United States v. Altamirano-Quintero

FILED
United States Court of Appeals
Tenth Circuit

December 28, 2007
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
No. 06-1254
LUIS ALTAMIRANO-QUINTERO,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 04-cr-188-REB)

Paul H. Schwartz, Cooley Godward Kronish LLP, Broomfield, Colorado, for
Defendant-Appellant Luis Altamirano-Quintero.

Martha A. Paluch, Assistant United States Attorney (Troy A. Eid, United States
Attorney, with her on the brief) for Plaintiff-Appellee United States of America.

Before TYMKOVICH, EBEL and HOLMES, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Luis Altamirano-Quintero appeals the district court’s

imposition of a statutory mandatory minimum ten-year sentence for his drug

conspiracy conviction. Altamirano-Quintero asserts that the district court should
have applied 18 U.S.C. § 3553(f)’s safety valve to impose a sentence less than the

mandatory minimum. The district court, however, determined that

Altamirano-Quintero was not eligible for the safety valve because he had not

provided the Government with all the information he had concerning his offense.

That determination was not in error. Having jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291, we therefore AFFIRM.

I. BACKGROUND

Law enforcement officials found over 670 grams of a substance containing

methamphetamine in Altamirano-Quintero’s car. As a result, he and a

companion, his co-defendant, were arrested for drug trafficking.

Altamirano-Quintero pled guilty to one count of conspiring to possess, with the

intent to distribute, 500 grams or more of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, in exchange for the Government’s

agreement to drop a second charge. 1 Altamirano-Quintero faced a statutory

mandatory minimum ten-year sentence for this conviction. See 21 U.S.C.

1
21 U.S.C. § 841(a)(1) makes it “unlawful for any person knowingly or
intentionally . . . to manufacture, distribute, or dispense, or possess with the intent
to manufacture, distribute, or dispense, a controlled substance.” Under 21 U.S.C.
§ 812(a), (c)(Schedule III)(a)(3), “[a]ny substance (except an injectable liquid)
which contains any quantity of methamphetamine,” is a controlled substance.
And 21 U.S.C. § 846 provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.”

2
§ 841(b)(1)(A)(viii). 2

Altamirano-Quintero had two means available to him to avoid that

mandatory minimum ten-year sentence. First, his plea agreement anticipated that

he would be debriefed by, and would cooperate with, the Government. If, as a

result, he provided the Government with “substantial assistance,” then the

Government agreed to move, under U.S.S.G. § 5K1.1 3 and 18 U.S.C. § 3553(e), 4

2
Section 841(b)(1)(A)(viii) provides that anyone committing a drug offense
involving “500 grams or more of a mixture or substance containing a detectable
amount of methamphetamine . . . shall be sentenced to a term of imprisonment
which may not be less than 10 years or more than life.”
3
Section 5K1.1 specifically provides that,

[u]pon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court may depart
from the guidelines.

(a) The appropriate reduction shall be determined by the court for
reasons stated that may include, but are not limited to, consideration of
the following:

(1) the court’s evaluation of the significance and
usefulness of the defendant’s assistance, taking into
consideration the government’s evaluation of the
assistance rendered;

(2) the truthfulness, completeness, and reliability of any
information or testimony provided by the defendant;

(3) the nature and extent of the defendant’s assistance;

(4) any injury suffered, or any danger or risk of injury to
the defendant or his family resulting from his assistance;
(continued...)

3
for a downward departure at sentencing. Such a motion would have enabled the

court to impose a sentence below the mandatory minimum ten-year sentence, see

18 U.S.C. § 3553(e), and below the advisory guideline range, see U.S.S.G.

§ 5K1.1. See United States v. Belt, 89 F.3d 710, 714 n.5 (10th Cir. 1996).

Second, Altamirano-Quintero could qualify for the statutory safety valve

that 18 U.S.C. § 3553(f) provides from mandatory minimum sentencing. Section

3553(f) permits the district court to disregard a statutory mandatory minimum

sentence and instead impose a sentence within the advisory sentencing guidelines

range, if the defendant meets five criteria. 5 The only one of those criteria at issue

3
(...continued)

(5) the timeliness of the defendant’s assistance.

