United States v. Orozco, 121 F.3d 628 (11th Cir. 1997). · Go Syfert
United States v. Orozco, 121 F.3d 628 (11th Cir. 1997). Cases Citing This Book View Copy Cite
“under the sentencing guidelines, criminal history points are assigned for prior criminal convictions.”
23 citation events (12 in the last 25 years) across 11 distinct courts.
Strongest positive: United States v. Julian Garcon (ca11, 2022-12-06)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Julian Garcon
11th Cir. · 2022 · quote attribution · 1 verbatim quote · confidence high
under the sentencing guidelines, criminal history points are assigned for prior criminal convictions.
cited Cited as authority (rule) United States v. Branch
6th Cir. · 2008 · confidence medium
Cir. 1998), cert. denied, 526 U.S. 1011 (1999); United States v. Orozco, 121 F.3d 628, 630 (11th Cir. 1997); United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir. 1995). . . .
discussed Cited as authority (rule) United States v. Branch
6th Cir. · 2008 · confidence medium
See United States v. Robinson, 158 F.3d *592 1291, 1294 (D.C.Cir.1998), cert. denied, 526 U.S. 1011 , 119 S.Ct. 1155 , 143 L.Ed.2d 221 (1999); United States v. Orozco, 121 F.3d 628, 630 (11th Cir.1997); United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir.1995). ...
discussed Cited as authority (rule) United States v. Hunt
1st Cir. · 2007 · confidence medium
See United States v. Boddie, 318 F.3d 491, 494-97 (3d Cir.2003); United States v. Penn, 282 F.3d 879, 881-82 (6th Cir.2002); United States v. Webb, 218 F.3d 877, 881-82 (8th Cir.2000); United States v. Owensby, 188 F.3d 1244, 1246 (10th Cir.1999); United States v. Robinson, 158 F.3d 1291, 1293-94 (D.C.Cir.1998); United States v. Orozco, 121 F.3d 628, 630 (11th Cir.1997); United States v. Resto, 74 F.3d 22, 28 (2d Cir.1996); United States v. Valencia-Andrade, 72 F.3d 770, 773-74 (9th Cir.1995). 2 The meaning of the Guidelines is clear, and we agree with the holdings of our sister, circuits.
discussed Cited as authority (rule) United States v. Robert Brehm
11th Cir. · 2006 · confidence medium
Section 3553(f) sets five conditions, the first of which is that the defendant not have more than “1 criminal history point, as determined under the sentencing guidelines.” Id.; United States v. Orozco, 121 F.3d 628, 630 (11th Cir.1997) (per curiam).
discussed Cited as authority (rule) United States v. James Holmes
11th Cir. · 2005 · confidence medium
To be eligible for the safety-valve provision, a defendant must satisfy five conditions, the first of which is that he cannot have more than one criminal history point. 18 U.S.C. § 3553 (f); United States v. Orozco, 121 F.3d 628, 630 (11th Cir.1997) (per curiam); U.S. Sentencing Guidelines Manual § 5C1.2.
discussed Cited as authority (rule) United States v. Morton
4th Cir. · 2004 · confidence medium
United States v. Penn, 282 F.3d 879, 881 (6th Cir.2002) (safety valve provision limited to defendants who have no more than one criminal history point as calculated under § 4A1.1 regardless of whether district court departs under § 4A1.3); Webb, 218 F.3d at 881-82 ; United States v. Owensby, 188 F.3d 1244, 1246 (10th Cir.1999); United States v. Robinson, 158 F.3d 1291, 1294 (D.C.Cir.1998); United States v. Orozco, 121 F.3d 628, 630 (11th Cir.1997); United States v. Resto, 74 F.3d 22, 28 (2d Cir.1996); United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir.1995).
