F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 25, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-7100
(E.D. Oklahoma)
LATRON NITCHELL JOLLY, (D.Ct. No. CR-03-107-P)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Latron Jolly pled guilty to possession with intent to distribute crack cocaine
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). He was sentenced to the
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
statutory minimum of 120 months imprisonment. Jolly appeals from his sentence,
arguing the district court committed reversible error when it denied his motion for
downward departure under the safety valve provision. See 18 U.S.C. § 3553(f),
USSG §5C1.2. 1 Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a), we AFFIRM.
I. Factual Background
Jolly was indicted on four counts of possession with intent to distribute a
controlled substance (cocaine base) in violation of 21 U.S.C. § 841(a)(1). He
pled guilty to Count One, possession of 23.4 grams of cocaine base with intent to
distribute. Prior to sentencing, Jolly made a motion for downward departure
under the safety valve provision of USSG §5C1.2, and for an additional two-level
downward adjustment to his base offense level under USSG §2D1.1(b)(6). 2 The
Because Jolly was sentenced pursuant to the 2003 edition of the United States
1
Sentencing Guidelines Manual, all guideline citations refer to the 2003 edition, unless
noted otherwise.
2
USSG §2D1.1(b)(6) states, “[i]f the defendant meets the criteria set forth in
subdivisions (1)-(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory
Minimum Sentences in Certain Cases), decrease by 2 levels.”
USSG §5C1.2(a) provides:
(a) Except as provided in subsection (b), in the case of an offense under 21
U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a
sentence in accordance with the applicable guidelines without regard to any
statutory minimum sentence, if the court finds that the defendant meets the
criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below:
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government objected, asserting that Jolly failed to satisfy the fifth prong of USSG
§5C1.2(a), requiring him to disclose truthful information relevant to his offense.
The government wanted Jolly to identify his source, whom it believed to be the
target of an ongoing drug investigation. Although the government offered Jolly
time to comply with the provision, he insisted he could not provide any
information that was not already known to the government.
Three weeks prior to sentencing, Jolly for the first time provided written
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines before application of
subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal
History Category);
(2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any
person;
(4) the defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing guidelines and
was not engaged in a continuing criminal enterprise, as defined in 21
U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the defendant has
truthfully provided 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, but the fact that
the defendant has no relevant or useful other information to provide or
that the Government is already aware of the information shall not preclude
a determination by the court that the defendant has complied with this
requirement.
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statement concerning his actions in which he identified a “John Smith” as his
supplier. Two days later, Jolly amended his written statement to note John Smith
had died the previous summer. During the original sentencing hearing on May
14, 2004, Jolly again asserted John Smith was his only supplier. He
acknowledged being acquainted with the target of the government’s investigation,
but denied any knowledge of that individual’s activities with respect to drug
trafficking.
The government contested the veracity of Jolly’s information. Therefore,
during the May sentencing hearing, the government called Agent Curtis Collins
with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to testify
about the investigation. Agent Collins testified the ATF had targeted an
individual believed to be a drug dealer in the area. Jolly was not part of the
investigation until a confidential informant (CI) was unable to obtain narcotics
from the target because the target suspected the CI was an informant. The CI
named Jolly as a person who sold crack cocaine for the target. The ATF arranged
for the CI to purchase drugs from Jolly. The ATF hoped to “get” the target by
developing a case against Jolly.
Agent Collins also testified about records of telephone calls between Jolly’s
phone and the target’s. He further stated that individuals other than the CI had
confirmed that the target was Jolly’s source. Finally, Agent Collins testified he
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had never heard of John Smith, nor received any information about him from the
law enforcement community.
The district court was skeptical of Jolly’s testimony (and said so), but
continued the hearing and directed the probation officer to conduct a further
investigation. During the final sentencing hearing on September 10, 2004, the
court heard testimony from the government’s CI, who discussed his attempts to
purchase narcotics from the target, the many times he had observed Jolly buying
drugs from the target, and that the target was Jolly’s only source. The CI further
testified John Smith was a drug dealer who also obtained his drugs from the
target.
Finding Jolly had not met his burden under the safety valve guideline, the
district court denied his motion for downward departure. Immediately prior to
imposing sentence, the district court gave Jolly one last opportunity to provide
relevant information to the government which would entitle him to safety valve
relief. When Jolly declined, the district court sentenced him to 120 months
imprisonment, the statutory mandatory minimum. 3
Jolly pled guilty to possession of 23.4 grams of cocaine base with intent to
3
distribute, an amount less than the 50 grams required to trigger the 120 month mandatory
minimum term set forth in 21 U.S.C. § 841(b)(1)(A)(iii). However, pursuant to USSG
§1B1.3(a)(2), Jolly was held accountable for the total quantity of cocaine base (82 grams)
he sold to the CI from June 2 through July 16, 2003.
