UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4954
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ENRIQUE NAJERA GASCA, a/k/a Enrique Najera, a/k/a El Morro,
a/k/a El Bolis,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge.
(1:06-cr-00542-AMD)
Submitted: September 30, 2008 Decided: November 4, 2008
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary A. Ticknor, Elkridge, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Kwame J. Manley, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Enrique Najera Gasca pled guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute and possess
with intent to distribute cocaine and cocaine base, in violation of
21 U.S.C. § 846 (2000). The district court sentenced Gasca to the
statutory mandatory minimum sentence of 120 months’ imprisonment.
Gasca appeals, contending that the district court’s imposition of
the statutory minimum sentence was improper because the court
erroneously denied a sentencing reduction under the safety-valve
provision. See 18 U.S.C. § 3553(f) (2000); U.S. Sentencing
Guidelines Manual (“USSG”) § 5C1.2 (2006). We affirm.
The safety valve requires a district court to impose a
sentence within the applicable guideline range without regard to
any statutory minimum sentence if a defendant meets five
requirements. 18 U.S.C. § 3553(f). The requirements are: (1) the
defendant has no more than one criminal history point, (2) the
defendant did not use violence or credible threats of violence or
possess a firearm in connection with the offense, (3) the offense
did not result in death or serious bodily injury, (4) the defendant
was not an organizer or leader of others in the offense, and
(5) the defendant provided truthful information to the government
concerning the crime. Id. The burden is on the defendant to prove
that all five safety-valve requirements have been met. United
States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996). “[T]he
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factual findings of the district court with respect to whether a
defendant has satisfied the criteria of § 5C1.2 may not be reversed
absent clear error.” United States v. Wilson, 114 F.3d 429, 432
(4th Cir. 1997).
The district court did not clearly err in denying Gasca
the benefit of the safety valve. Gasca concedes that he failed to
provide truthful information to the Government concerning the crime
prior to the sentencing hearing. To satisfy the fifth requirement,
the defendant must, “not later than the time of the sentencing
hearing, . . . truthfully provide[] 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 . . . .” 18 U.S.C. § 3553(f)(5). This
provision “requires more than accepting responsibility for one’s
own acts; . . . [it] requires a defendant to disclose all he knows
concerning both his involvement and that of any co-conspirators.”
United States v. Ivester, 75 F.3d 182, 184 (4th Cir. 1996). Gasca
admits that he was provided an opportunity to furnish the
Government with information and evidence concerning the conspiracy
but failed to offer evidence establishing truthful disclosure.
Although Gasca alleges that he entered his guilty plea expecting to
be permitted to make an additional proffer, the Government was not
required to debrief him. Beltran-Ortiz, 91 F.3d at 669 n.4;
Ivester, 75 F.3d at 185-86. There was no promise of an additional
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proffer session contained in Gasca’s plea agreement. Although the
district court could have continued the sentencing hearing to
provide Gasca additional opportunity to provide the government all
information and evidence concerning the relevant crimes, the
district court’s decision not to do so was not an abuse of
discretion. Indeed, nothing precluded Gasca from affirmatively
volunteering such information prior to his sentencing hearing. See
Ivester, 75 F.3d at 184-85. Accordingly, the district court’s
determination that Gasca’s statements were incomplete and
untruthful was not clearly erroneous, and the denial of a
safety-valve reduction below the statutory minimum on this basis
was proper.*
Accordingly, we affirm Gasca’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
*
Additionally, the government argues that Gasca is ineligible
for the § 3553(f) safety valve because he was assigned three
criminal history points. Gasca maintains that these points were
inappropriately awarded because they stemmed from conduct relevant
to the instant conspiracy and should not have been included in the
criminal history calculation. USSG § 4A1.2 cmt. n.1. Because
Gasca fails the fifth requirement of § 3553(f), and all five
elements are necessary for Gasca to obtain the benefit of the
safety valve, we need not consider this issue.
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