discussed Cited as authority (rule) United States v. Stevens
D. Me. · 2004 · confidence medium
See, e.g., United States v. Robinson, 158 F.3d 1291, 1294 (D.C.Cir.1998) (per curiam) (explaining that § 4A1.1 is a “mechanistic provision” which purely instructs sentencing court to add points for various carefully-defined criminal history occurrences and that nothing in § 4A1.1 suggests sentencing court has any discretion with respect to calculation of defendant’s criminal history score); United States v. Resto, 74 F.3d 22, 28 (2d Cir.1996) (holding defendant ineligible for safety valve because he had a criminal history category of IV, notwithstanding that sentencing judge elected to…
discussed Cited as authority (rule) United States v. Angelo Penn
6th Cir. · 2002 · confidence medium
See United States v. Robinson, 158 F.3d 1291, 1294 (D.C.Cir. *882 1998), cert. denied, 526 U.S. 1011 , 119 S.Ct. 1155 , 143 L.Ed.2d 221 (1999); United States v. Orozco, 121 F.3d 628, 630 (11th Cir.1997); United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir.1995).
discussed Cited as authority (rule) United States v. Justin Webb (2×)
8th Cir. · 2000 · confidence medium
Accord Robinson,158 F.3d at 1294; United States v. Orozco, 121 F.3d 628, 630 (11th Cir. 1997); United States v. Resto, 74 F.3d 22, 28 (2d Cir. 1996); United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir. 1995).
discussed Cited as authority (rule) United States v. Justin Webb
8th Cir. · 2000 · confidence medium
Accord -7- Robinson,158 F.3d at 1294; United States v. Orozco, 121 F.3d 628, 630 (11th Cir. 1997); United States v. Resto, 74 F.3d 22, 28 (2d Cir. 1996); United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir. 1995).
cited Cited as authority (rule) Barrett, Lynn J., In the Matter of:
11th Cir. · 2000 · confidence medium
See United States v. Cook, 181 F.3d 1232, 1233 (11th Cir.1999); United States v. Orozco, 121 F.3d 628, 629 (11th Cir.1997).
discussed Cited as authority (rule) Barrett, Lynn J., In the Matter of:
11th Cir. · 2000 · confidence medium
See United States v. Cook, 181 F.3d 1232, 1233 (11th Cir. 1999); United States v. Orozco, 121 F.3d 628, 629 (11th Cir. 1997). 16 Under the Guidelines, “otherwise used” means “that the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possession a firearm or other dangerous weapon,” while “brandished” means ““that the weapon was pointed or waved about, or displayed in a threatening manner.” U.S.S.G. § 1B1.1, comment. (n.1(g), 1(c)) (1998); see also U.S.S.G. § 2B3.1, comment. (n.1) (1998) (referring to § 1B1.1 commentary in de…
cited Cited as authority (rule) United States v. Cover
11th Cir. · 2000 · confidence medium
See United States v. Cook, 181 F.3d 1232, 1233 (11th Cir.1999); United States v. Orozco, 121 F.3d 628, 629 (11th Cir.1997).
discussed Cited as authority (rule) United States v. Owensby
10th Cir. · 1999 · confidence medium
