United States Court of Appeals For the First Circuit

No. 18-1710

UNITED STATES OF AMERICA,

Appellee,

v.

ÁNGEL DE LA CRUZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch, Selya, and Kayatta, Circuit Judges.

Kevin E. Lerman, with whom Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, and Franco L. Pérez-Redondo, Research & Writing Specialist, were on brief, for appellant. Antonio L. Pérez-Alonso, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

May 26, 2021 LYNCH, Circuit Judge. Ángel De la Cruz and two others

were intercepted by the U.S. Coast Guard while smuggling drugs on

a small ship in the waters north of Puerto Rico. The Coast Guard

seized a large amount of cocaine from the ship and arrested De la

Cruz and the other two crewmembers. They were brought to Puerto

Rico and charged by indictment with several drug-related offenses,

including violations of the Maritime Drug Law Enforcement Act

("MDLEA"),

and 70506. The MDLEA offenses

carried a mandatory minimum sentence of ten years' imprisonment.

See

§ 70506(a)-(b);

(b)(1)(B) (2018).

De la Cruz pleaded guilty to all counts. As to

sentencing, he argued that he qualified for "safety valve" relief,

which authorizes a district court to impose a sentence below the

statutorily prescribed mandatory minimum sentence for certain

enumerated offenses if the court makes several specific factual

findings at sentencing. See

(f) (2018). The

district court held that De la Cruz was ineligible for safety valve

relief for his MDLEA offenses because they were not among those

offenses specifically enumerated in the safety valve statute, and

it sentenced him to the mandatory minimum sentence of ten years'

imprisonment under the MDLEA. We now join the majority of circuits

in holding that MDLEA offenses were not safety-valve eligible under

the then-applicable safety valve provision and so affirm.

- 2 - I.

Because De la Cruz pleaded guilty, "we draw the facts

from the plea colloquy, the unchallenged portions of the

presentence investigation report, and the transcript of the

sentencing hearing." United States v. Padilla-Colón,

(1st Cir. 2009).

On December 10, 2017, the U.S. Coast Guard detected a

suspicious vessel traveling at a high rate of speed north of

Fajardo, Puerto Rico. A Coast Guard team intercepted and boarded

the ship and found three Dominican nationals on board, including

De la Cruz, as well as fifty-three bales of suspected narcotics.

The government of the Dominican Republic did not claim nationality

over the ship. De la Cruz does not question that both he and the

ship were subject to U.S. jurisdiction.

The Coast Guard team conducted field tests of the bales

of suspected narcotics and they tested positive for cocaine. All

three crewmembers were arrested and brought to Puerto Rico. About

1,325 kilograms of cocaine were seized from the ship.

De la Cruz was indicted on one count of conspiracy to

possess with intent to distribute five kilograms or more of a

controlled substance on board a vessel subject to the jurisdiction

of the United States in violation of the MDLEA,

and 70506; one count of aiding or abetting the MDLEA offense in

violation of §§ 70503 and 70506 and

; and one count

- 3 - of conspiracy to import into the United States five kilograms or

more of a controlled substance in violation of

,

960, and 963.

In March 2018, De la Cruz entered a straight plea of

guilty to all three counts. He argued for a safety valve

reduction, and the government opposed and argued that he was

ineligible for safety valve relief as a matter of law because the

applicable safety valve provision did not apply to MDLEA offenses.

The government argued that Congress had deliberately chosen in the

text of the safety valve statute to exclude MDLEA offenses from

those eligible for safety valve relief by explicitly including

other offenses in the safety valve statute, but not MDLEA offenses.

The district court agreed with the government and ruled

that De la Cruz was ineligible for safety valve relief in a written

memorandum and order in June 2018. The district court relied on

a previous decision it had written in which it had held that the

plain language of the safety valve statute did not apply to

offenses under the MDLEA and that the history of the MDLEA and

safety valve statute and case law from other circuits further

confirmed that conclusion. See United States v. Espinal-Mieses,

(D.P.R. 2018). The court went on to

conclude that even though De la Cruz had also been convicted of

non-MDLEA offenses, his sentence could not fall below the mandatory

minimum of ten years' imprisonment for the MDLEA offenses. De la

- 4 - Cruz filed a motion for reconsideration, which the district court

denied.

