Juan Manuel Pardo-Oseguera v. United States
SocialSecurity Securities Immigration
Whether the failure to include a safety-valve reduction is a plain error that should be corrected by the district court and appellate court
QUESTIONS PRESENTED A defendant in a federal criminal case, under the appropriate circumstances, is eligible for a reduction of 2 offense levels and to be sentenced without regard to any statutory minimum sentence if the court finds at sentencing that the defendant is eligible for the "safety-valve" provision set forth in 18 U.S.C. § 3553(f) and § 5C1.2 of the United States Sentencing Guidelines. The questions presented are: 1. Where the United States Probation Officer does not include in the Presentence Report a recommendation for the application of the "safety-valve" reduction and limitation on the statutory minimum for an eligible defendant, and counsel does not object to the lack of such safety-valve reduction, is the failure to include the safety-valve reduction (a) a plain error which the district court should have corrected in its oversight of sentencing and (b) a plain error which should be corrected by the appellate court? 2. Is the failure to include a safety-valve reduction, based on the assumption that a defendant in ineligible if he has a weapons enhancement applied at sentencing, which enhancement requires the defendant to overcome the weapons possession allegation using a "clearly improbable" standard, a significant procedural error where the defendant can show his entitlement to the safety-valve under a preponderance of the evidence standard, thereby becoming entitled to the safety-valve reduction?