See United States v. Robinson, 158 F.3d 1291, 1294 (D.C.Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1155 , 143 L.Ed.2d 221 (1999) 2 ; United States v. Orozco, 121 F.3d 628, 630 (11th Cir.1997); United States v. Ward, No. 95-5967, 1996 WL 531017, at *1 (4th Cir. Sept.19, 1996) (unpublished); United States v. Moog, Nos. 95-3389, 95-3417, 95-4184, 1996 WL 431343 , at *1 (8th Cir. Aug.2, 1996) (unpublished); United States v. Resto, 74 F.3d 22, 28 (2d Cir.1996); United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir.1995).
discussed Cited as authority (rule) United States v. Robles
10th Cir. · 1999 · confidence medium
Cir. 1998), cert. denied, 119 S. Ct. 1155 (1999); United States v. Orozco , 121 F.3d 628, 630 (11th Cir. 1997); United States v. Ward , No. 95-5967, 1996 WL 531017, at **1 (4th Cir. Sept. 19, 1996) (unpublished); United States v. -4- Moog , Nos. 95-3389, 95-3417, 95-4184, 1996 WL 431343 , at **1 (8th Cir. Aug. 2, 1996) (unpublished); United States v. Resto , 74 F.3d 22, 28 (2d Cir. 1996); United States v. Valencia-Andrade , 72 F.3d 770, 774 (9th Cir. 1995).
discussed Cited "see" United States v. Jermaine Albert Boddie, A/K/A Bodey
3rd Cir. · 2003 · signal: accord · confidence high
Accord United States v. Orozco, 121 F.3d 628, 630 (11th Cir.1997) (“The plain language of the relevant guideline and the statute both say that in order to be eligible for the safety-valve provision, a defendant cannot have ‘more than 1 criminal history point.’ Neither speaks about the criminal history category....
discussed Cited "see" United States v. Villalobos-Reyes
10th Cir. · 2000 · signal: see · confidence high
See United States v. Orozco, 121 F.3d 628, 630 (11th Cir. 1997); United States v. Showalter, No. 96-4107, 1997 WL 1886 (4th Cir. Jan. 3, 1997) (unpublished); United States v. Ward, No. 95-5967, 1996 WL 531017 (4th Cir. Sept. 19, 1996) (unpublished); United States v. Moog, Nos. 95-3389, 95-3417, 95-4184, 1996 WL 431343 (8th Cir. Aug. 2, 1996) (unpublished); United States v. Resto, 74 F.3d 22, 28 (2d Cir. 1996); United States v. Valencia-Andrade, 72 -4- Mr. Villalobos Reyes’ sentence would thus not have been affected by an additional downward departure under the Guidelines, and a motion for su…
cited Cited "see" United States v. Robinson, Dennis D.
D.C. Cir. · 1998 · signal: see · confidence high
See United States v. Orozco, 121 F.3d 628 (11th Cir.1997); United States v. Resto, 74 F.3d 22 (2d Cir.1996); United States v. Valencia-Andrade, 72 F.3d 770 (9th Cir.1995).
cited Cited "see" United States v. Robinson
D.D.C. · 1997 · signal: see · confidence high
See United States v. Orozco, 121 F.3d 628, 630 (11th Cir.1997); United States v. Resto, 74 F.3d 22, 27 (2d Cir.1996); United States v. Valencia-Andrade, 72 F.3d 770, 773-774 (9th Cir.1995). 6 .
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Miguel OROZCO, Jr., A.K.A. Pato, Defendant-Appellant
97-2013.
Court of Appeals for the Eleventh Circuit.
Sep 9, 1997.
121 F.3d 628
1997 U.S. App. LEXIS 23624
1997 WL 485716
David Frash, Tampa, FL, for Defendant-Appellant., Charles R. Wilson, United States Attorney, Linda Julin McNamara, Asst. U.S. Atty., Tampa, FL, for Plaintiff-Appellee.
Birch, Carnes, Clark, Per Curiam.
Cited by 22 opinions  |  Published
PER CURIAM:

Miguel Orozco, Jr., appeals his sentence of 120 months’ imprisonment for conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. The district court sentenced Orozco to the statutory mandatory minimum term of incarceration. At sentencing, the district court overruled Orozco’s argument that the court had the authority to apply the “safety-valve” provision of 18 U.S.C. § 3553(f) and impose a sentence below the mandatory minimum because the district court had granted a downward departure in his criminal history category that placed him in Category I. We hold that a defendant is not eligible for the safety-valve provision if the defendant’s criminal history category is Category I because of a downward departure when the defendant had more than one criminal history point, and affirm Orozco’s sentence.

I.

From at least 1993 until March 1996, Miguel Orozco, Jr. and his father, Miguel Orozco, distributed marijuana in the Tucson, Arizona area. As part of their distribution, they provided marijuana on numerous occasions to be transported to Florida for further distribution by various individuals. One of those individuals who purchased marijuana and arranged for its transportation, Rick Johnson, was arrested in 1995. Johnson identified the Orozcos as the source of his supply, and introduced an undercover agent to the Orozcos. The undercover agent had conversations with the Orozcos about purchasing marijuana, and on March 7, 1996, Orozco delivered approximately 185 pounds of marijuana to an undercover agent in Tucson, Arizona.

Orozco subsequently pled guilty to one count of conspiracy to possess with intent to distribute 1,000 or more kilograms of marijuana. That count carries a mandatory minimum sentence of 120 months’ imprisonment and a maximum sentence of life imprisonment.

Orozco’s criminal history included a conviction for domestic violence in Tucson, for which he had received a sentence of 12 months’ unsupervised probation. Orozco was serving that sentence of probation at the time of his arrest for the present offense. Pursuant to the United States Sentencing Guidelines (U.S.S.G.) § 4Al.l(c), Orozco received one criminal history point for the conviction, and pursuant to § 4Al.l(d), he received two points because he was on probation at the time of the new offense, resulting in a total of three points, which placed him in criminal history Category II.

At sentencing, the district court granted Orozco a downward departure to criminal history category I pursuant to U.S.S.G. § 4A1.3, finding that Orozco’s criminal history was overstated. The district court also granted him a two-level reduction for minor role in the offense, which lowered his total offense level from 31 to 29, resulting in a guidelines range of imprisonment from 87 to 108 months. Orozco argued that the safety-valve provision of 18 U.S.C. § 3553(f) was applicable because of the downward departure to criminal history Category I, but the court found that the safety-valve provision did not apply because Orozco still had three criminal history points. The district court stated , that it did not have the authority to sentence Orozco below the minimum mandatory because the departure did not remove the three criminal history points.

II.

Orozco argues that the district court erred in sentencing him to the statutory mandatory minimum sentence without applying the safety-valve provision of 18 U.S.C. § 3553(f)(1) after the district court granted his request for a downward departure to criminal history Category I. In guidelines eases, we review the district court’s interpretation of the guidelines de novo. United [*630] States v. Pompey, 17 F.3d 351, 353 (11th Cir.1994).

Under the sentencing guidelines, criminal history points are assigned for prior criminal convictions. [1] The total criminal history points determine a defendant’s criminal history category, which combined with criminal offense level, determines the range of the sentence that the district court can impose. [2] A district court is permitted to depart downward from the criminal history category if the category “significantly over-represents the seriousness of a defendant’s criminal history.” [3]

U.S.S.G. § 5Gl.l(b) instructs the district court to impose the statutorily required minimum sentence when the mandatory minimum is greater than the maximum of the applicable guideline range. The safety-valve provision permits a district court to apply a guideline range that is below the statutory minimum mandatory sentence under certain specified circumstances. [4] In order to depart from the mandatory minimum sentence of 21 U.S.C. § 841, the district court must find, inter alia, that “the defendant does not have more than one criminal history point, as determined under the sentencing guidelines.” [5] The Application Notes to this section interpret this passage to mean “more than one criminal history point as determined under § 4A1.1.” [6]

Orozco argues that U.S.S.G. § 5C1.2 is not a departure provision, but regulates adjustments made within the framework of the guidelines. This argument is specious and irrelevant. The plain language of the relevant guideline and the statute both say that in order to be eligible for the safety-valve provision, a defendant cannot have “more than 1 criminal history point.” [7] Neither speaks about the criminal history category. When the terms of a stat-

ute are “unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.” [8] There is no need to look beyond the plain language of the statute and the guideline, and we hold that when a defendant has more than one criminal history point, the safety-valve provision is unavailable for application to that defendant, even though the defendant’s criminal history category is Category I. [9]

AFFIRMED.

1

. U.S.S.G. §§ 4A1.1, 4A1.2.

2

. U.S.S.G. Ch. 5 Pt. A.

5

. Id.

6

. U.S.S.G. § 5C1.2, comment, (n.l).

8

. Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991).

9

. Two other circuits have examined this issue, and both have reached the same conclusion. See United States v. Valencia-Andrade, 72 F.3d 770, 773-74 (9th Cir.1995); United States v. Resto, 74 F.3d 22, 27 (2d Cir.1996).