In sentencing Altamirano-Quintero, the district court used the 2004 sentencing
guidelines. At the time of sentencing, however, in June 2006, the 2005 guidelines
were in effect. See U.S.S.G. § 1B1.11 (providing that the court shall use guidelines
in effect on date of sentencing, unless doing so would violate the Constitution’s Ex
Post Facto Clause). In this case, however, Altamirano-Quintero concedes that there
is no difference between the two guideline versions that is relevant to the issues he
presents on appeal.

4
Section 3553(e) provides, in relevant part, that “[u]pon motion of the
Government, the court shall have the authority to impose a sentence below a level
established by statute as a minimum sentence so as to reflect a defendant’s
substantial assistance in the investigation or prosecution of another person who
has committed an offense.”
5
Section 3553(f) provides:

Notwithstanding any other provision of law, in the case of an offense
(continued...)

4
 5
(...continued)
under section 401, 404, or 406 of the Controlled Substances Act (21
U.S.C. 841, 844, 846) . . . , the court shall impose a sentence pursuant
to guidelines promulgated by the United States Sentencing Commission
under section 994 of title 28 without regard to any statutory minimum
sentence, if the court finds at sentencing, after the Government has been
afforded the opportunity to make a recommendation, that —

(1) the defendant does not have more than 1 criminal
history point, as determined under the sentencing
guidelines;

(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 section 408 of
the Controlled Substances Act; 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.

18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2(a) (similarly providing that “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
(continued...)

5
in this case is § 3553(f)(5)’s requirement that Altamirano-Quintero “truthfully

provide[] to the Government all information and evidence [he] ha[d] concerning

the offense or offenses that were part of the same course of conduct or of a

common scheme or plan.” 6 18 U.S.C. § 3553(f)(5).

5
(...continued)
defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5)”). “If the district court
makes these five findings, the defendant is eligible instead for the [advisory
sentencing] range proscribed by the United States Sentencing Guidelines.”
United States v. Cousins, 455 F.3d 1116, 1124 (10th Cir.), cert. denied, 127 S. Ct.
162, 706 (2006). In addition, he will be eligible for a two-level decrease in his
offense level as calculated under the guidelines. See U.S.S.G. § 2D1.1(b)(7). In
this case, the parties agree that Altamirano-Quintero satisfied the first four 18
U.S.C. § 3553(f) factors.
6
Although these statutory and guideline provisions provide two methods by
which a defendant can avoid a statutory mandatory minimum sentence, these two
methods provide two very different means to do so. See United States v.
Acosta-Olivas, 71 F.3d 375, 379 (10th Cir. 1995) (noting “[s]ection 5K1.1
concerning substantial assistance operates very differently from § 5C1.2,” the
guidelines’ safety valve provision).

If a defendant provides “substantial assistance,” 18 U.S.C. § 3553(e)
permits the district court to impose a sentence below the statutory mandatory
minimum, while U.S.S.G. § 5K1.1 permits the district court, for the same reason,
to impose a sentence below the advisory guideline range. Cf. Belt, 89 F.3d at 714
& n.5 (case decided prior to United States v. Booker, 543 U.S. 220 (2005),
treating guideline range as mandatory). The safety valve, on the other hand, only
permits the district court to impose a sentence below the statutory mandatory
minimum sentence, but still within the advisory guideline range (absent other
factors that might warrant the district court imposing a below-guideline sentence).
See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2; cf. Belt, 89 F.3d at 714 & n.5
(pre-Booker case treating guideline range as mandatory).

Further, in order to obtain the benefit of 18 U.S.C. § 3553(e) and U.S.S.G.
§ 5K1.1, a defendant must provide the government with “substantial assistance in
the investigation or prosecution of another person.” 18 U.S.C. § 3553(e)
(continued...)