At the sentencing hearing in July 2018, the district

court denied De la Cruz's request for a minor role reduction.1

Nonetheless, it varied downward and imposed the mandatory minimum

sentence of ten years' imprisonment as to each count to be served

concurrently.

De la Cruz timely appealed his sentence.

II.

De la Cruz makes two primary arguments: (1) that the

district court erroneously determined that the

(f)

safety valve provision did not apply to MDLEA offenses such that

it could not sentence him below the ten-year mandatory minimum;

and (2) that the court erred in denying the minor role reduction.2

1 The court did apply a two-level reduction to De la Cruz's offense level under United States Sentencing Guidelines Manual § 2D1.1(b)(17), to which both the defendant and the government agreed. Under the then-applicable 2016 Guidelines, § 2D1.1(b)(17) provided for a two-level reduction if the defendant met the five fact-based criteria under

(f), even if the defendant did not qualify for the safety valve relief authorizing a sentence below the applicable statutory minimum. See U.S. Sent'g Guidelines Manual § 2D1.1(b)(17) (U.S. Sent'g Comm'n 2016); id. § 5C1.2(a)(1)-(5); see also United States v. Warnick,

(4th Cir. 2002) (applying a previous version of the two-level reduction). 2 All references to § 3553(f) and the safety valve provision are to the previous version in effect at the time of the defendant's sentencing, unless otherwise stated.

- 5 - The parties agree that, because the district court imposed the

minimum statutory sentence required under the MDLEA, De la Cruz's

challenge to the denial of the minor role reduction is moot if

this Court rejects his safety valve argument.3

The government does not challenge De la Cruz's assertion

that, if eligible, he would meet the five fact-based criteria for

safety valve relief. We review de novo the issue of whether the

safety valve applied to MDLEA offenses because it is a purely legal

issue of statutory interpretation. See Padilla-Colón,

.

Three of our sister circuits have already decided this

precise issue and held that the safety valve provision did not

apply to offenses under the MDLEA under the plain language of the

statute. See United States v. Anchundia-Espinoza,

(5th Cir. 2018); United States v. Pertuz-Pertuz,

(11th Cir. 2012); United States v. Gamboa-Cardenas,

(9th Cir. 2007). Only one circuit has held

that the safety valve provision did apply to such offenses,

3 De la Cruz concedes on appeal that the safety valve issue that he raises is an open question in this circuit. Nonetheless, he cites United States v. Rodríguez-Durán,

(1st Cir. 2007), and United States v. Bravo,

(1st Cir. 2007), and argues that "the Court has previously assumed without deciding that the safety valve may apply to defendants convicted of violating the MDLEA." Neither of those cases states such an assumption and the Court did not consider the issue. See Rodríguez-Durán,

; Bravo,

.

- 6 - reasoning that it did so based on the interaction between the MDLEA

and the penalty provision of

. See United States

v. Mosquera-Murillo,

(D.C. Cir. 2018). We

agree with the majority view and hold that the applicable safety

valve provision did not apply to offenses under the MDLEA based on

the plain language of the statute as well as the history and

structure of that statute and others.4

A. The Relevant Statutes

Because the language of the MDLEA,

, and

the safety valve provision is essential to both parties' arguments,

we first discuss the language of those statutes and provide a brief

history of each.

Congress enacted the MDLEA in 1980 "to facilitate

increased enforcement by the Coast Guard of laws relating to the

importation of controlled substances, and for other purposes."

Stat. 1159, 1159 (1980) (codified as amended

at

).5 The MDLEA provides that "[w]hile

4 The defendant has not argued on appeal that interpreting the safety valve provision not to apply to MDLEA offenses would somehow contravene the purpose of the safety valve statute, the MDLEA, or any other statute. Rather, he focuses his arguments on the language of the safety valve provision, the MDLEA, and

, as interpreted in Mosquera-Murillo. The government responds with arguments based on the language of the statute, as well as its history and structure in the context of other statutes. 5 The MDLEA, which was originally codified at

to 1904, was amended several times between 1980 and when the safety valve provision was enacted in 1994, with the most

- 7 - on board a covered vessel, an individual may not," among other

things, "knowingly or intentionally . . . manufacture or

distribute, or possess with intent to manufacture or distribute,

a controlled substance."

