[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10030 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 5, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:06-cr-20555-ASG-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff - Appellee,
versus
JOHN WALKER,
lllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 5, 2010)
Before PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:
This is John Walker’s second direct appeal. Walker first appealed his
convictions for possessing with intent to distribute 100 or more marijuana plants,
21 U.S.C. § 841(a)(1), and maintaining a place to manufacture and distribute a
controlled substance, id. § 856(a)(1), and we affirmed, United States v. Walker,
No. 07-10798 (11th Cir. Jan. 10, 2008) (unpublished). Later, the district court
granted Walker’s motion to vacate his sentence, 28 U.S.C. § 2255, reopened
Walker’s case, and conducted a new sentencing hearing to determine if Walker
qualified for safety valve relief, United States Sentencing Guideline § 5C1.2. The
district court denied relief on the ground that Walker’s testimony was not
“believable and credible.” Walker appeals his sentence, and we affirm.
In an appeal of a denial of a motion for relief under the safety valve, we
review findings of fact for clear error and the application of law to those facts de
novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004). We are
required to “give due regard to the opportunity of the district court to judge the
credibility of the witnesses, and shall accept the findings of fact of the district
court unless they are clearly erroneous.” 18 U.S.C. § 3742(e). “The burden of
proof on the truthfulness issue lies, of course, with the defendant.” United States
v. Espinosa, 172 F.3d 795, 797 (11th Cir. 1999).
The district court did not err by denying Walker safety valve relief. To
obtain relief under the safety valve, “no[] later than the time of the sentencing
hearing, the defendant [must] truthfully provide[] to the Government all
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information and evidence” about his “offense or offenses.” 18 U.S.C. §
3553(f)(5); U.S.S.G. § 5C1.2(a)(5). The district court was familiar with the
circumstances of Walker’s case and could consider that information in
determining the completeness and veracity of Walker’s statement. See United
States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000). Walker testified that he
did not hear the grow room being constructed, smell the marijuana discovered
inside his house, or participate in the grow operation, but those statements are
difficult to reconcile with the undisputed evidence at trial about the renovations
made to accommodate the sophisticated hydroponic growing system, the strong
odor of marijuana emanating from 200 marijuana plants, and the digital scale and
packaging materials discovered in Walker’s living quarters. Walker also asserted
that he did not know about the grow operation until two or three months before his
arrest, yet he admitted that “about four months before” he was arrested he “saw his
son with a clone plant.” Walker insisted that he had blamed his son for the grow
operation, but Walker had told law enforcement that his son had moved out of the
house two months before his arrest and he “did not want” his son “involved with
any of this.” The district court did not clearly err in finding that Walker’s
testimony was incredible.
Walker’s sentence is AFFIRMED.
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