Effort to Booker-ize safety valve rejected by 2d Circuit

The Second Circuit today in US v. Ramirez, No. 03-1280 (2d Cir. Sept. 27, 2005) (available here), rejected an effort to use Booker expand the application of section 3553(f)(1), which provides a so-called safety valve escape from the application of mandatory minimums.  This introductory paragraph explains the issue, and the result, in Ramirez:

On appeal, Ramirez argues that the district court should have considered the Guidelines advisory for purposes of calculating his criminal history points.  He also contends that section 3553(f)(1) itself, by virtue of its reference to and incorporation of a Guidelines term…, should be considered advisory post-Booker.  Ramirez does not dispute the district court’s determination … that he had two criminal history points.  Neither does he contend that the court’s consideration of the fact of his prior New York State convictions for assault and for “Criminal Facilitation in the Fourth Degree” in determining his criminal history points violated the Sixth Amendment…. Instead, he asserts that the court erred in “follow[ing] the letter of the safety valve provision rather than its own assessment that the criminal history categorization of defendant over-stated the seriousness of his situation” because “the mandatory duty to apply the Guidelines [was] excised” by Booker. Appellant’s Br. at 11.  We are unpersuaded.