United States v. Olvera ( 2023 )

Case: 22-40094 Document: 00516739041 Page: 1 Date Filed: 05/04/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 4, 2023
No. 22-40094 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Casey Olvera,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:17-CR-988-1
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Casey Olvera appeals the 120-month sentence imposed following his
guilty-plea conviction for possession with intent to distribute marijuana.
Olvera argues that the district court erred by determining that he was
ineligible for relief under the safety-valve provision of 18 U.S.C. § 3553(f). In
particular, he asserts that the word “and” in § 3553(f)(1) should be
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40094 Document: 00516739041 Page: 2 Date Filed: 05/04/2023
No. 22-40094
interpreted to mean that a defendant is ineligible for safety-valve relief only
if all three disqualifying conditions apply and, based on that interpretation,
that he is eligible for relief because he did not have more than four criminal
history points or a prior two-point violent offense under § 3553(f)(1)(A) and
(C).
The Government has filed an unopposed motion for summary
affirmance, or, alternatively, for an extension of time to file its brief. The
Government correctly asserts that the issue is foreclosed by United States v.
Palomares, 52 F.4th 640 (5th Cir. 2022), petition for cert. filed (U.S. Dec. 21,
2022) (No. 22-6391), which was decided while this appeal was pending. In
Palomares, the majority panel used a “distributive approach” to interpret
§ 3553(f)(1) and concluded that criminal defendants are “ineligible for safety
valve relief [under § 3553(f)(1)] if they run afoul of any one of its
requirements.” Palomares, 52 F.4th at 647. Because the Government’s
position “is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper.
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time is DENIED as
unnecessary.
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