United States v. Morrell

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 12, 2024
• Docket: 24-2047
• Status: Unpublished

Opinion

Appellate Case: 24-2047 Document: 010111078619 Date Filed: 07/12/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 12, 2024 _______________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 24-2047 (D.C. No. 1:20-CR-01900-MV-1) KENDEL DEWAYNE MORRELL, (D. N.M.) a/k/a Keymo,

Defendant - Appellee. _______________________________________

ORDER AND JUDGMENT * _______________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _______________________________________

This appeal involves a statutory minimum of five years for

distributing methamphetamine. 21 U.S.C. § 841(a)(1), (b)(1)(B), § 846.

This minimum would ordinarily prevent a district court from imposing a

sentence of less than five years. See United States v. Cornelius, 696 F.3d

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 24-2047 Document: 010111078619 Date Filed: 07/12/2024 Page: 2

1307, 1327 (10th Cir. 2012). But a so-called safety valve allows a court to

dip below the statutory minimum for defendants who are eligible.

18 U.S.C. § 3553(f)(1). Eligibility turns on three factors, 1 and the district

court considered whether defendants are eligible when they satisfy just one

or two of these factors. The district court answered yes and applied the

safety valve, sentencing the defendant below the statutory minimum.

The government appealed. Before briefing began, however, the

Supreme Court concluded that the safety valve requires satisfaction of all

three factors. Pulsifer v. United States, No. 22-340, 2024 WL 1120879

(U.S. Mar. 15, 2024). Given this conclusion, the government moves for

summary reversal.

The defendant concedes that the district court’s ruling is invalid

based on the new Supreme Court opinion. 2 But the defendant argues that

1 These factors are the absence of

• 5 criminal-history points,

• a prior offense carrying 3 criminal-history points, and

• a prior violent offense carrying 2 criminal-history points.

18 U.S.C. § 3553(f)(1). 2 The defendant admits that he couldn’t satisfy two of the factors because he had at least 5 criminal-history points, including a 3-point offense.

2 Appellate Case: 24-2047 Document: 010111078619 Date Filed: 07/12/2024 Page: 3

the government forfeited this challenge by failing to preserve it in district

court. We disagree.

The government argued in district court that the safety valve required

satisfaction of all three factors. The district court addressed this argument

and rejected it. The defendant argues that the government needed to object

when the district court ruled. But the federal rules relieve parties of the

need to announce exceptions to a ruling. Fed. R. Crim. P. 51(a). The

government had already presented its argument to the district court, which

rejected the argument. See United States v. Hernandez-Rodriguez, 352 F.3d

1325, 1328 (10th Cir. 2003) (stating that the appellant can challenge a

ruling on a ground that the district court addresses regardless of whether

the parties had raised the issue). The government had no need to tell the

district court that it had erred in siding with the defendant on this issue.

Such a statement would serve little purpose because the district court

already knew the government’s position.

Because the government preserved its appellate argument, the only

remaining issue is whether the district court erred in finding eligibility for

the safety valve without satisfaction of all three factors. The defendant

concedes that the district court erred in light of the new Supreme Court

3 Appellate Case: 24-2047 Document: 010111078619 Date Filed: 07/12/2024 Page: 4

opinion. We thus grant the government’s motion for summary reversal and

remand for resentencing.

Entered for the Court

Robert E. Bacharach Circuit Judge