6
 After he pled guilty, Altamirano-Quintero decided not to be debriefed by

the Government. At sentencing, therefore, the Government did not make any

motion under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. Defense counsel

acknowledged that the Government’s decision not to make such a motion was

warranted under the circumstances. Nevertheless, counsel argued that

6
(...continued)
(emphasis added). If he does, the Government can move for such a departure, see
18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1; see also Acosta-Olivas, 71 F.3d at 379,
but that motion is ordinarily left to the Government’s discretion (unless the
Government gives up that discretion as part of a plea agreement). See United
States v. Courtois, 131 F.3d 937, 938-39 (10th Cir. 1997). Upon the
Government’s motion, the sentencing court can depart below the statutory
mandatory minimum, and below the advisory guideline range, but only after the
court considers “the significance and usefulness of the defendant’s assistance,” as
well as the timeliness, nature, extent, truthfulness, completeness and reliability of
the defendant’s assistance and any injury or risk of injury the defendant suffered
as a result of his cooperation with the Government. See 18 U.S.C. § 3553(e);
U.S.S.G. § 5K1.1.

To satisfy the safety valve, on the other hand, a defendant has to meet the
other four statutory criteria (no more than one criminal history point, no use or
credible threat of use of violence or a firearm or other dangerous weapon in
committing the relevant offense, the offense did not result in death or serious
bodily injury to any person, and the defendant was not a leader or organizer of the
criminal endeavor), in addition to giving the Government all of the information he
has concerning his “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). But, unlike 18
U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, 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” him from satisfying the requirements
for the application of the safety valve. 18 U.S.C. § 3553(f)(5); see also
Acosta-Olivas, 71 F.3d at 379. Moreover, if the defendant satisfies these criteria
for the safety valve, it is unnecessary for the Government to make a motion for a
sentence less than the statutory mandatory minimum; the defendant is, instead,
entitled to that relief. See 18 U.S.C. § 3553(f); see also Acosta-Olivas, 71 F.3d at
379.

7
Altamirano-Quintero still qualified for the safety valve under 18 U.S.C. § 3553(f),

based upon the facts Altamirano-Quintero had admitted in his plea agreement.

The district court, however, found that Altamirano-Quintero was not

eligible for the safety valve:

Paragraph 5 of subsection F of Section 3553 provides in relevant
part as follows, and I quote, “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.”

On this record, that fifth requirement has not been satisfied by the
defendant, and therefore, the defendant is not entitled to safety valve
relief under 18 U.S.C. Section 3553(f), and therefore the defendant’s
request for downward departure for a sentence below the statutory
minimum should be denied.

The court then sentenced Altamirano-Quintero to the statutory mandatory

minimum 120 months’ imprisonment.

II. DISCUSSION

On appeal, Altamirano-Quintero challenges only the district court’s

imposition of the mandatory minimum ten-year sentence, arguing that the district

court erred in finding him ineligible for the safety valve. In support of that

contention, he asserts three arguments, which are addressed below.

A. Whether the district court erred as a matter of law in concluding
Altamirano-Quintero was not eligible for the safety valve solely
because he was not debriefed by the Government.

Altamirano-Quintero first argues that the district court incorrectly held, as a

8
matter of law, that the safety valve provision required that he submit to a

Government debriefing. This court reviews de novo the district court’s statutory

interpretation of the safety-valve provision. See United States v. Stephenson, 452

F.3d 1173, 1180 (10th Cir. 2006).

Both Altamirano-Quintero and the Government agree that § 3553(f)(5) does

not specifically require that a defendant undergo a government debriefing. 7 See

also United States v. Montanez, 82 F.3d 520, 522-23 (1st Cir. 1996) (drawing this

same conclusion). But in this case, the district court did not hold that § 3553(f)

required such a debriefing.

At sentencing, the district court first addressed whether the Government

would file a motion under U.S.S.G. § 5K1.1. The court specifically noted that

[i]n the Plea Agreement and Stipulation of Facts Relevant to

7
18 U.S.C. § 3553(f)(5) does not specifically mention debriefing. Rather, it
only requires that “the defendant . . . 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.” Id.
Section 3553(f) does not further prescribe how the defendant must convey this
information to the Government. See United States v. Montanez, 82 F.3d 520,
522-23 (1st Cir. 1996). There may be many ways that a defendant could provide
the Government with information sufficient to satisfy § 3553(f)(5).
See Stephenson, 452 F.3d at 1179-81 (defendant attempted to satisfy § 3553(f)(5)
through a “proffer letter” sent to the government, but failed to include all the
information he had); id. at 1181-82 (considering whether the defendant ever
requested an interview with the Government); United States v. Virgen-Chavarin,
350 F.3d 1122, 1130 (10th Cir. 2003) (defendant provided affidavit, but failed to
provide complete information); United States v. Gama-Bastidas, 142 F.3d 1233,
1243 (10th Cir. 1998) (holding defendant’s attempt to provide government with
information in the judge’s chambers immediately before sentencing was “not too
late”) (quotation omitted).