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II. Standard of Review
We review a district court’s interpretation of the sentencing guidelines de
novo. United States v. Patron-Montano, 223 F.3d 1184, 1188 (10th Cir. 2000).
We review its application of the Sentencing Guidelines’ safety valve provisions
for clear error. United States v. Virgen-Chavarin, 350 F.3d 1122, 1129 (10th Cir.
2003) (citation omitted). “A district court’s factual finding is clearly erroneous
only if it is without factual support in the record or if [this] court, after reviewing
all the evidence, is left with a definite and firm conviction that a mistake has been
made.” Patron-Montano, 223 F.3d at 1188 (quotations omitted). “We are
cognizant that the district court’s application of the safety valve is fact specific
and dependent on credibility determinations that cannot be replicated with the
same accuracy on appeal.” Virgen-Chavarin, 350 F.3d at 1129.
III. Safety Valve Relief
It is undisputed that Jolly met the first four criteria of 18 U.S.C. § 3553(f)
and USSG §5C1.2. The only issue is whether he also complied with the fifth
criteria by “truthfully provid[ing] 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);
USSG §5C1.2(a)(5).
We have consistently held that the defendant has the burden of proving, by
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a preponderance of the evidence, the applicability of the safety valve provision.
Patron-Montano, 223 F.3d at 1189; United States v. Verners, 103 F.3d 108, 110
(10th Cir. 1996). This includes the obligation of being truthful, United States v.
Acosta-Olivas, 71 F.3d 375, 379 (10th Cir. 1995), and providing “all information
and evidence . . . 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);
USSG §5C1.2(a)(5). As we noted in Acosta-Olivas,
The phrase “all information and evidence” is obviously broad. The
Application Notes to § 5C1.2 define “offense or offenses that were part of
the same course of conduct or of a common scheme or plan” to mean “the
offense of conviction and all relevant conduct.” USSG § 5C1.2, comment.
(n. 3). “Relevant conduct” has in turn been defined to include “in the case
of a jointly undertaken criminal activity . . . all reasonably foreseeable
acts and omissions of others in furtherance of the jointly undertaken
criminal activity.” USSG §1B1.3(a)(1)(B).
71 F.3d at 378.
Jolly argues he met his burden simply by naming an individual, John Smith,
as his supplier. He further argues that because the government could not disprove
this information, the district court erred in refusing to apply the safety valve
provision.
The district court was correct in interpreting the statute to require a
“significant nexus between the defendant’s conduct and those other offenses
about which [he] is obliged to provide information . . . .” (R. Vol. V at 47.) The
district court found Jolly was “required to provide truthful information relevant to
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his own course of conduct and his immediate chain of distribution, that is to say
from whom he bought and to whom he sold . . . .” (Id.) The district court further
found Jolly had not met this obligation, a determination clearly supported by the
record. Despite being given multiple opportunities to comply with the
requirements of §5C1.2(a)(5), 4 Jolly persisted in naming a deceased individual as
his supplier and providing minimal information about his own conduct.
The probation officer was able to corroborate much of Jolly’s testimony
about John Smith’s existence, with whom and where he lived, and the fact of his
death. The record is clear. Jolly knew Smith; they were friends. What is not
clear, or even probable, from the record is Smith’s role as Jolly’s supplier.
Although Smith’s widow denied ever having observed him use or sell drugs, the
CI testified Smith too purchased his drugs from the target. Significantly, the CI
testified Jolly would not obtain drugs from anyone except the target.
The credibility of a witness at sentencing is for the sentencing court, who is
the trier of fact, to analyze. Virgen-Chavarin, 350 F.3d at 1134 (citation
omitted). The district court was entitled to “draw reasonable inferences from the
4
The record reflects Jolly was approached once prior to indictment, at least once
after indictment, and was asked to cooperate with the government. He was also given
several opportunities during the two sentencing hearings to provide information; because
of the length of the mandatory minimum sentence, the district court beseeched Jolly to
provide “all of the information he had in regard to his source of these drugs.” (R. Vol. II
at 35.) That Jolly refused to take advantage of these opportunities to comply with the
requirements of the statute and guideline is not now reason for reversal.
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evidence.” United States v. Alvarado-Rivera, 412 F.3d 942, 948 (8th Cir. 2005)
(en banc). It could reasonably conclude Jolly was motivated not to incriminate
the target and the deceased Smith was a safe and convenient foil.
We have noted, “[w]hen a defendant falsely identifies a participant in the
criminal activity, investigators are hindered or precluded from determining all
acts committed in furtherance of the jointly undertaken criminal activity.
Common sense, therefore, dictates that [Jolly’s] false identification of the source
of the [cocaine base] necessarily constitutes a lie about relevant conduct.”
Patron-Montano, 223 F.3d at 1190 (discussing USSG §3E1.1).
The court’s determination that Jolly had not provided truthful information,
and thus did not meet one of the prerequisites for relief under the safety valve
provision, is clearly justified. AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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