2/5/26: Safety valve decision

In United States v. Engstrom, --- F.4th ---, No. 24-1878 (9th Cir. 2025), the Court reversed the district court’s decision that Engstrom was eligible for safety valve relief under 18 U.S.C. § 3553(f), vacated the sentence imposed below the statutory minimum, and remanded for resentencing in a case in which Engstrom pleaded guilty to drug-related crimes.

This is a reversal in a government appeal on plain-error review.  The silverlining is that it contains helpful language we can use in our own plain-error cases. 

The government appeals the district court’s order sentencing Paul Engstrom to 46 months’ imprisonment for drug-related crimes. The district court sentenced him below the statutory minimum, granting him safety valve relief under 18 U.S.C. § 3553(f). But Engstrom was ineligible for safety valve relief since he failed to provide a complete debrief to the government before sentencing. He is also ineligible under Pulsifer v. United States, 601 U.S. 124 (2024), which applies to cases pending on direct appeal. We therefore reverse and remand to the district court for resentencing.

In this case, the district court imposed a below-minimum sentence after holding a resentencing hearing under Fed. R. Crim. P. 35.  The district court concluded it was authorized to hold a R. 35 resentencing because it clearly erred in sentencing Engstrom to 70 months during the initial sentencing. 

The parties dispute whether we can review the district court’s order holding a Rule 35 resentencing hearing. The government argues that it only forfeited its argument by not objecting. Thus, it asserts we should review for plain error. United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). But Engstrom argues that the government waived this challenge by not objecting, thus precluding our review. 

No waiver occurred. “[F]orfeiture is the failure to make a timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right.” United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (cleaned up). “Forfeited rights are reviewable for plain error, while waived rights are not.” Id. If a party “invite[s] the error, and relinquishe[s] a known right, then the error is waived and therefore unreviewable.”

The government did not object to the district court’s Rule 35 hearing. But failing to object to a district court’s sentencing decision—or even affirmatively endorsing it—is not waiver. United States v. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019). Waiver occurs only if “there [is] evidence indicating the [parties] knew of their rights and chose to relinquish them anyway.” Id.; see also Perez, 116 F.3d at 845 (collecting cases showing knowing relinquishment of right).

The district court’s choice to hold a Rule 35 resentencing hearing is not plain error.

The district court did not err when it concluded that it needed to resentence Engstrom. Under the safety valve provision, “a court is to sentence a defendant without regard to any statutory minimum if it finds that” the five statutory criteria in § 3553(f) are met. Pulsifer, 601 U.S. at 128 (cleaned up). The district court has an independent duty to determine whether the safety valve applies and, if so, it then sentences the defendant without regard to the statutory minimum for a particular offense.  

The district court’s actions were clear error of a “technical” kind under Rule 35(a). See Technical, OXFORD ENGLISH DICTIONARY (online ed. 2009) (sense 2.d) (involving “strict legal interpretation”); United States v. M. M., 23 F.4th 216, 221 (3d Cir. 2021) (“arithmetical and technical errors” are “easily identifiable and readily ascertained from the sentencing proceeding and judgment,” akin to misapplying “mandatory” sentencing conditions). The district court thought that it erred by considering the mandatory minimum once it made clear that it was giving Engstrom the benefit of the safety valve. See United States v. Mejia-Pimental, 477 F.3d 1100, 1109 (9th Cir. 2007). In such a situation, a district court has the latitude to conduct a Rule 35 rehearing to correct the technical error. If the district court wanted to “give [the benefit of the safety valve] to Engstrom,” then it needed to sentence him without regard to the mandatory minimum. Whether the district court was correct that Engstrom should have received the benefit of the safety valve (it was not), it had the latitude under Rule 35 to correct its perceived technical error of considering a mandatory minimum sentence for a defendant it thought should benefit from safety valve relief. Since the district court identified a clear error in the original sentencing hearing, conducting a Rule 35 rehearing was not error. The government’s argument thus fails on the first step of plain error review.

Engstrom is not eligible for safety valve relief for two reasons. First, Engstrom did not satisfy the statutory debrief requirement in § 3553(f)(5). Second, Pulsifer also precludes Engstrom from safety valve relief.

The district court failed to abide by the three “basic rules of statutory interpretation”: “(1) Read the statute; (2) read the statute; (3) read the statute!”  

To satisfy the debrief requirement, Engstrom therefore should have provided “all the information available to him, regardless of whether it was useful or already known to the government.”

[A] defendant can affirmatively meet the requirement—at least when the government refuses a meeting—without a formal debrief. But the statute still requires a defendant to affirmatively provide “all information and evidence the defendant has concerning the offense” to the government not later than the time of the sentencing hearing. § 3553(f)(5) (emphasis added). The district court read this requirement out of the statute, characterizing it as “no requirement at all,” proceeding as if virtually any truthful statement “given upon arrest,” a truthful “guilty plea allocution,” or “[a]dditional statements” may be enough. We reject this approach.

Engstrom thus did not meet the safety valve requirement. He did not provide a complete disclosure. The district court never asked him whether he had given all the information about the crime to the government, nor did the record support the existence of such disclosure. Engstrom never claimed that such disclosure occurred. Given these circumstances, Engstrom could not qualify for safety valve relief.

Engstrom cannot benefit from the safety valve for an additional reason. The Supreme Court’s decision in Pulsifer v. United States, 601 U.S. 124 (2024), forecloses such relief.  

Engstrom had a prior 3-point offense for conspiracy to distribute a controlled substance (but neither of the other two disqualifying offenses). Therefore, under Pulsifer, Engstrom is categorically ineligible for safety valve relief.

The district court rendered its sentence before the Supreme Court issued Pulsifer. But ordinarily “an error is plain if it is contrary to the law at the time of appeal.”

The opinion also contains a lengthy discussion of the Ex Post Facto Clause, its history, and its relationship to the due process notice requirement. 

At its core, the due process right to fair notice addresses “the unfairness of imposing new burdens on persons after the fact.” Id. at 270. It ensures that the government is not “free to change the law retroactively based on shifting political winds, [because] it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1146 (10th Cir. 2016) (Opinion of Gorsuch, J.). But absent any such concerns—as in this case—a federal court has an unflagging obligation to exercise the judicial power in its normal mode (i.e., retroactively). 

Applying Pulsifer here does not violate Engstrom’s due process right. The application of subsequent judicial decisions on direct appeal does not violate a defendant’s due process when, as here, Pulsifer’s interpretation of § 3553(f)(1) was foreseeable.