9
 Sentencing, . . . the parties acknowledged that the defendant had
expressed the intent to cooperate with the office of the United States
Attorney for the District of Colorado by providing testimony,
documents, and other information known to the defendant about the
criminal wrongdoing of other persons.

The defendant in his plea agreement agreed that he shall
cooperate fully with the government in the ways described in that plea
agreement. . . .

In that same plea agreement, the government reserved the sole
right to evaluate the nature and extent of the cooperation if any of the
defendant, and to make the cooperation of the defendant, if any, known
to the court at the time of sentencing.

At the time of the plea agreement, the defendant had not been
debriefed. At that time, the parties stipulated that the defendant would
submit to a proffer or interview by agents of the federal government
between the date of the entry of the plea in June 2005, and the first
[scheduled] sentencing hearing in September of 2005.

Due to actions of the defendant, that debriefing and that proffer
did not occur. Had the defendant cooperated completely, had the
defendant submitted to the debriefing and proffer included in the plea
agreement, the government anticipated filing a motion under guideline
Section 5K1.1, and the provisions of 18 U.S.C. § 3553(e), requesting a
downward departure for substantial assistance.

Because the defendant breached that portion of his plea
agreement, the government has not filed any such motion. And there
is no request to depart downward from the guideline range based on
substantial assistance.

The district court then immediately, but separately, turned to the question

of whether Altamirano-Quintero was eligible for the 18 U.S.C. § 3553(f) safety

valve.

The defendant requests that he be afforded the benefits of the
so-called safety valve, which implicates 18 U.S.C. Section 3553(f). In

10
 turn, subsection (f) of Section 3553 has five components. No. 5 is at
issue . . . in the context of the request by the defendant.

Paragraph 5 of subsection F of Section 3553 provides in relevant
part as follows, and I quote, “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.”

On this record, that fifth requirement has not been satisfied by the
defendant, and therefore, the defendant is not entitled to safety valve
relief under 18 U.S.C. Section 3553(f), and therefore the defendant’s
request for downward departure for a sentence below the statutory
minimum should be denied.

Contrary to Altamirano-Quintero’s argument on appeal, the district court

did not specifically hold that § 3553(f)(5), as a matter of law, requires a

debriefing. Therefore, the district court did not, as a factual matter, commit the

error asserted by Altamirano-Quintero of requiring a debriefing with the

Government before Altamirano-Quintero could qualify for the § 3553(f) safety

valve.

B. Whether the Government conceded in the plea agreement that
Altamirano-Quintero had already complied with § 3553(f)(5) based
upon the facts he admitted in the plea agreement.

Altamirano-Quintero next argues that the Government stipulated, in the

plea agreement, that he had, at the time he pled guilty, already complied with

§ 3553(f)(5)’s requirement that he truthfully disclose all the information that he

had regarding his offense. We disagree.

11
 This court reviews the terms of the plea agreement de novo. 8 See United

States v. Rodriguez-Delma, 456 F.3d 1246, 1250 (10th Cir. 2006), cert. denied,

127 S. Ct. 1338 (2007). In interpreting a plea agreement, we apply “[g]eneral

principles of contract law . . . , looking to the [agreement’s] express language and

construing any ambiguities against the government as the drafter of the

agreement.” Id. at 1250-51 (quotation omitted); see also United States v. Bunner,

134 F.3d 1000, 1003 (10th Cir. 1998). “The plea agreement must be construed

according to what [the] defendant reasonably understood at the time he made the

agreement.” United States v. Prince, 204 F.3d 1021, 1023 (10th Cir. 2000).

