No Double Jeopardy in Denying Safety-Valve Relief When the Same Firearm Supports a § 924(c) Conviction: United States v. Dorelus (11th Cir. 2025)

Introduction

In a published, per curiam decision, the Eleventh Circuit in United States v. Dorelus affirmed a 120-month sentence comprised of a 60-month mandatory-minimum term for a drug offense under 21 U.S.C. § 841(a)(1) (Count 6) and a mandatory, consecutive 60-month term for possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) (Count 7). The defendant argued that denying him safety-valve relief on the drug count—based on his firearm possession that also underpinned the § 924(c) conviction—violated the Double Jeopardy Clause by punishing him twice for the same firearm. The Eleventh Circuit rejected that constitutional claim.

The opinion clarifies that: (1) using the same firearm both to sustain a § 924(c) conviction and to find a defendant ineligible for safety-valve relief under 18 U.S.C. § 3553(f)(2)/U.S.S.G. § 5C1.2(a)(2) does not constitute impermissible multiple punishments for the same offense, and (2) a defendant’s “double counting/double-jeopardy” objection at sentencing sufficiently preserves a constitutional Double Jeopardy claim for de novo review.

Case Background

Parties: United States (Plaintiff-Appellee) v. James Dorelus (Defendant-Appellant).
Court: U.S. Court of Appeals for the Eleventh Circuit (Before Branch, Anderson, and Hull, Circuit Judges; per curiam).
Docket: No. 25-10296; appeal from the Southern District of Florida.
Facts: Over several controlled buys from September 2023 to May 2024, an FBI confidential human source purchased fentanyl/fentanyl analog from Dorelus. In the final controlled buy, the CHS also arranged to purchase a pistol with the drugs. Agents recovered cash, a pistol, magazines, and drugs; the total drug quantity attributable to Dorelus included 212.34 grams of fentanyl and 25.8 grams of fentanyl analog.
Charges: Six § 841(a)(1) distribution counts (Counts 1–6); one § 924(c)(1)(A) firearm count (Count 7). Pursuant to a plea agreement, Dorelus pleaded guilty to Counts 6 and 7; the remaining counts were dismissed.
Sentencing posture: The PSI calculated an offense level of 25 for Count 6 (with acceptance reductions), yielding an advisory range of 57–71 months, adjusted to 60–71 months due to the 5-year statutory minimum under § 841(b)(1)(B). For Count 7, § 924(c) mandated a consecutive 60-month sentence.
Dispute: Whether denying safety-valve relief on the drug count based on the same firearm used for the § 924(c) count violates Double Jeopardy.

Summary of the Opinion

The Eleventh Circuit affirmed the sentence. It held that reliance on the defendant’s firearm possession to deny safety-valve relief for the drug offense did not impose a second punishment for the same offense within the meaning of the Double Jeopardy Clause. Citing Supreme Court and Eleventh Circuit precedent, the court explained that considering offender conduct at sentencing—even conduct that is criminal in its own right—does not constitute “punishment” for that conduct; rather, it informs the appropriate punishment for the offense of conviction. The panel also concluded that the defendant’s safety-valve ineligibility was independently supported by his factual proffer admitting firearm possession, and it rejected the argument that merely pleading to “carrying” a firearm avoided the “possession” bar in § 3553(f)(2)/§ 5C1.2(a)(2).