(a). A separate penalty

section of the MDLEA, in turn, provides that an offense or a

conspiracy or attempt to commit an offense under § 70503(a)(1)

"shall be punished as provided in [

]" if it is the

person's first felony drug offense.

(a)-(b); see

also

(b).

Congress enacted

in 1970 as part of the

Controlled Substances Import and Export Act.

,

, 1290 (1970) (codified as amended at

(2018)). Section 960 has several subsections.

Section 960(a) provides the "[u]nlawful acts" which are punishable

under the statute and specifically lists six other statutes which

constitute those unlawful acts under § 960.

(a)

(2018) (listing

, 952, 953, 955, 957, and 959 as

unlawful conduct for purposes of § 960). MDLEA offenses are not

among those listed as "[u]nlawful acts" under § 960(a). Although

the MDLEA did not exist at the time § 960 was first enacted, § 960

was later amended a number of times after the MDLEA was enacted,

substantial amendment occurring in 1986. See Maritime Drug Law Enforcement Prosecution Improvements Act of 1986, Pub. L. No. 99- 570, §§ 3201-3202,

, 3207-95 to -97.

- 8 - including in the Maritime Drug Law Enforcement Prosecution

Improvements Act of 1986. See

1005, 1302,

, 3207-6, 3207-15 to -18 (1986). None of those later

amendments to § 960 added the MDLEA to the list of offenses which

constituted "[u]nlawful acts" under § 960(a).

Section 960(a) provides that the enumerated unlawful

acts "shall be punished as provided in subsection (b)." It is

pursuant to § 960(b) that MDLEA offenses under § 70503(a)(1) are

punished. See

(a)-(b).

Section 960(b), titled "[p]enalties," describes how the

drug-related offenses to which it applies should be punished based

on the drug type and amount involved. It provides that when the

violation involves "5 kilograms or more of a mixture or substance

containing a detectable amount of [cocaine] . . . the person

committing such violation shall be sentenced to a term of

imprisonment of not less than 10 years" if there was no death or

serious bodily injury resulting from the use of the controlled

substance and the person has no prior conviction for a felony drug

offense.

(b)(1) (2018).

In 1994, Congress enacted the Violent Crime Control and

Law Enforcement Act which, among other things, created the safety

valve provision at issue.

(a),

, 1985-86 (1994) (codified as amended at 18 U.S.C.

- 9 - § 3553(f) (2018)). The version of the safety valve provision that

applies to De la Cruz6 provided that

[n]otwithstanding any other provision of law, in the case of an offense under [

, 844, or 846] or [

or 963], the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission . . . without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that [the defendant satisfies five criteria].7

6 In December 2018, Congress enacted the First Step Act which, among other things, amended the § 3553(f) safety valve provision to explicitly include MDLEA offenses under §§ 70503 and 70506 as offenses eligible for relief from statutory minimums.

(a)(1)(A)(ii),

, 5221 (2018). The title of that section of the First Step Act is "Broadening of Existing Safety Valve."

§ 402. Congress chose not to make the amendment to the safety valve provision apply retroactively. Id. § 402(b). Because De la Cruz was sentenced before the First Step Act was enacted, the previous version of the safety valve provision applies to him. 7 Those five criteria are that:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has

- 10 -

(f) (2018). MDLEA offenses under §§ 70503 and

70506 were not among the five specifically enumerated offenses in

§ 3553(f).

