In US v. Ricardo McKoy, No. 05-2461 (June 19, 2006) (click here) the 3rd Cir addressed how courts in the post-Booker world should apply the the safety valve provision, 18 usc 3553(f). This provision permits a sentence below the applicable mandatory minimum sentence under the drug trafficking laws if certain conditions are met. One of the conditions is that the defendant "not have more than 1 criminal history point, as determined under the sentencing guidelines."
Defendant had pled guilty to conspiracy to distribute more than 50 grams of crack cocaine. This amount triggers the 10 year mandatory minimum sentence under 21 usc 841(b)(1)(A), which the district court imposed over defense objection. Defendant argued that although he had 4 criminal history points, they were all for juvenile dispositions which should not count.
The Circuit affirmed, holding that the prior juvenile dispositions did count towards the criminal history points, and precluded application of the safety valve. The Circuit first rejected the defense argument that the juvenile dispositions should not count because under New Jersey law juveniles are not sentenced, but instead subject to a "dispositional hearing." The Circuit ruled that federal law controls regarding what constitutes a "sentence" for criminal history purposes, and "prior sentences" are defined to include juvenile sentences, even if they are not called "sentences" by the state. The Circuit likewise rejected the argument that the juvenile dispositions did not count because they were "diversionary," holding that they were not diversionary because there was no deferral of prosecution. Last, the Circuit rejected the argument that the courts should treat section 3553(f) as advisory under Booker. The Circuit reasoned that while Booker rendered the guidelines advisory by striking section 3553(b)(1), the Supreme Court left the remainder of 3553 in tact, including 3553(f). In addition, the Circuit noted that "Booker is inapplicable to situations in which the judge finds only the fact of the prior conviction." Since the criminal history points did not require the court to consider the underlying circumstances of the prior juvenile sentences, but just the fact of the prior convictions, there was no violation of Booker. Because the criminal history points counted, the safety valve was inapplicable and the 10 year mandatory minimum sentence was valid.