Analysis

Precedents Cited and Their Influence

Witte v. United States, 515 U.S. 389 (1995): The Supreme Court held that using relevant conduct (cocaine trafficking) to enhance a sentence for a marijuana offense did not bar a subsequent prosecution for the cocaine conspiracy; consideration of conduct at sentencing is not “punishment” for that conduct for Double Jeopardy purposes. The Eleventh Circuit relied on Witte’s core principle to conclude that using firearm possession to deny a sentence reduction on the drug count is not a second punishment for the firearm conduct.
United States v. Carey, 943 F.2d 44 (11th Cir. 1991): The court held that a sentencing enhancement due to failure to appear did not bar a later prosecution for the same failure to appear. Carey underscores that sentencing “penalizes” in a practical sense but is not “punishment” for separate conduct in the Double Jeopardy analysis. The panel analogized Carey to the safety-valve context: whether the court enhances a sentence or denies a reduction, either way the result is a longer sentence for the offense of conviction—not a separate punishment for the conduct considered.
United States v. Bobb, 577 F.3d 1366 (11th Cir. 2009): The court reiterated the three protections of the Double Jeopardy Clause: against subsequent prosecution after acquittal; subsequent prosecution after conviction; and multiple punishments for the same offense. This framework situates the analysis of whether the denial of safety-valve relief amounts to a prohibited “multiple punishment.”
Brown v. Ohio, 432 U.S. 161 (1977), and Blockburger v. United States, 284 U.S. 299 (1932): These define the “same offense” test for multiple punishments under different statutes. Although Dorelus invoked Brown, the panel explained that Brown/Blockburger do not control because the denial of a sentence reduction is not a separate statutory penalty. Moreover, the firearm count (§ 924(c)) and the drug count (§ 841) are distinct offenses with different elements.
United States v. Brehm, 442 F.3d 1291 (11th Cir. 2006): Describes safety-valve relief as permitting sentencing without regard to statutory minimums when statutory and guideline requirements are met. The court cited Brehm as background on the operation of safety-valve relief.
United States v. Thomas, 32 F.4th 1073 (11th Cir. 2022) and United States v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013): The defendant bears the burden to prove safety-valve eligibility by a preponderance. These cases frame the burden allocation the panel applied, even though the ineligibility here turned on undisputed firearm possession.
United States v. Al Jaberi, 97 F.4th 1310 (11th Cir. 2024): Establishes de novo review for Double Jeopardy claims. The panel also used Al Jaberi to confirm the appropriate standard of review after holding that Dorelus adequately preserved his constitutional objection.

Legal Reasoning

The court’s reasoning proceeds in two steps.

The Double Jeopardy Clause and sentencing considerations: Relying on Witte and Carey, the panel reiterated that courts may consider a defendant’s conduct (including criminal conduct) in determining the sentence for the offense of conviction without that consideration constituting a separate “punishment” for Double Jeopardy purposes. That principle applies whether the court increases a sentence (via an enhancement) or declines to reduce it (by denying safety-valve relief). In either scenario, the sentencing court is still imposing a sentence for the underlying offense—here, the § 841 drug count—not punishing the defendant again for the firearm conduct.
Application to safety-valve eligibility: Safety-valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 allows sentencing “without regard” to statutory minimums, and triggers a two-level reduction under U.S.S.G. § 2D1.1(b)(18). One of its mandatory prerequisites is that “the defendant did not . . . possess a firearm or other dangerous weapon . . . in connection with the offense.” 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). Because the firearm here indisputably related to the same drug offense, the defendant was ineligible. Denying safety-valve relief on that basis does not transform the denial into a second punishment for the firearm; it simply means the defendant failed to qualify for a discretionary reduction on the drug sentence.

The panel also disposed of two adjunct arguments:

Guideline “double counting” vs. Double Jeopardy: The PSI correctly declined to apply the § 2D1.1(b)(1) firearm enhancement to the drug count because § 2K2.4 Application Note 4 forbids “double counting” the firearm when a § 924(c) sentence is imposed. But that guideline-specific bar on enhancements does not bar the separate, statutory safety-valve disqualification in § 3553(f)(2). Denying safety-valve relief is not an “enhancement”; it is a failure to obtain a reduction. The Double Jeopardy Clause does not convert that failure into an impermissible second punishment.
“Carry” versus “possess”: Although the defendant suggested he pleaded to “carrying” a firearm, the court pointed to the factual proffer in which he admitted he “possessed” the firearm. That factual admission foreclosed any attempt to avoid § 3553(f)(2)’s possession bar.

Preservation and Standard of Review

The government argued for plain-error review, asserting that the defendant had not adequately raised a Double Jeopardy claim below. The panel disagreed. It held that the defendant’s repeated “double counting and double jeopardy” objections to the PSI and at sentencing sufficiently preserved a constitutional Double Jeopardy argument, even though counsel characterized it as a “guideline argument.” Result: de novo review applied to the constitutional claim.