B. The Safety Valve Provision Did Not Apply to MDLEA Offenses Under the Plain Language of the Statute

We begin with the safety valve statute's language in

interpreting its meaning. United States v. Vidal-Reyes,

(1st Cir. 2009). "In so doing, we accord the statutory

text 'its ordinary meaning by reference to the specific context in

which that language is used, and the broader context of the statute

as a whole.'" Recovery Grp., Inc. v. Comm'r,

(1st Cir. 2011) (quoting Mullane v. Chambers,

(1st Cir. 2003) (internal quotation marks omitted)). "When

exhausting those [textual and structural] clues enables us to

resolve the interpretive question put to us, our 'sole function'

is to apply the law as we find it, not defer to some conflicting

reading . . . ." Niz-Chavez v. Garland,

, 1480

truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

(f)(1)-(5) (2018).

- 11 - (2021) (citation omitted) (quoting Lamie v. U.S. Tr.,

(2004)); see also Recovery Grp.,

("If the

statutory language is plain and unambiguous, we 'must apply the

statute according to its terms,' except in unusual cases where,

for example, doing so would bring about absurd results." (citation

omitted) (quoting Carcieri v. Salazar,

(2009))).

The language of the safety valve provision plainly and

unambiguously did not apply to offenses under the MDLEA. Section

3553(f) provided that the safety valve could apply to "an offense

under" one of the five enumerated statutes listed in that

provision.

(f) (2018). The MDLEA was not one of

those enumerated statutes. By explicitly listing certain statutes

and excluding others, Congress clearly intended for the safety

valve provision to apply only to offenses under the specific

statutes listed and not to offenses under the MDLEA. Anchundia-

Espinoza,

; Pertuz-Pertuz,

; Gamboa-

Cardenas,

; see also United States v. Hernández-

Ferrer,

(1st Cir. 2010) (applying the "expressio

unius est exclusio alterius" canon of statutory construction,

"which translates roughly as 'the expression of one thing is the

exclusion of other things'" (emphasis omitted)).8 Congress had a

8 Other circuits have also strictly construed the § 3553(f) safety valve provision not to apply to offenses under other statutes which were not expressly included in the safety valve provision. See, e.g., United States v. Koons,

,

- 12 - good reason for not including MDLEA offenses among those eligible

for safety valve relief: at that time, Congress was especially

concerned about drug trafficking over the seas and found that it

was "a serious international problem and [was] universally

condemned" and "present[ed] a specific threat to the security and

societal well-being of the United States." Maritime Drug Law

Enforcement Prosecution Improvements Act of 1986, Pub. L. No. 99-

570, § 3202,

, 3207-95.

Nor are MDLEA offenses "offense[s] under" § 960, which

was one of the statutes expressly included in the safety valve

provision. See

(f) (2018). Section 960(a) lists

six statutes the violation of any one of which constitutes the

"[u]nlawful acts" under § 960.

(a) (2018).

Violations of one of those other listed statutes would be eligible

for safety valve relief because they are offenses under § 960.

Anchundia-Espinoza,

; Pertuz-Pertuz,

; Gamboa-Cardenas,

. The MDLEA is not one of

the statutes expressly listed under § 960(a), and so an MDLEA

offense is not an offense under § 960 for purposes of safety valve

relief. Anchundia-Espinoza,

; Pertuz-Pertuz, 679

993 (8th Cir. 2002) (holding that the safety valve provision did not apply to offenses under

because it was not one of the statutes specifically listed in the safety valve); United States v. McQuilkin,

(3d Cir. 1996) (same).

- 13 - F.3d at 1329; Gamboa-Cardenas,

; see also

Hernández-Ferrer,

.

The fact that MDLEA offenses are punished pursuant to

§ 960(b) does not change that conclusion. As our sister circuits

have noted, the safety valve provision applies to "offense[s]

under" one of the listed statutes, not to "offenses punishable

under," "offenses penalized under," or "sentences under" one of

those listed statutes. See Anchundia-Espinoza,

;

Pertuz-Pertuz,

; Gamboa-Cardenas,

-

99; see also

(f) (2018). Section 960 provides its

own offense conduct, by incorporation of other statutes, and the

MDLEA provides its own offense conduct which is not incorporated

into § 960. See

(a)-(b);

(a)

(2018). That § 70506 incorporates the penalty provision of § 960

does not change the fact that those separate statutes each defines

and criminalizes different conduct which constitutes the offenses

under those two statutes.