The plea agreement Altamirano-Quintero had with the Government

contained five sections. 9 The first section stated the “Plea Agreement”; the

second set forth the statutory penalties that Altamirano-Quintero faced by

pleading guilty to the drug conspiracy count; the third set forth the parties’

8
Altamirano-Quintero never argued at sentencing that the Government had,
in the plea agreement, stipulated that he had already satisfied § 3553(f)(5). This
might suggest our review should instead be for plain error. See
Fed. R. Crim. P. 52(b). Nevertheless, in the analogous situation where a
defendant fails to object to the Government’s breaching a plea agreement at the
time the breach occurs, this court still reviews the terms of the plea agreement de
novo. See United States v. Rodriguez-Delma, 456 F.3d 1246, 1250 (10th Cir.
2006), cert. denied, 127 S. Ct. 1338 (2007); United States v. Werner, 317 F.3d
1168, 1169 (10th Cir. 2003); United States v. Peterson, 225 F.3d 1167, 1170 (10th
Cir. 2000) (on reh’g). We follow that reasoning in this case and interpret the plea
agreement here de novo.
9
The general format of a plea agreement in the District of Colorado is
prescribed by the District’s Local Rule 11.1(C) and Appendix J.

12
“Stipulation to Relevant Facts” underlying Altamirano-Quintero’s guilty plea; and

the fourth section estimated how the guidelines might apply, predicting

Altamirano-Quintero would be subject to an advisory sentencing range of between

87 and 108 months, were he not subject to the statutory mandatory minimum

ten-year sentence. The plea agreement’s fifth and final section was entitled “Why

the Proposed Plea Disposition is Appropriate.” In the first paragraph of that

two-paragraph section, 10 the plea agreement stated:

The parties believe that the sentencing range resulting from the plea
agreement is appropriate because all relevant conduct is disclosed; that
the stipulated facts by the parties take into account all pertinent
sentencing factors with respect to this defendant; and that the charge to
which the defendant has agreed to plead guilty adequately reflects the
seriousness of the actual offense behavior.

(Emphasis added.)

Based upon this language in the last section, Altamirano-Quintero argues

on appeal that the Government conceded in the plea agreement that he had already

satisfied § 3553(f)(5)’s requirement that he “truthfully provide[] to the

Government all information and evidence [he] has concerning the offense or

offenses that were part of the same course of conduct or of a common scheme or

plan.” We reject Altamirano-Quintero’s interpretation of the plea agreement.

The paragraph in the plea agreement on which Altamirano-Quintero relies

does not address 18 U.S.C. § 3553(f) at all, but instead clearly concerns the

10
The second paragraph of this final section asserted that the agreement
stated the parties’ entire agreement.

13
application of the sentencing guidelines to Altamirano-Quintero. 11 This is logical

because this fifth section of the plea agreement immediately follows the fourth

section’s estimation of the advisory sentencing range to which

Altamirano-Quintero would be subject.

Moreover, the particular phrases in the agreement to which

Altamirano-Quintero cites in support of his interpretation—“[t]he parties believe

that the sentencing range resulting from the proposed plea agreement is

appropriate because all relevant conduct is disclosed” and “the stipulated facts by

the parties take into account all pertinent sentencing factors with respect to this

defendant”—directly concern the “relevant conduct” on which the sentencing

guidelines calculate an advisory sentencing range. See U.S.S.G. § 1B1.3. More

11
The language of this paragraph tracks U.S.S.G. § 6B1.2, which requires
that, before accepting a plea agreement in which the Government has agreed to
drop a pending charge, a court must satisfy itself that the agreement still reflects
the seriousness of the defendant’s offense and will not undermine the statutory
purposes of sentencing:

In the case of a plea agreement that includes the dismissal of any
charges or an agreement not to pursue potential charges
([Fed. R. Crim. P.] 11(c)(1)(A)), the court may accept the agreement if
the court determines, for reasons stated on the record, that the
remaining charges adequately reflect the seriousness of the actual
offense behavior and that accepting the agreement will not undermine
the statutory purposes of sentencing or the sentencing guidelines.

However, a plea agreement that includes the dismissal of a charge or a
plea agreement not to pursue a potential charge shall not preclude the
conduct underlying such charge from being considered under the
provisions of § 1B1.3 (Relevant Conduct) in connection with the
count(s) of which the defendant is convicted.

