1

The Honorable Richard G. Kopf, Chief Judge, United States District Court for

the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-1378 

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * District of Nebraska.

*

Amanda Black, * [UNPUBLISHED] 

* 

Appellant. *

___________

Submitted: September 14, 2005

Filed: September 21, 2005 

___________

Before BYE, BRIGHT, and SMITH, Circuit Judges.

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PER CURIAM.

Amanda Black (Black) appeals the sentence imposed by the district court1

claiming error resulting from the district court's failure to recognize its authority to

depart in the calculation of criminal history points under the Sentencing Guidelines

for purposes of determining eligibility under the "safety valve" provision of 18 U.S.C.

§ 3553(f). Black argues that the district court's approach violates the recent

pronouncements in United States v. Booker, 125 S. Ct. 738 (2005).
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To qualify for "safety valve" relief from the mandatory minimum sentence, a

defendant must establish that she meets all five of the statutory prerequisites. 18

U.S.C. § 3553(f); United States v. Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir.

2005) (en banc). One such requirement states that a defendant shall not be eligible

for "safety valve" relief if she has more than one criminal history point, as tabulated

under the Sentencing Guidelines. 18 U.S.C. § 3553(f)(1).

"The district court's safety valve findings can be overturned only if they are

clearly erroneous." Alvarado-Rivera, 412 F.3d at 947 (citation omitted). If the record

supports the court's findings, this Court must affirm the district court. Id. (citing

United States v. Tournier, 171 F.3d 645, 647 (8th Cir. 1999)).

It is undisputed that as tabulated under the Sentencing Guidelines, Black had

three criminal history points, two of which were assigned for committing the instant

offense while on probation. See U.S.S.G. § 4A1.1(d).

Booker is "wholly inapposite" to sentences arising under the statutory

mandatory minimum. See United States v. Childs, 403 F.3d 970, 972 (8th Cir. 2005);

United States v. Bolanos, 409 F.3d 1045, 1049 (8th Cir. 2005); United States v.

Rojas-Coria, 401 F.3d 871, 874 n.4 (8th Cir. 2005). Indeed, Booker does not apply

to the judicial determination of a prior conviction or to the calculation of criminal

history points under the Sentencing Guidelines. See Booker, 125 S. Ct. at 756;

United States v. Fagans, 406 F.3d 138, 141-42 (2d Cir. 2005) (criminal history

calculation under the Guidelines did not implicate the Sixth Amendment); United

States v. Carpenter, 406 F.3d 915, 917 (7th Cir. 2005) ("Criminal history is all about

prior convictions; its ascertainment therefore is an issue of law excluded by Booker's

own formulation. . . ."). 

The addition or subtraction of criminal history points for the purpose of

determining "safety valve" eligibility is not allowed under the Sentencing Guidelines.
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U.S.S.G. § 4A1.3(b)(3)(B); Id. § 5C1.2 cmt., app. note 1. See also United States v.

Robinson, 158 F.3d 1291 (D.C. Cir. 1998). Section 3553(f) provides no discretion

to a judge in calculating criminal history points in any manner other than that

prescribed by the Sentencing Guidelines. Therefore, the district court correctly

concluded that it did not have discretion to alter Black's criminal history points for

purposes of determining "safety valve" eligibility.

We therefore affirm the district court.

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