Impact and Practical Implications

Clear rule in the Eleventh Circuit: When the same firearm conduct underlies a § 924(c) conviction and relates to a § 841 offense, a court may both impose the mandatory, consecutive § 924(c) sentence and deny safety-valve relief on the § 841 count without violating Double Jeopardy.
Distinction between guideline “double counting” and constitutional double jeopardy: Application Note 4 to § 2K2.4 prevents adding a firearm enhancement to the underlying offense when a § 924(c) sentence is also imposed, but that does not insulate defendants from statutory safety-valve disqualification. Defense arguments should recognize that these are distinct inquiries.
Plea strategy and factual proffers: Admissions in a factual proffer can determine safety-valve outcomes. If the goal is to preserve safety-valve eligibility, counsel must be exceptionally careful about admissions tying firearm possession to the drug offense. Conversely, if a § 924(c) count is part of the plea, safety-valve eligibility will often be foreclosed by the same admitted conduct.
Burden allocation remains on the defendant: The defendant bears the burden to prove all five safety-valve criteria by a preponderance of the evidence. In cases with § 924(c) counts arising from the same transaction, satisfying § 3553(f)(2) will be difficult where the record clearly reflects possession “in connection with” the drug offense.
Sentencing exposure: The combination of (a) a mandatory minimum for the drug count that cannot be waived without safety-valve eligibility and (b) the mandatory consecutive § 924(c) term results in significant stacked sentences. This decision reinforces that courts will not treat denial of safety-valve relief as a constitutional event.
Preservation guidance: Defense objections framed as “double counting/double jeopardy” at sentencing can preserve constitutional claims for de novo review. Clarity still helps, but this decision shows courts will not insist on talismanic phrasing to preserve constitutional issues when the substance is evident.

Scope and Limits of the Decision

The court did not redefine “in connection with” for safety-valve purposes; the result turned on the defendant’s own admissions and the record tying the gun to the drug offense.
The panel did not hold that “carrying” always equals “possession” for safety-valve analysis; it simply found that the factual proffer independently admitted possession.
The decision addresses the constitutional Double Jeopardy claim; it does not alter guideline doctrine concerning what constitutes impermissible double counting under the Guidelines.

Complex Concepts Simplified

Double Jeopardy Clause: Protects against (1) a second prosecution after acquittal for the same offense, (2) a second prosecution after conviction for the same offense, and (3) multiple punishments for the same offense. It is not violated when a court considers conduct to set the sentence for an offense of conviction.
Safety-Valve Relief (18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2): A limited exception allowing certain drug offenders to be sentenced without regard to statutory minimums if five criteria are met, including not possessing a firearm “in connection with” the offense. Qualifying defendants also receive a two-level guideline reduction under § 2D1.1(b)(18).
§ 924(c) Conviction: Criminalizes using, carrying, or possessing a firearm in furtherance of a drug trafficking crime, and requires a mandatory consecutive term of imprisonment (here, at least five years).
Guideline Double Counting (U.S.S.G. § 2K2.4, Application Note 4): When a defendant is sentenced for a § 924(c) count, the Guidelines prohibit also applying a firearm-possession enhancement to the sentence for the underlying offense. This guideline principle does not control statutory safety-valve eligibility.
Relevant Conduct at Sentencing: Courts may consider a wide range of conduct (including other crimes) to determine the appropriate sentence for the offense of conviction without violating Double Jeopardy; this is the teaching of Witte and Carey.

Conclusion

United States v. Dorelus settles an important interaction between safety-valve eligibility and § 924(c) convictions in the Eleventh Circuit. The core holding is that denying safety-valve relief on a drug count due to firearm possession that also supports a § 924(c) conviction does not violate the Double Jeopardy Clause. The court anchors this conclusion in longstanding precedent holding that using conduct to calibrate a sentence for the offense of conviction is not a separate “punishment” for Double Jeopardy purposes. It also clarifies that guideline limits on “double counting” under § 2K2.4 do not translate into constitutional or statutory bars against denying safety-valve relief.

Practically, the decision affirms the government’s ability to both insist on the mandatory consecutive § 924(c) term and to oppose safety-valve relief on the related drug count, producing substantial stacked sentences when firearms are tied to drug trafficking. For defense counsel, the opinion underscores the need for strategic plea negotiations, careful management of factual proffers, and a realistic assessment of safety-valve prospects whenever a firearm is intertwined with the drug offense.