. 184, 209-11 (1985) (referring to later enacted 

legislation in interpreting an earlier statute and stating that 

"it carries . . . considerable retrospective weight" (collecting 

cases)); Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 

572, 595-96 (1980) (stating that "while the views of subsequent 

Congresses cannot override the unmistakable intent of the enacting 

one, such views are entitled to significant weight" (citation 

omitted)). 

This later enactment in 2018 is entitled to weight, and 

it reinforces our conclusions based on the language of the statute. 

The fact that the title of the operative section of the First Step 

Act is called "Broadening of Existing Safety Valve," Pub. L. No. 

115-391, § 402, 132 Stat. 5194, 5221 (2018), is further evidence 

that Congress understood the older version of the statute to have

a narrower scope, see Fla. Dep't of Revenue v. Piccadilly 

Cafeterias, Inc., 554 U.S. 33, 47 (2008) (stating that "statutory 

titles and section headings 'are tools available for the resolution 

of a doubt about the meaning of a statute'" (quoting Porter v. 

11 In his brief, De la Cruz refers to the "undue sentencing 

disparity" for defendants like De la Cruz who were sentenced 

shortly before the enactment of the First Step Act. But any 

disparity is the result of Congress's own choice to make the First 

Step Act's amendment to the safety valve provision not retroactive. 

And because all MDLEA defendants sentenced after December 2018 are 

now eligible for safety valve relief, only a small group of 

defendants is likely to be affected by this decision.
- 21 -

Nussle, 534 U.S. 516, 528 (2002) (internal quotation marks 

omitted))). Indeed, it would have been unnecessary for Congress 

to "broaden" the existing safety valve to encompass MDLEA offenses 

if those offenses were already within its scope. The use of the 

term "broaden" in adding MDLEA offenses, rather than "confirm" or 

"clarify," also reinforces that even post-Apprendi, Congress did 

not have in mind Mosquera-Murillo's technical, case law-based view 

of the word "offense" for purposes of the safety valve.

Furthermore, the structure of the act which enacted the 

safety valve provision, as well as the language used in surrounding 

statutes, confirm that the safety valve provision did not apply to 

offenses under the MDLEA. Congress enacted the safety valve 

provision in the Violent Crime Control and Law Enforcement Act of 

1994. Pub. L. No. 103-322, § 80001(a), 108 Stat. 1796, 1985-86. 

In that same act, Congress added a subsection to 18 U.S.C. § 924 

which made it unlawful to "smuggle[] or knowingly bring[] into the 

United States a firearm" "with intent to engage in or to promote 

conduct that . . . is punishable under the Controlled Substances 

Act (21 U.S.C. [§§] 801 et seq.), the Controlled Substances Import 

and Export Act (21 U.S.C. [§§] 951 et seq.), or the Maritime Drug 

Law Enforcement Act [(46 U.S.C. §§ 70501 et seq.)]." Pub. L. No. 

103-322, § 110503, 108 Stat. 1796, 2016 (codified as amended at 18 

U.S.C. § 924(k)) (emphasis added). That Congress explicitly 

referred to the MDLEA in another section of the same act which 
- 22 -

created the safety valve provision to define another offense shows 

that Congress intended to exclude MDLEA offenses from the scope of 

the safety valve provision. See Russello v. United States, 464 

U.S. 16, 23 (1983) ("[W]here Congress includes particular language 

in one section of a statute but omits it in another section of the 

same Act, it is generally presumed that Congress acts intentionally 

and purposely in the disparate inclusion or exclusion."

(alteration in original) (quoting United States v. Wong Kim Bo, 

472 F.2d 720, 722 (5th Cir. 1972))).

Congress also used the phrase "punishable under" in 

enacting the new subsection of 18 U.S.C. § 924 in the Violent Crime 

Control and Law Enforcement Act of 1994 to define the unlawful 

conduct covered by that subsection. Pub. L. No. 103-322, § 110503, 

108 Stat. 1796, 2016. If Congress had intended the safety valve 

provision to apply to offenses "punishable under" one of the 

statutes enumerated in that provision, Congress could have used 

that same language. That it instead chose to use different 

language in different parts of the same act which created the 

safety valve provision is important. See Russello, 464 U.S. at 

23. And in the new subsection of 18 U.S.C. § 924 enacted in the 

Violent Crime Control and Law Enforcement Act of 1994, Congress 

listed the Controlled Substances Import and Export Act (which 

includes 21 U.S.C. § 960) and the MDLEA separately using the 

disjunctive "or." Referring to those statutes in that way is 
- 23 -

further evidence that Congress did not intend for MDLEA offenses 

to be subsumed under § 960 through the MDLEA's incorporation of 

the penalty provision in § 960(b).

At the time Congress enacted the safety valve provision, 

there were numerous other statutes where Congress had specifically 

referred to the MDLEA when describing drug-related offenses, which 

is further evidence that Congress knew how to include MDLEA

offenses when it so intended. See, e.g., 18 U.S.C. § 924(c)(2) 

(1994) (defining "drug trafficking crime" as "any felony 

punishable under the Controlled Substances Act (21 U.S.C. [§§] 801 

et seq.), the Controlled Substances Import and Export Act (21 

U.S.C. [§§] 951 et seq.), or the Maritime Drug Law Enforcement Act

[(46 U.S.C. §§ 70501 et seq.)] (emphasis added)); id.

§ 924(e)(2)(A)(i) (1994) (defining a "serious drug offense" using 

similar language); id. § 924(g)(2) (1994) (using similar language 

in making it unlawful to travel interstate with a firearm); id.

