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U.S. v. HERNANDEZ-CASTRO

No. 06-10074.

473 F.3d 1004 (2007)

UNITED STATES of America, Plaintiff-Appellee, v. Esteban HERNANDEZ-CASTRO, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed January 12, 2007.

Attorney(s) appearing for the Case

Rene L. Valladares, Assistant Federal Public Defender (argued), Arthur L. Allen, Assistant Federal Public Defender, Las Vegas, NV, for the appellant.

Ray Gattinella, Assistant United States Attorney, Las Vegas, NV, for the appellee.

Before A. WALLACE TASHIMA and M. MARGARET McKEOWN, Circuit Judges, and DAVID O. CARTER, District Judge.

McKEOWN, Circuit Judge.

Under 18 U.S.C. § 3553(f), known as the "safety valve" provision, a defendant may be sentenced below the applicable statutory minimum if certain conditions are met, including not having "more than 1 criminal history point, as determined under the sentencing guidelines." Id. § 3553(f)(1). The issue we consider is whether, following the Supreme Court's decision in United States v. Booker, 543 U.S. 220

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