In an unpublished opinion, the United States did not contest whether Booker applies to a finding that a defendant does not qualify for the safety valve reduction from a statutory minimum:
Most notably, [Appellant] argues that his possession of a firearm during one distribution offense was not relevant conduct sufficient to foreclose the reduction of his sentence, by way of a safety-valve provision, see U.S.S.G. § 5C1.2(a) [which implements 18 USC sec. 3553(f)], from the statutory minimum to one within a lower Guideline range. Because Ross argues that United States v. Booker, 125 S. Ct. 738 (2005), entitles him to resentencing and because the government agrees—waiving its right to argue plain error—we vacate his sentence and remand for resentencing.
See United States v. Ross, No. 02-6435. It seems to my little mind that the Government would have a strong argument for no Sixth Amendment violation under Harris and McMillan. Maybe Prof. Berman will enlighten us again. The Government may have been cutting a break to an exceedingly cooperative defendant.
Update: Prof. Berman has obliged, here. Maybe there is something to be said for this concept of specialization.