§ 929(a)(2) (1994) (using the same definition of "drug trafficking 

crime" as § 924(c)(2)); id. § 3142(e) (1994) (prescribing a 

rebuttable presumption of pretrial detention for defendants where 

"there is probable cause to believe that the person committed an 

offense for which a maximum term of imprisonment of ten years or 

more is prescribed in the Controlled Substances Act (21 U.S.C.

[§§] 801 et seq.), the Controlled Substances Import and Export Act 

(21 U.S.C. [§§] 951 et seq.), the Maritime Drug Law Enforcement 
- 24 -

Act [(46 U.S.C. §§ 70501 et seq.)], or an offense under section 

[18 U.S.C. §] 924(c)" (emphasis added)); 28 U.S.C. § 994(h) (1994) 

(providing that the Sentencing Commission's guidelines must 

specify a prison sentence "at or near the maximum term authorized 

for categories of defendants" who are at least eighteen years old 

and have been convicted of multiple felonies that each are "a crime 

of violence . . . or . . . an offense described in section 401 of 

the Controlled Substances Act (21 U.S.C. [§] 841), sections 

1002(a), 1005, and 1009 of the Controlled Substances Import and 

Export Act (21 U.S.C. [§§] 952(a), 955, and 959), and the Maritime 

Drug Law Enforcement Act [(46 U.S.C. §§ 70501 et seq.)]" (emphasis 

added)).

And in several of these statutes which existed at the 

time Congress enacted the safety valve provision, Congress used 

the term "punishable under" when referring to § 960 which further 

demonstrates it distinguished between "offenses under" and 

"offenses punishable under." See, e.g., 18 U.S.C. § 924(c)(2) 

(1994); id. § 924(g)(2) (1994); id. § 929(a)(2) (1994). Several 

of these statutes also listed both MDLEA offenses and § 960

offenses separately and in the disjunctive. See, e.g., 18 U.S.C. 

§ 924(c)(2) (1994); id. § 924(e)(2)(A)(i) (1994); id. § 924(g)(2) 

(1994); id. § 929(a)(2) (1994). These are further indicia that 

Congress did not intend for MDLEA offenses to fall under § 960.
- 25 -

Finally, the plain language reading of the safety valve 

provision is supported by the possible effect the defendant's 

contrary reading would have on the availability of safety valve 

relief. If we were to accept De la Cruz's argument and the position 

of the D.C. Circuit in Mosquera-Murillo that MDLEA offenses were

eligible for safety valve relief because § 960 provides some of 

the elements for those offenses, that likely would have 

consequences as to other separate offenses also not explicitly 

listed. The government argues that offenses under both 21 U.S.C. 

§§ 859 and 860 would likely also be eligible for safety valve 

relief, even though neither was listed in 18 U.S.C. § 3553(f). 

After all, §§ 859 and 860 both refer to and incorporate a violation 

of 21 U.S.C. § 841(a)(1) (which is one of the statutes listed in 

the safety valve provision) as an element of the offense; add an 

additional element of distributing a controlled substance to 

someone under twenty-one years old, see id. § 859, or 

"distributing, possessing with intent to distribute, or 

manufacturing a controlled substance in or on, or within" certain 

protected areas, such as schools or public housing facilities, id.

§ 860(a)-(b), or hiring someone under eighteen years old to do so 

or to assist in doing so, id. § 860(c); and then set enhanced 

penalties which are calculated by reference to the penalties 

provided in § 841 that are based on drug type and drug amount, see

id. §§ 841(b), 859, 860. 
- 26 -

Yet every circuit to have directly decided the issue has

held that offenses under § 860 are not eligible for § 3553(f) 

safety valve relief. See United States v. Phillips, 382 F.3d 489, 

499-500 (5th Cir. 2004); Koons, 300 F.3d at 993; United States v. 

Kakatin, 214 F.3d 1049, 1051-52 (9th Cir. 2000); United States v. 

Anderson, 200 F.3d 1344, 1346-48 (11th Cir. 2000); McQuilkin, 78 

F.3d at 107-09; see also United States v. Warnick, 287 F.3d 299, 

303-04 (4th Cir. 2002). But see Mosquera-Murillo, 902 F.3d at 296 

(discussing but not deciding the issue). That De la Cruz's and 

Mosquera-Murillo's reasoning would indirectly expand the § 3553(f) 

safety valve to even more statutes which are not explicitly 

included in that safety valve provision is evidence that Congress 

did not intend this reading.12

III.

De la Cruz's sentence and the judgment of the district 

court are affirmed.

12 In his brief, De la Cruz argues that the "unfairness [of 

his sentence] is compounded by the government's documented 

practice of extending safety-valve relief to some MDLEA defendants 

while denying it to others." But De la Cruz does not develop that 

argument and so it is waived. See Henderson v. Mass. Bay Transp. 

Auth., 977 F.3d 20, 33 (1st Cir. 2020).

He also raised the rule of lenity for the first time at 

oral argument. Any argument based on the rule of lenity is also 

waived because it was not made in his opening brief. See Bernardo 

ex rel. M & K Eng'g, Inc. v. Johnson, 814 F.3d 481, 492 n.17 (1st 

Cir. 2016). Even bypassing that waiver issue, the rule of lenity 

does not apply here because the safety valve provision is not 

ambiguous. See United States v. Pinkham, 896 F.3d 133, 138 (1st 

Cir. 2018).