FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-10074 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00460-LDG

ESTEBAN HERNANDEZ-CASTRO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Nevada

Lloyd D. George, District Judge, Presiding

Argued and Submitted

November 14, 2006—San Francisco, California

Filed January 12, 2007

Before: A. Wallace Tashima and M. Margaret McKeown,

Circuit Judges, and David O. Carter,* District Judge.

Opinion by Judge McKeown

*The Honorable David O. Carter, United States District Judge for the

Central District of California, sitting by designation. 

419
COUNSEL

Rene L. Valladares, Assistant Federal Public Defender

(argued), Arthur L. Allen, Assistant Federal Public Defender,

Las Vegas, Nevada, for the appellant. 

Ray Gattinella, Assistant United States Attorney, Las Vegas,

Nevada, for the appellee. 

OPINION

McKEOWN, Circuit Judge: 

Under 18 U.S.C. § 3553(f), known as the “safety valve”

provision, a defendant may be sentenced below the applicable

statutory minimum if certain conditions are met, including not

having “more than 1 criminal history point, as determined

under the sentencing guidelines.” Id. § 3553(f)(1). The issue

we consider is whether, following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), the

United States Sentencing Guidelines are advisory for purposes of calculating criminal history points under

§ 3553(f)(1). 

UNITED STATES v. HERNANDEZ-CASTRO 421
This is an issue of first impression in this circuit and we

join our sister circuits in holding that Booker left intact the

requirement of § 3553(f)(1) that a defendant “not have more

than 1 criminal history point.” Section 3553(f)(1) is not, by

virtue of its reference to the Sentencing Guidelines, rendered

advisory by Booker. See United States v. McKoy, 452 F.3d

234, 239 (3d Cir. 2006); United States v. Brehm, 442 F.3d

1291, 1300 (11th Cir. 2006); United States v. Barrero, 425

F.3d 154, 157-58 (2d Cir. 2005); United States v. Bermudez,

407 F.3d 536, 544-45 (1st Cir. 2005); see also United States

v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005) (interpreting

U.S.S.G. § 5C1.2(a)(2) safety valve provision). We also reaffirm our pre-Booker holding in United States v. ValenciaAndrade, 72 F.3d 770, 774 (9th Cir. 1995), that courts have

no authority to adjust criminal history points for the purpose

of granting safety valve relief from a mandatory minimum

sentence. 

Esteban Hernandez-Castro pled guilty to one count of conspiracy to possess with intent to distribute 4,000 grams or

more of methamphetamine in violation of 21 U.S.C. § 841(a),

which carries a minimum sentence of 120 months in prison.

21 U.S.C. § 841(b)(1)(A). This minimum sentence is not a

Guidelines sentence, but rather is statutorily imposed by § 841

itself. 

The safety valve provision sets out criteria under which the

statutory minimum “shall” be ignored if the defendant meets

five requirements. See 18 U.S.C. § 3553(f). Only the first

requirement is at issue: 

(1) the defendant does not have more than 1 criminal

history point, as determined under the sentencing

guidelines. 

Id. § 3553(f)(1). There is no dispute that Hernandez-Castro

met the other conditions. 

422 UNITED STATES v. HERNANDEZ-CASTRO
The district court found that Hernandez-Castro had two

prior convictions: one for Attempted Possession of a Controlled Substance and another for Battery Domestic Violence.

Each conviction was assigned a single criminal history point

under the Guidelines, bringing Hernandez-Castro’s criminal

history total to two points. Consequently he did not meet the

first requirement of § 3553(f). 

The district court concluded that it had no discretion to

adjust Hernandez-Castro’s criminal history points for purposes of qualification for safety valve relief. Agreeing with

the Second Circuit’s reasoning in Barrero, 425 F.3d at 157-

58, the district court stated that it must “strictly abide by the

guideline determination of criminal history points for purposes of determining eligibility for application of the statutory

safety valve.” The district court found Hernandez-Castro ineligible for relief pursuant to the safety valve provision and sentenced him to 121 months in prison, the low end of the

recommended 121-151 months Guidelines range. 

Now, on appeal, Hernandez-Castro challenges his sentence,

arguing that the district court erred in holding that it had no

discretion to grant safety valve relief. Hernandez-Castro’s

argument is two-fold: (1) the first requirement of the safety

valve provision, § 3553(f)(1), is a creature of the Sentencing

Guidelines, and therefore was rendered advisory by Booker;

(2) even if the first requirement is not itself advisory, the district court had discretion under the Guidelines to reduce his

criminal history points from two to one. Although our decision in United States v. Valencia-Andrade forecloses his second argument, Hernandez-Castro asks us to reconsider that

case in light of the changed landscape post-Booker.

I. SECTION 3553(f)(1) REMAINS INTACT AFTER BOOKER. 

Hernandez-Castro’s argument is founded on the premise

that Booker’s use of the word “advisory” is a magic incantation that renders any and all references to the Sentencing

UNITED STATES v. HERNANDEZ-CASTRO 423
Guidelines “advisory.” He posits that because Booker made

the Sentencing Guidelines “advisory,” the first prong of the

safety valve provision must also be advisory, as it requires a

determination of criminal history under “the Sentencing

Guidelines.” See 18 U.S.C. § 3553(f)(1). Hernandez-Castro

misapprehends the reach of Booker. 