14
specifically, the guidelines calculate a defendant’s offense level based on his

“relevant conduct,” which in pertinent part, includes the following:

Chapters Two (Offense Conduct) and Three (Adjustments). Unless
otherwise specified, (i) the base offense level where the guideline
specifies more than one base offense level, (ii) specific offense
characteristics and (iii) cross references in Chapter Two, and
(iv) adjustments in Chapter Three, shall be determined on the basis of
the following:

(1) (A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (a
criminal plan, scheme, endeavor, or enterprise undertaken
by the defendant in concert with others, whether or not
charged as a conspiracy), all reasonably foreseeable acts
and omissions of others in furtherance of the jointly
undertaken criminal activity,

that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid
detection or responsibility for the offense;

....

(3) all harm that resulted from the acts and omissions specified in
subsection[] (a)(1) . . . above, and all harm that was the object of
such acts and omissions; and

(4) any other information specified in the applicable guideline.

U.S.S.G. § 1B1.3.

Relevant conduct for sentencing purposes, therefore, “comprises more,

often much more, than the offense of conviction itself, and may include

15
uncharged and even acquitted conduct.” United States v. Allen, 488 F.3d 1244,

1254-55 (10th Cir. 2007). This relevant conduct, however, still “must relate to

the offense of conviction.” Id. at 1255. And where, as here, the offense of

conviction involves criminal activity undertaken jointly with others, the relevant

conduct includes “‘all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.’” Stephenson, 452 F.3d at

1180 (quoting U.S.S.G. § 1B1.3(a)(1)(B)).

Courts addressing the requirements for a defendant to meet the safety valve

under 18 U.S.C. § 3553(f) have incorporated the sentencing guidelines’ concept

of relevant conduct. See Stephenson, 452 F.3d at 1180; see also Virgen-Chavarin,

350 F.3d at 1130. Thus, this court has held that § 3553(f)’s requirement that a

defendant “provide . . . the Government [with] 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), “is

defined as ‘the offense of conviction and all relevant conduct,’” Stephenson, 452

F.3d at 1180 (quoting U.S.S.G. § 5C1.2, cmt. n. 3); see also Virgen-Chavarin, 350

F.3d at 1130. Thus, the offense of conviction and the related relevant conduct

establish the parameters of the criminal activity about which a defendant must

give the Government all the information he has in order to qualify for the safety

valve under 18 U.S.C. § 3553(f). See Stephenson, 452 F.3d at 1180;

Virgen-Chavarin, 350 F.3d at 1129-30; Acosta-Olivas, 71 F.3d at 377-78; see also

16
United States v. Sanchez, 475 F.3d 978, 981 (8th Cir. 2007); United States v.

Montes, 381 F.3d 631, 635-36 (7th Cir. 2004); United States v. Johnson, 375 F.3d

1300, 1302-03 (11th Cir. 2004) (per curiam); United States v. Salgado, 250 F.3d

438, 459 (6th Cir. 2001); United States v. Cruz, 156 F.3d 366, 371 (2d Cir. 1998);

United States v. Miller, 151 F.3d 957, 958, 959-61 (9th Cir. 1998); United States

v. Sabir, 117 F.3d 750, 753 (3d Cir. 1997).

The plea agreement’s indication in this case that “all relevant conduct” has

been disclosed sets the parameters for the criminal activity about which the safety

valve required Altamirano-Quintero to give the Government all the information he

had. But this language in the plea agreement did not further indicate that

Altamirano-Quintero had already provided the Government with that information.

Cf. Stephenson, 452 F.3d at 1180-81 (noting the relevant conduct about which the

defendant was required to inform the Government, in order to qualify for the

safety valve, included the drug trafficking the defendant undertook jointly with

co-conspirators, but upholding the district court’s factual finding that the

defendant had failed to give the Government all of the information he had about

that jointly undertaken conduct).

Our conclusion here is bolstered by two facts. First, and most telling, this

paragraph in the plea agreement makes no reference at all to 18 U.S.C. § 3553(f).

