PUBLISH

UNITED STATES COURT OF APPEALS

Filed 10/30/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID H. TORRES,

Defendant-Appellant.

No. 96-2024

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. Nos. CIV-95-1499-JC & CR-92-478-JC)

Submitted on the briefs:

John J. Kelly, United States Attorney, Louis E. Valencia, Assistant United States

Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, New

Mexico, for Defendant-Appellant. 

Before BRORBY, BARRETT, and EBEL, Circuit Judges.

BRORBY, Circuit Judge.
1 After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

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After appellant David Torres was sentenced for his marijuana-related

convictions, the Sentencing Commission revised the applicable sentencing

guideline and lowered the sentencing range. Seeking to benefit from the

guideline change, Mr. Torres filed this motion for reduction of sentence under 18

U.S.C. § 3582(c)(2). Because Mr. Torres had been sentenced to the mandatory

minimum sentence, and the requested sentence under the guideline change is

lower than the mandatory minimum, he contends that he qualifies for the “safety

valve” exception to the mandatory minimum sentence, 18 U.S.C. § 3553(f). He

concedes that the effective date of § 3553(f) is after the date his sentence was

imposed and that the section is not retroactive, but contends that consideration of

his § 3582(c)(2) motion requires de novo resentencing under current law, which

would include § 3553(f). We agree with the district court that § 3582(c)(2) and

related sentencing guidelines do not contemplate fully de novo resentencing, and

that Mr. Torres is not entitled to relief under the safety valve exception. We

therefore affirm the court’s denial of his § 3582(c)(2) motion.1

The facts are not in dispute. Mr. Torres pleaded guilty to one count of

conspiracy, in violation of 21 U.S.C. § 846, and one count of manufacturing more
2 For a defendant to be entitled to the benefit of § 3553(f), the court

must find that (1) he does not have more than one criminal history point; (2) he

did not use violence or possess a firearm in connection with the offense; (3) the

offense did not result in death or serious bodily injury; (4) the defendant was not

(continued...)

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than 100 marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)

and 18 U.S.C. § 2. On March 11, 1993, the district court sentenced him to the

statutorily required minimum sentence of 60 months, 21 U.S.C. § 841(b)(1)(B),

notwithstanding that the then-applicable guideline range was 46 to 57 months. 

See U.S.S.G. § 5G1.1(c).

Effective November 1, 1995, the Sentencing Commission amended the

method for determining the weight of marijuana plants. Instead of the previous

“one plant equals one kilogram” ratio where 50 or more plants were involved, the

amended guidelines treat each plant as the equivalent of 100 grams of marijuana,

unless the actual weight is greater. See U.S.S.G. App. C, Amendment 516,

amending U.S.S.G. § 2D1.1(c). The guidelines expressly make Amendment 516

retroactive. § 1B1.10(c). Pursuant to Amendment 516, Mr. Torres’ guideline

range is 18 to 24 months. But the mandatory minimum is still 60 months. Mr.

Torres contends that he should be relieved from the effect of the mandatory

minimum through application of 18 U.S.C. § 3553(f), which allows a court to

impose a sentence pursuant to the guidelines without regard to the statutory

minimum sentence where the defendant meets certain requirements.2 The district
2

(...continued)

an organizer or leader of others in the offense; and (5) the defendant has provided

all evidence and information he has regarding the offense and related offenses to

the government.

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court held that, even assuming Mr. Torres met § 3553(f)’s requirements, § 3353(f)

was not applicable to this case because it was not effective until September 23,

1994, after the date Mr. Torres was sentenced. 

We review the district court’s interpretation of a statute and the sentencing

guidelines de novo. United States v. Acosta-Olivas, 71 F.3d 375, 377 (10th Cir.

1995). As we explained in Acosta-Olivas, 

Section 3553(f) was enacted as a "safety valve" to permit

courts to sentence less culpable defendants to sentences under the

guidelines, instead of imposing mandatory minimum sentences. As

the legislative history of the section states, without such a safety

valve, for "the very offenders who most warrant proportionally

lower sentences--offenders that by guideline definitions are the least

culpable--mandatory minimums generally operate to block the

sentence from reflecting mitigating factors." H.R. Rep. No.

103-460, 103d Cong., 2d Sess., 1994 WL 107571 (1994). This

would have the unfortunate effect that the "least culpable offenders

may receive the same sentences as their relatively more culpable

counterparts." Id. 

