# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22

- 50083 Summary Calendar

**____________ United States of America,**  Plaintiff

— Appellant **,**

versus **Chayna Holguin,** Defendant

— Appellee

**.**

**______________________________** Appeal from the United States District Court for the Western District of Texas USDC No. 3:21

- CR -13-1

**______________________________** Before **Higginbotham, Graves,** and **Ho,** Circuit Judges

**. Per Curiam**  **:** ***** Chayna Holguin pleaded guilty to importation of 40 grams or more of fentanyl and possession with intent to distribute 40 grams or more of fentanyl . These offenses carry five

- year statutory minimum sentences. See 21 U.S.C. §§ 952(a), 960(a)(1), (b)(2)(F) ; 21 U. S.C. § 841(a)(1), (b)(1)(B)(vi). However, o ver the Government’s objection, the district court

**_____________________**

* This opinion is not designated for publication. See **5th Cir . R.**  47.5. United States Court of Appeals Fifth Circuit 

### FILED March 16, 2023 Lyle W. Cayce Clerk Case: 22-50083 Document: 00516679541 Page: 1 Date Filed: 03/16/2023No. 22

- 50083

2 concluded that Holguin was eligible for safety valve relief under 18 U.S.C. § 3553(f), as amended by the First Step Act. Relying on the Ninth Circuit’s reasonin g in United States v. Lopez , 998 F.3d 431 (9th Cir. 2021), t he district
court determined that § 3553(f)(1) only excludes defendants (otherwise eligible under the other parts of the statute) who me e t all three disqualifying criteria enumerated in that subsection. Thus, although Holguin had a prior three

- point offense , she was eligible for safety valve relief because she did not also have four criminal history points, excluding points from a one

- point offense, and a prior two

- point violent offen se
. See § 3553(f)(1). The district court sentenced Holguin below the statutory minimum to concurrent terms of 37 months of imprisonment. The Government appeals the district court’s determination that Holguin was eligible for safety valve relief as provi ded in § 3553(f) and the resulting imposition of a sentence lower than the statutory minimum. We review the district court’s legal interpretation of the safety valve statute de

novo
. United States v. Towns , 718 F.3d 404, 407 (5th Cir. 2013).
A fter Holg uin’s judgment of conviction was entered, we decided United States v. Palomares , 52 F.4th 640 (5th Cir. 2022), pet ition for cert

. filed (U.S. Dec. 21, 2022) (No. 22

- 6391). We held in Palomares that “ defendants [are] ineligible for safety valve relief if they run afoul of any one of [the] requirements ” enumerated in § 3553(f) (1). 52 F.4th at 64 7. Looking to the text of the statute, we rejected the Ninth Circuit’s conjunctive approach of linguistic interpretation in L opez and conversely applied the distributive approach. See i d. at 64 2

- 47

. As both the Government and Holguin aptly agree, because Holguin had a prior three

- point offense, Palomares disqualifies her from safety valve relief under § 3553(f)

. See Palomares , 52 F.4th at 64 7. Further, although Holguin argues that Palomares was incorrectly decided as a matter of Case: 22-50083 Document: 00516679541 Page: 2 Date Filed: 03/16/2023No. 22

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3 statutory interpretation, she and the Government agree that our decision in Palomares is binding until the Supreme Court or this court sitting en banc overrules this safety valve issue

. See United States v. James , 950 F.3d 289, 292

- 93 (5th Cir. 2020)

. In light of the foregoing, Holguin’s sentence is **VACATED** , and the matter is **REMANDED** for further proceedings. Case: 22-50083 Document: 00516679541 Page: 3 Date Filed: 03/16/2023