De la Cruz relies on the D.C. Circuit's decision in

Mosquera-Murillo to support his § 960 argument. Mosquera-Murillo,

in turn, states that it was relying on the Supreme Court's

decisions in Patterson v. New York,

(1977),

Apprendi v. New Jersey,

(2000), and Alleyne v.

United States,

(2013) (plurality), in holding

that MDLEA offenses are offenses under § 960 because the penalty

- 14 - provision in § 960(b) provides elements of those offenses.9 See

(stating that "[o]ffenses are defined by the

provisions that supply their elements" (citing Patterson,

)). In our view, Patterson, Apprendi, and Alleyne are

inapposite because none addresses the statutory interpretation

issue here.10

9 The D.C. Circuit in Mosquera-Murillo also relied on the fact that the government had charged the defendants with violations of both the MDLEA and § 960 in the same count of the indictment as further support for the § 960 argument. See

. The indictment here charged violations of the MDLEA and § 960 in separate counts. 10 Patterson addressed the issue of whether placing the burden of proving an affirmative defense at a murder trial on the defendant violates the Due Process Clause of the Fourteenth Amendment.

. Patterson held that "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged" but does not require the prosecution to prove the nonexistence of an affirmative defense where the affirmative defense does not require the defendant to disprove an element of the charged offense.

; see also

. Apprendi addressed the issue of "whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt."

. The Supreme Court held that, as a matter of constitutional due process, "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."

at 476 (quoting Jones v. United States,

, 243 n.6 (1999)); see also id. at 490. The Supreme Court in Alleyne concluded the same with respect to any fact that increases a mandatory minimum, holding that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt."

(citing Apprendi,

n.10, 490).

- 15 - Even if drug type and drug amount are elements of an

MDLEA offense for purposes of punishment, as provided by § 960(b),

and so those facts must be proven to a jury beyond a reasonable

doubt as a matter of constitutional due process under Patterson,

Apprendi, and Alleyne, those cases do not say anything about what

"offense under" means for purposes of safety valve relief as a

matter of statutory interpretation. That is a separate question

about what Congress intended when it enacted the safety valve

statute in 1994, and the plain and unambiguous language of

(f) simply did not apply to offenses under the MDLEA.

We cannot conclude that the technical definition of what

an "offense" might mean under Apprendi and Alleyne, which post-

date the enactment of the safety valve provision, was the

definition that Congress intended in 1994. See Niz-Chavez, 141 S.

Ct. at 1480 ("When called on to resolve a dispute over a statute's

meaning, this Court normally seeks to afford the law's terms their

ordinary meaning at the time Congress adopted them."); Ngiraingas

v. Sanchez,

(1990). At that time, Black's Law

Dictionary defined "offense" as "[a] felony or misdemeanor; a

breach of the criminal laws; violation of law for which penalty is

prescribed." Offense, Black's Law Dictionary (6th ed. 1990); see

also Taniguchi v. Kan Pac. Saipan, Ltd.,

(2012) (using dictionary definitions to interpret a term in a

statute). A "breach" or "violation" of the law connotes the

- 16 - actions or conduct by the perpetrator which warrants the penalty

prescribed by the law, but neither definition refers to the conduct

that bears only on the degree of that penalty.

To the contrary, our understanding of "offense" comes

from the Supreme Court's opinion in McMillan v. Pennsylvania,

(1986). In McMillan, the Supreme Court held that

sentencing factors which come into play only after the defendant

has been found guilty beyond a reasonable doubt will not be

considered elements of the substantive offense except under

limited circumstances not involved here. See

(relying

on Patterson). At the time the safety valve provision was enacted,

the Circuit Courts of Appeals applied the McMillan rule in holding

that drug amount for purposes of sentencing was not an element of

the substantive offense. See, e.g., United States v. Lowden,

(1st Cir. 1992); United States v. Lam Kwong-Wah,

(D.C. Cir. 1992); United States v. Royal,

, 649 n.10 (5th Cir. 1992); United States v.