In fact, the plea agreement as a whole makes only two fleeting references to 18

U.S.C. § 3553(f)’s safety valve, and those references are not made in connection

17
with the language on which Altamirano-Quintero relies here. In the plea

agreement’s fourth section, in which the parties estimated the advisory guideline

range that would apply to Altamirano-Quintero, if he were not subject to the

statutory mandatory minimum ten-year sentence, the plea agreement notes that, if

Altamirano-Quintero “is otherwise eligible, the Government would stipulate to

a . . . 2-level ‘safety-valve’ reduction” in his offense level available under the

guidelines. Later in that same fourth section, the plea agreement notes that,

“because the offense of conviction in this case involve[s] 500 grams or more of a

mixture and substance containing methamphetamine, the mandatory minimum

sentence of 120 months is applicable to this defendant unless the defendant is

eligible for the ‘safety valve’ reduction set forth above.” Those are the only

references in the plea agreement to § 3553(f), and they do not suggest that the

Government was conceding that Altamirano-Quintero had already satisfied the

safety valve’s requirement that he “truthfully provide[] to the Government all

information and evidence [he] has concerning” his offense. 18 U.S.C.

§ 3553(f)(5); cf. United States v. Reyes Pena, 216 F.3d 1204, 1211-12 (10th Cir.

2000) (rejecting argument that Government had promised not to seek the

application of a specific enhancement to the defendant’s offense level where the

plea agreement never mentioned that specific enhancement); United States v.

Rockwell Int’l Corp., 124 F.3d 1194, 1199 (10th Cir. 1997) (noting that the

Government’s obligations under plea agreement “do not issue from mere

18
silence”); Cunningham v. Diesslin, 92 F.3d 1054, 1059 (10th Cir. 1996) (rejecting

defendant’s argument that the plea agreement entitled him to mandatory parole

because “application of mandatory parole to [his] sentence is neither an explicit

nor an implicit part of the plea offer”).

Second, the language in the plea agreement on which Altamirano-Quintero

relies is standard language prescribed by the local rule. See D.C.COLO.LCrR

11.1(C) and App. J. Of course, including this language in the plea agreement

binds the parties to that agreement. But relying on the express language of the

agreement, see Rodriguez-Delma, 456 F.3d at 1250-51, we cannot conclude that

the Government, by using this standard language, meant to concede in every case

that the defendant has satisfied the safety valve’s § 3553(f)(5)’s disclosure

requirement.

Nor can we conclude that Altamirano-Quintero could have “reasonably

understood” the plea agreement to include such a government concession.

Instead, the plea agreement clearly contemplates that there would be additional

information that the court would consider at sentencing:

With the exception of the stipulated facts set forth above, this statement
of facts does not preclude either party from presenting and arguing, for
sentencing purposes, additional facts or evidence which a party believes
is relevant to sentencing. Further, the Court is not bound by the factual
stipulations of the parties. In determining the factual basis for the
sentence, the Court may consider not only the stipulations of the
parties, but also the results of any pre-sentencing investigation that may
be conducted by the U.S. Probation Department, together with any other
relevant information that may be brought to the Court’s attention.

19
This language, then, in no way establishes that the parties believed that

Altamirano-Quintero had already fully disclosed all of the information he had for

§ 3553(f) purposes.

For these reasons, we conclude that the language contained in the plea

agreement’s fifth section does not amount to a Government concession that

Altamirano-Quintero had already complied with 18 U.S.C. § 3553(f) at the time

he pled guilty. Nor could Altamirano-Quintero, at the time he entered into the

agreement, have reasonably understood this language to mean that he had already

met § 3553(f)(5)’s requirements. Therefore, Altamirano-Quintero’s interpretation

of the plea agreement, as he asserts it now on appeal, is not reasonable. See

Prince, 204 F.3d at 1023 (rejecting defendant’s interpretation because it was not

reasonable); cf. United States v. Brye, 146 F.3d 1207, 1211 (10th Cir. 1998)

(declining to give plea agreement “nonsensical” interpretation).

C. Whether the district court clearly erred in finding that
Altamirano-Quintero was not eligible for safety-valve relief because he
had not disclosed to the Government all of the information he had
concerning his offense.

Lastly, Altamirano-Quintero asserts that the district court’s finding that he did

not qualify for § 3553(f)’s safety valve was clearly erroneous. The district court

found that Altamirano-Quintero did not qualify because he had not truthfully

disclosed all the information he had concerning his offense.