71 F.3d at 378. Enacted as part of the Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796, the safety valve

exception applies to all sentences imposed on or after September 23, 1994, id. §

80001(c), and it is not retroactive. See United States v. Rodriguez-Lopez, 63

F.3d 892, 893 (9th Cir. 1995); United States v. Lopez-Pineda, 55 F.3d 693, 697
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n.3 (1st Cir.), cert. denied, 116 S. Ct. 259 (1995); U.S.S.G. § 1B1.10(c)(omitting

Amendment 509, which incorporated § 3553(f) into the guidelines as § 5C1.2,

from list of amendments to be applied retroactively).

On appeal, Mr. Torres concedes that § 3553(f) cannot be applied

retroactively to sentences, such as his, that were imposed before September 23,

1994. Instead, he contends that because his § 3582(c)(2) motion asks that he be

resentenced pursuant to Amendment 516, the court should apply the law in effect

at the time of resentencing, which would include § 3553(f). In support of this

contention, he cites United States v. Ziegler, 39 F.3d 1058 (10th Cir. 1994).

We agree with Mr. Torres that when we remand a case to the district court

with instructions to vacate the sentence and resentence the defendant, “the district

court [is] governed by the guidelines in effect at the time of resentence,” subject

of course to the ex post facto clause. Ziegler, 39 F.3d at 1063-64 & n.2; see also

18 U.S.C. § 3553(a)(4). But that is not the situation Mr. Torres is in. There has

been no vacation of his sentence nor any order for resentencing. Cf. United

States v. Polanco, 53 F.3d 893, 898-99 (8th Cir. 1995)(vacating sentence and

directing district court to consider § 3553(f) in resentencing on remand), cert.
3 Contrary to Mr. Torres’ assertion in his reply brief, nothing in United

States v. Ono, 72 F.3d 101 (9th Cir. 1995), indicates that a § 3582 motion should

be treated the same as a de novo resentencing following vacation of a sentence by

the district court. 

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denied, 116 S. Ct. 2555 (1996). Rather, he seeks relief pursuant to § 3582(c)(2),

which is a different animal.3

Section 3582(c)(2) provides that 

in the case of a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission pursuant to 28 U.S.C.

§ 944(o), . . . the court may reduce the term of imprisonment, after

considering the factors set forth in section 3553(a) to the extent that

they are applicable, if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.

Thus, Mr. Torres’ eligibility for a reduction in sentence is “inexorably tied,”

United States v. Mueller, 27 F.3d 494, 496 (10th Cir. 1994), to U.S.S.G.

§ 1B1.10, which contains the Commission’s applicable policy statements. That

section in turn states that 

[i]n determining whether, and to what extent, a reduction in sentence

is warranted for a defendant eligible for consideration under

18 U.S.C. § 3582(c)(2), the court should consider the sentence that it

would have imposed had the amendment(s) to the guidelines listed in

subsection (c) been in effect at the time the defendant was sentenced.

§ 1B1.10(b). As noted earlier, subsection (c) does not include the amendment

providing the safety valve exception. Moreover, the commentary to this section

underscores the limit placed on what guideline changes may be considered: “In
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determining the amended guideline range under subsection (b), the court shall

substitute only the amendments listed in subsection (c) for the corresponding

guideline provisions that were applied when the defendant was sentenced. All

other guideline application decisions remain unaffected.” Application Note 2

(emphasis added); see also Mueller, 27 F.3d at 496 (“The clear import of

[§ 1B1.10(b)] is the sentencing court determines the applicability of the new

guideline in the context of the circumstances in existence at the time the sentence

was originally imposed.”). 

Mr. Torres’ contention that a § 3582(c)(2) motion requires resentencing

under all then-current sentencing guidelines would negate the limit on

retroactivity provided by § 1B1.10. At the time he was originally sentenced, he

was subject to the mandatory minimum. 21 U.S.C. § 841(b)(1)(B) states, “In the

case of a violation of subsection (a) of this section involving . . . (vii) 100

kilograms or more of a mixture or substance containing a detectible amount of

marijuana, or 100 or more marijuana plants regardless of weight; . . . such person

shall be sentenced to a term of imprisonment which may not be less than 5 years

and not more than 40 years . . . .” (Emphasis added.) The safety valve exception

is specifically excluded from retroactive application by § 1B1.10, and Mr. Torres

cannot evade the plain language and effect of this section by characterizing his

§ 3582(c)(2) motion as requiring de novo resentencing. “If Congress or the
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Commission wanted a contrary result, they would have said so.” Mueller, 29 F.3d

at 497.

AFFIRMED.