Harrison-Philpot,

(9th Cir. 1992); United

States v. Perez,

(11th Cir. 1992); United

States v. Madkour,

(2d Cir. 1991); United

States v. Moreno,

(6th Cir. 1990); United

States v. Reynolds,

(7th Cir. 1990); United

States v. Powell,

(4th Cir. 1989); United States

v. Jenkins,

(10th Cir. 1989); United States

- 17 - v. Woods,

(8th Cir. 1987). It was not until

years after the safety valve provision was enacted that McMillan's

definition of what constituted an "offense" and "offense elements"

was overruled. See United States v. Haymond,

(2019) (stating that Alleyne expressly overruled McMillan and

extended Apprendi).

C. The History and Structure of the MDLEA, Safety Valve Provision, and Other Statutes Confirm That the Safety Valve Provision Did Not Apply to MDLEA Offenses

The plain text resolves the statutory interpretation

question. And in any event, our interpretation is further

confirmed by other indicia. For confirmation, we look to the

legislative history of the safety valve and other statutes. See,

e.g., Niz-Chavez, 141 S. Ct. at 1484; Telecomms. Regul. Bd. of

P.R. v. CTIA-The Wireless Ass'n,

(1st Cir. 2014).

We also look to the structure of the safety valve provision in the

context of the act which enacted it and in the context of other

statutes. See, e.g., Niz-Chavez, 141 S. Ct. at 1482-84; City of

Providence v. Barr,

(1st Cir. 2020); Carnero v.

Bos. Sci. Corp.,

(1st Cir. 2006).

The MDLEA was enacted about fourteen years before -- and

subject to significant amendment eight years before -- the safety

valve provision was enacted. Congress was clearly aware of the

MDLEA at the time it created the safety valve and could easily

have included it among the safety valve's enumerated offenses if

- 18 - it had so wanted. See Anchundia-Espinoza,

; Gamboa-

Cardenas,

. Moreover, § 960 was amended several

times after the MDLEA was enacted, including as part of the act

which amended the MDLEA in 1986 and the act which enacted the

safety valve provision in 1994. None of those amendments added

the MDLEA to the list of statutes that constituted the unlawful

conduct under § 960. It would have been far easier for Congress

simply to include MDLEA offenses under either § 3553(f) or § 960(a)

if it intended for the safety valve to apply to such offenses,

rather than rely on a complex analysis by which a court must infer

safety valve relief through the MDLEA's incorporation of a penalty

provision that does not itself discuss the safety valve. We cannot

conclude that Congress intended to do indirectly what it could

have done directly but did not. See Anchundia-Espinoza,

; Pertuz-Pertuz,

; Gamboa-Cardenas,

; see also Franklin Cal. Tax-Free Tr. v. Puerto

Rico,

(1st Cir. 2015).

That Congress eventually did amend the § 3553(f) safety

valve provision in 2018 to explicitly include offenses under the

MDLEA -- eleven years after the first appellate opinion holding

that the safety valve did not apply to such offenses, see Gamboa-

Cardenas,

-- and chose not to apply that amendment

retroactively is further evidence that the safety valve did not

- 19 - previously apply to offenses under the MDLEA.11 See Heckler v.

Turner,

(1985) (referring to later enacted

legislation in interpreting an earlier statute and stating that

"it carries . . . considerable retrospective weight" (collecting

cases)); Seatrain Shipbuilding Corp. v. Shell Oil Co.,

(1980) (stating that "while the views of subsequent

Congresses cannot override the unmistakable intent of the enacting

one, such views are entitled to significant weight" (citation

omitted)).

This later enactment in 2018 is entitled to weight, and

it reinforces our conclusions based on the language of the statute.

The fact that the title of the operative section of the First Step

Act is called "Broadening of Existing Safety Valve,"

,

, 5221 (2018), is further evidence

that Congress understood the older version of the statute to have

a narrower scope, see Fla. Dep't of Revenue v. Piccadilly

Cafeterias, Inc.,

(2008) (stating that "statutory

titles and section headings 'are tools available for the resolution

of a doubt about the meaning of a statute'" (quoting Porter v.