[1] We begin with the understanding that Booker did not

affect the imposition of statutory minimums. See United

States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005); see

also United States v. Veith, 397 F.3d 615, 620 (8th Cir. 2006).

To understand why Booker does not affect § 3553(f), it is

helpful to summarize exactly what the Supreme Court

directed in Booker. After concluding that the “mandatory”

sentencing rules of 18 U.S.C. § 3553(b)(1) violated the Sixth

Amendment, the Court excised two statutory provisions to

remedy this constitutional infirmity: “the provision that

requires sentencing courts to impose a sentence within the

applicable Guidelines range . . . see 18 U.S.C.A. § 3553(b)(1)

(Supp. 2004) and the provision that sets forth the standards of

review on appeal . . . .” Booker, 543 U.S. at 259. The Court

emphasized that “the remainder of the [Sentencing Guidelines] Act satisfies the Court’s constitutional requirements”

and went on to note that “[t]he remainder of the Act ‘function[s] independently.’ ” Id. (citation omitted). 

[2] Section 3553(f) falls squarely within the “remainder of

the Act” that is unaffected by Booker.

1

 In calculating criminal

history points to determine eligibility for safety valve relief,

the district court is simply ascertaining prior convictions, a

determination that passes constitutional scrutiny under

Almendarez-Torres, 523 U.S. 224, 230, 244-45 (1998), as

reaffirmed in Apprendi v. New Jersey, 530 U.S. 466, 489-90

1

See United States v. Cardenas-Juarez, 469 F.3d 1331, 1334 (9th Cir.

2006) (“[T]he safety valve statute, 18 U.S.C. § 3553(f), survives Booker

to require district courts to impose sentences pursuant to the advisory Sentencing Guidelines.”). 

424 UNITED STATES v. HERNANDEZ-CASTRO
(2000). Criminal history points under the Guidelines are thus

tied to the record of the defendant’s past convictions. See

U.S.S.G. § 4A1.1. Nothing in this scheme permits the district

court to ignore the criminal history calculation of the Guidelines nor does denial of safety valve relief implicate the Sixth

Amendment. See Barrero, 425 F.3d at 158 (holding there is

“no constitutional bar to a legislative instruction to a judge to

sentence the defendant to such a mandatory minimum where,

as here, the defendant is ineligible for safety valve relief

based on the court’s finding that he had more than one criminal history point”). 

II. BOOKER DID NOT UNDERMINE OUR HOLDING IN

VALENCIA-ANDRADE. 

Once it is established that there is no constitutional problem

with imposing a statutory minimum sentence or conditioning

a departure from that statutory minimum based on a Guidelines calculation of criminal history points, the remaining

question is one of Congressional intent: Did Congress intend

to permit a discretionary adjustment of the criminal history to

meet the requirement of § 3553(f)(1)? This inquiry is important because the crux of Hernandez-Castro’s argument on this

point is that the district court should have reduced his criminal

history rating to a Category I, thereby making him eligible for

safety valve relief. 

[3] We decided this precise issue in United States v.

Valencia-Andrade: “Section 3553(f) is not ambiguous. It

explicitly precludes departure from the mandatory minimum

provisions of 21 U.S.C. § 841 if the record shows that a

defendant has more than one criminal history point.” 72 F.3d

at 774. Unlike our case, in Valencia-Andrade, the district

court did adjust the defendant’s two criminal history points

down to one. Id. at 772. However, the district court ultimately

concluded, and the Ninth Circuit agreed, that such adjustment

could not be used to meet the requirement of § 3553(f)(1). Id.

at 774. 

UNITED STATES v. HERNANDEZ-CASTRO 425
[4] Hernandez-Castro acknowledges that Valencia-Andrade

is directly contrary to the argument he now urges before this

panel. He contends, however, that (1) Valencia-Andrade is

invalid after Booker, and (2) it was wrongly decided. Both

arguments are unpersuasive. As already noted, Booker did not

affect the imposition of statutory minimums nor did it alter

the statutory requirements of § 3553(f). As to the correctness

of Valencia-Andrade, a three-judge panel may not overturn

Ninth Circuit precedent. United States v. Hardesty, 977 F.2d

1347, 1348 (9th Cir. 1992). In any event, Hernandez-Castro

does not present a clear case for overruling ValenciaAndrade. Hernandez-Castro candidly concedes that in 2003,

the Sentencing Commission amended U.S.S.G. § 5C1.2(a)(1)

—which reproduces the safety valve provision within the

Guidelines—to specify that the one criminal history point

requirement refers, for safety valve purposes, to the number

of points “before application of subsection (b) of 4A1.3

(Departures Based on Inadequacy of Criminal History Category).” U.S.S.G. § 5C1.2(a)(1). Thus, we reaffirm our holding

in Valencia-Andrade that district courts have no authority to

adjust criminal history points for the purpose of determining

eligibility for safety valve relief under 18 U.S.C. § 3553(f)(1),

even when the sentencing court concludes that the criminal

history calculation overstates the severity of the prior crimes.

AFFIRMED

426 UNITED STATES v. HERNANDEZ-CASTRO