Eleventh Circuit Voices Disagreement Re Applicability of 3553 Safety-Valve to 3582 Procedings

A district court may not modify a term of imprisonment once it has been imposed, except in some cases where modification is expressly permitted by statute or Fed.R.Crim.P. 35. 18 U.S.C. § 3582(c)(1)(B). One circumstance in which modification is permitted is specified in 18 U.S.C. § 3582(c)(2), which grants “a district court ... discretion to reduce the term of imprisonment of an already incarcerated defendant when that defendant was sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” United States v. Bravo, 203 F.3d 778, 780 (11th Cir.2000). The district court can reduce the sentence on its own motion and without a hearing. 18 U.S.C. § 3582(c)(2); Fed.R.Crim.P. 43(b)(4).

The question we must resolve today is this one: can a district court grant safety-valve relief when reducing a defendant's sentence pursuant to section 3582(c)(2)? The answer is “no,” because the safety-valve is inapplicable to sentence-modification proceedings.

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We agree with the Ninth Circuit that section 3553(f)'s “references to the time of sentencing all support a construction requiring that the safety valve be applied only if the findings were made when the criminal was originally sentenced, as opposed to the later time when his sentence was reduced.” ^FN6 United States v. Stockdale, 129 F.3d 1066, 1068 (9th Cir.1997).

FN6. We must disagree with the circuits that have concluded that the safety-valve does apply in section 3582(c)(2) proceedings. See, e.g., United States v. Mihm, 134 F.3d 1353, 1355 (8th Cir.1998); United States v. Clark, 110 F.3d 15, 18 (6th Cir.1997).