11 In his brief, De la Cruz refers to the "undue sentencing disparity" for defendants like De la Cruz who were sentenced shortly before the enactment of the First Step Act. But any disparity is the result of Congress's own choice to make the First Step Act's amendment to the safety valve provision not retroactive. And because all MDLEA defendants sentenced after December 2018 are now eligible for safety valve relief, only a small group of defendants is likely to be affected by this decision.

- 20 - Nussle,

(2002) (internal quotation marks

omitted))). Indeed, it would have been unnecessary for Congress

to "broaden" the existing safety valve to encompass MDLEA offenses

if those offenses were already within its scope. The use of the

term "broaden" in adding MDLEA offenses, rather than "confirm" or

"clarify," also reinforces that even post-Apprendi, Congress did

not have in mind Mosquera-Murillo's technical, case law-based view

of the word "offense" for purposes of the safety valve.

Furthermore, the structure of the act which enacted the

safety valve provision, as well as the language used in surrounding

statutes, confirm that the safety valve provision did not apply to

offenses under the MDLEA. Congress enacted the safety valve

provision in the Violent Crime Control and Law Enforcement Act of

1994.

(a),

, 1985-86.

In that same act, Congress added a subsection to

which made it unlawful to "smuggle[] or knowingly bring[] into the

United States a firearm" "with intent to engage in or to promote

conduct that . . . is punishable under the Controlled Substances

Act (21 U.S.C. [§§] 801 et seq.), the Controlled Substances Import

and Export Act (21 U.S.C. [§§] 951 et seq.), or the Maritime Drug

Law Enforcement Act [(

et seq.)]."

,

, 2016 (codified as amended at

(k)) (emphasis added). That Congress explicitly

referred to the MDLEA in another section of the same act which

- 21 - created the safety valve provision to define another offense shows

that Congress intended to exclude MDLEA offenses from the scope of

the safety valve provision. See Russello v. United States,

(1983) ("[W]here Congress includes particular language

in one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion."

(alteration in original) (quoting United States v. Wong Kim Bo,

(5th Cir. 1972))).

Congress also used the phrase "punishable under" in

enacting the new subsection of

in the Violent Crime

Control and Law Enforcement Act of 1994 to define the unlawful

conduct covered by that subsection.

,

, 2016. If Congress had intended the safety valve

provision to apply to offenses "punishable under" one of the

statutes enumerated in that provision, Congress could have used

that same language. That it instead chose to use different

language in different parts of the same act which created the

safety valve provision is important. See Russello,

. And in the new subsection of

enacted in the

Violent Crime Control and Law Enforcement Act of 1994, Congress

listed the Controlled Substances Import and Export Act (which

includes

) and the MDLEA separately using the

disjunctive "or." Referring to those statutes in that way is

- 22 - further evidence that Congress did not intend for MDLEA offenses

to be subsumed under § 960 through the MDLEA's incorporation of

the penalty provision in § 960(b).

At the time Congress enacted the safety valve provision,

there were numerous other statutes where Congress had specifically

referred to the MDLEA when describing drug-related offenses, which

is further evidence that Congress knew how to include MDLEA

offenses when it so intended. See, e.g.,

(c)(2)

(1994) (defining "drug trafficking crime" as "any felony

punishable under the Controlled Substances Act (21 U.S.C. [§§] 801

et seq.), the Controlled Substances Import and Export Act (21

U.S.C. [§§] 951 et seq.), or the Maritime Drug Law Enforcement Act

[(

et seq.)] (emphasis added));

§ 924(e)(2)(A)(i) (1994) (defining a "serious drug offense" using

similar language); id. § 924(g)(2) (1994) (using similar language

in making it unlawful to travel interstate with a firearm); id.

§ 929(a)(2) (1994) (using the same definition of "drug trafficking

crime" as § 924(c)(2)); id. § 3142(e) (1994) (prescribing a

rebuttable presumption of pretrial detention for defendants where

"there is probable cause to believe that the person committed an

offense for which a maximum term of imprisonment of ten years or

more is prescribed in the Controlled Substances Act (21 U.S.C.

