[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12372

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

LAMAR LAURISTON LINDSAY, 

a.k.a. Linsey Lamar,

a.k.a. Lamar S. Rowe, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

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2 Opinion of the Court 22-12372

D.C. Docket No. 0:22-cr-60018-WPD-1

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Before NEWSOM, GRANT and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Lamar Lindsay, proceeding with counsel, appeals 

his total sentence of 135 months’ imprisonment for attempting to 

distribute methamphetamine and possessing methamphetamine 

with intent to distribute. On appeal, he argues that the district 

court erred by finding that he was ineligible for safety valve relief

under 18 U.S.C. § 3553(f) because he met just one of the disqualifying criteria in § 3553(f)(1). Having read the parties’ briefs and reviewed the record, we vacate Lindsay’s sentence and remand this 

case to the district court for resentencing.

I.

We review a district court’s interpretation of § 3553(f) de 

novo. United States v. Garcon, 54 F.4th 1274, 1277 (11th Cir. 2022) 

(en banc), petition for cert. filed (U.S. Mar. 8, 2023) (No. 22-851). 

II.

If a defendant meets the criteria in § 3553(f), he is entitled to 

a two-point offense level reduction under U.S.S.G. § 2D1.1(b)(18), 

and the district court must sentence him without regard to any statutory minimum sentence. U.S.S.G. §§ 2D1.1(b)(18), 5C1.2; 18 

U.S.C. § 3553(f). The safety valve provision in § 3553(f)(1) applies 

if the district court finds that the defendant does not have more 

than four criminal history points, a prior three-point offense, and a 

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22-12372 Opinion of the Court 3

prior two-point violent offense. § 3553(f)(1). In Garcon, we held

that the word “and” in § 3553(f)(1) is conjunctive, and that a defendant is not disqualified from safety valve relief unless he meets

all three of the disqualifying criteria listed in § 3553(f)(1). Garcon, 

54 F.4th at 1278-80. The government concedes that, under this 

rule, Lindsay is eligible for safety valve relief.

III.

The record demonstrates that the district court erred by 

finding that Lindsay did not qualify for safety valve relief under 

§ 3553(f)(1). We stated in Garcon that a defendant is ineligible for 

safety valve relief solely if all three disqualifying criteria in § 

3553(f)(1) are met. See Garcon, 54 F.4th at 1278. The record indicates that Lindsay had one disqualifying factor under § 3553(f)(1) 

because he had a prior three-point offense, but he did not have 

more than four criminal history points or a prior violent two-point

offense. See § 3553(f)(1). Because he did not meet all three disqualifying criteria, he was not disqualified from obtaining safety valve 

relief. See Garcon, 54 F.4th at 1278. 

Here, the district court declined to apply the safety valve; 

however, it selected a sentence within the guidelines range that 

would have applied if it had applied the safety valve provision. Under United States v. Keene, 470 F.3d 1347, 1349-50 (11th Cir. 2006), a 

court can render a purposed guidelines error harmless by stating 

that it would impose the same sentence even if the defendant prevailed on that issue. If the district court makes a clear Keene finding, 

then we need not review the disputed issue, but rather, we can 

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affirm if the final sentence imposed based on the § 3553 factors is 

reasonable. Id. The district court did not make a clear Keene finding; thus, we conclude the sentencing error was not harmless. 

Lindsay qualified for a two-level safety valve reduction, and he was 

entitled to be sentenced without regard to any statutory minimum 

sentence. Accordingly, the district court erred in its determination 

that Lindsay was not eligible for safety valve relief, and we remand 

to the district court for resentencing consistent with this opinion.

VACATED AND REMANDED. 

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