[§§] 801 et seq.), the Controlled Substances Import and Export Act

(21 U.S.C. [§§] 951 et seq.), the Maritime Drug Law Enforcement

- 23 - Act [(

et seq.)], or an offense under section

[18 U.S.C. §] 924(c)" (emphasis added));

(h) (1994)

(providing that the Sentencing Commission's guidelines must

specify a prison sentence "at or near the maximum term authorized

for categories of defendants" who are at least eighteen years old

and have been convicted of multiple felonies that each are "a crime

of violence . . . or . . . an offense described in section 401 of

the Controlled Substances Act (21 U.S.C. [§] 841), sections

1002(a), 1005, and 1009 of the Controlled Substances Import and

Export Act (21 U.S.C. [§§] 952(a), 955, and 959), and the Maritime

Drug Law Enforcement Act [(

et seq.)]" (emphasis

added)).

And in several of these statutes which existed at the

time Congress enacted the safety valve provision, Congress used

the term "punishable under" when referring to § 960 which further

demonstrates it distinguished between "offenses under" and

"offenses punishable under." See, e.g.,

(c)(2)

(1994);

§ 924(g)(2) (1994); id. § 929(a)(2) (1994). Several

of these statutes also listed both MDLEA offenses and § 960

offenses separately and in the disjunctive. See, e.g.,

(c)(2) (1994);

§ 924(e)(2)(A)(i) (1994); id. § 924(g)(2)

(1994); id. § 929(a)(2) (1994). These are further indicia that

Congress did not intend for MDLEA offenses to fall under § 960.

- 24 - Finally, the plain language reading of the safety valve

provision is supported by the possible effect the defendant's

contrary reading would have on the availability of safety valve

relief. If we were to accept De la Cruz's argument and the position

of the D.C. Circuit in Mosquera-Murillo that MDLEA offenses were

eligible for safety valve relief because § 960 provides some of

the elements for those offenses, that likely would have

consequences as to other separate offenses also not explicitly

listed. The government argues that offenses under both

and 860 would likely also be eligible for safety valve

relief, even though neither was listed in

(f).

After all, §§ 859 and 860 both refer to and incorporate a violation

of

(a)(1) (which is one of the statutes listed in

the safety valve provision) as an element of the offense; add an

additional element of distributing a controlled substance to

someone under twenty-one years old, see

§ 859, or

"distributing, possessing with intent to distribute, or

manufacturing a controlled substance in or on, or within" certain

protected areas, such as schools or public housing facilities, id.

§ 860(a)-(b), or hiring someone under eighteen years old to do so

or to assist in doing so, id. § 860(c); and then set enhanced

penalties which are calculated by reference to the penalties

provided in § 841 that are based on drug type and drug amount, see

id. §§ 841(b), 859, 860.

- 25 - Yet every circuit to have directly decided the issue has

held that offenses under § 860 are not eligible for § 3553(f)

safety valve relief. See United States v. Phillips,

(5th Cir. 2004); Koons,

; United States v.

Kakatin,

(9th Cir. 2000); United States v.

Anderson,

(11th Cir. 2000); McQuilkin,

; see also United States v. Warnick,

(4th Cir. 2002). But see Mosquera-Murillo,

(discussing but not deciding the issue). That De la Cruz's and

Mosquera-Murillo's reasoning would indirectly expand the § 3553(f)

safety valve to even more statutes which are not explicitly

included in that safety valve provision is evidence that Congress

did not intend this reading.12

III.

De la Cruz's sentence and the judgment of the district

court are affirmed.

12 In his brief, De la Cruz argues that the "unfairness [of his sentence] is compounded by the government's documented practice of extending safety-valve relief to some MDLEA defendants while denying it to others." But De la Cruz does not develop that argument and so it is waived. See Henderson v. Mass. Bay Transp. Auth.,

, 33 (1st Cir. 2020). He also raised the rule of lenity for the first time at oral argument. Any argument based on the rule of lenity is also waived because it was not made in his opening brief. See Bernardo ex rel. M & K Eng'g, Inc. v. Johnson,

, 492 n.17 (1st Cir. 2016). Even bypassing that waiver issue, the rule of lenity does not apply here because the safety valve provision is not ambiguous. See United States v. Pinkham,

(1st Cir. 2018).

- 26 -