This court reviews the district court’s determination of a defendant’s

20
eligibility for the safety valve for clear error. See Stephenson, 452 F.3d at 1180;

see also United States v. Payton, 405 F.3d 1168, 1170-71 (10th Cir. 2005) (noting

this remains the standard even after Booker, 543 U.S. 220). The specific question

posed by § 3553(f)(5), whether or not a defendant has provided the Government

with truthful and complete information, is also a factual determination reviewed

for clear error. See Gama-Bastidas, 142 F.3d at 1241-43. In conducting this

clear-error review, “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.” Stephenson, 452 F.3d at

1180 (quotation, alteration omitted). It was Altamirano-Quintero’s burden to

prove, by a preponderance of the evidence, that he did truthfully provide the

Government with all the information he had. 12 See id. at 1179.

At sentencing, the district court had before it the facts to which the parties

stipulated in the plea agreement. Altamirano-Quintero argues that, because there

is no indication that those facts are untruthful, they are sufficient to satisfy his

burden under § 3553(f)(5). A defendant’s disclosure, however, “must not merely

be truthful but also complete.” Stephenson, 452 F.3d at 1180 (quotation omitted).

Here, there are obvious informational gaps in the facts Altamirano-Quintero

12
For this reason, Altamirano-Quintero’s argument on appeal that the
Government has not shown what information he failed to disclose is unavailing.
See United States v. Salazar-Samaniega, 361 F.3d 1271, 1276-77 (10th Cir. 2004)
(rejecting this same argument).

21
admitted when he pled guilty. Altamirano-Quintero admitted that he had “670.2

grams of a mixture” containing methamphetamine in his car, which he had driven

from California to Denver with a co-defendant. But Altamirano-Quintero does

not indicate how or where he got the methamphetamine, or what he intended to do

with it. See Montanez, 82 F.3d at 523 (affirming district court’s finding that the

defendant was not eligible for safety-valve relief on the basis of a similar gap in

information).

More to the point, this court, on several previous occasions, has held that

where, as here, a defendant pleads guilty to conspiring with his co-defendant “and

with other persons, known and unknown to the Grand Jury,” the defendant does

not comply with § 3553(f)(5) without identifying the other participants in the

conspiracy, or at least explaining why he is unable to identify those other

participants. See Stephenson, 452 F.3d at 1180-81 (holding that, “[w]hen the

offense involves conspiracy or a jointly undertaken criminal venture, we require

the defendant to disclose not only everything he knows about his own actions, but

also everything he knows about his co-conspirators”); Virgen-Chavarin, 350 F.3d

at 1130 (same); Acosta-Olivas, 71 F.3d at 377-78 (same).

In this case, Altamirano-Quintero has never identified any of the other

participants in the charged drug conspiracy. Nor does he explain why he could

not do so. See Stephenson, 452 F.3d at 1180-81 (upholding denial of safety-valve

relief where it appeared “highly unlikely” that the defendant “did not know the

22
identities of those individuals who were involved in assisting” him and his named

co-defendant as part of a drug trafficking conspiracy).

In addition, in this case, Altamirano-Quintero indicated in the plea

agreement that he intended to cooperate with the Government and to provide

“substantial assistance.” This further suggests that Altamirano-Quintero had

additional information to disclose and bolsters the record’s already sufficient

suggestion that he has failed to disclose all the information he had. For these

reasons, the record before the district court was sufficient to support the district

court’s finding that Altamirano-Quintero had failed to prove by a preponderance

of the evidence that he had made a complete and truthful disclosure to the

Government of all the information he had concerning his offense. 13 That factual

finding, therefore, was not clearly erroneous. See Virgen-Chavarin, 350 F.3d at

1130.

III. CONCLUSION

For the foregoing reasons, this court AFFIRMS Altamirano-Quintero’s

statutory mandatory minimum ten-year sentence.

13
The information Altamirano-Quintero failed to disclose, then, concerns
his “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), as the statute requires.
Therefore, Altamirano-Quintero’s argument on appeal that the district court was
instead requiring him to disclose information concerning other people’s crimes is
unavailing.

23
06-1254, United States v. Altamirano-Quintero

HOLMES, J., concurring.

I agree with the majority that the district court did not clearly err in finding

Mr. Altamirano-Quintero ineligible for safety valve relief. More specifically, I

agree with the majority’s reasoning in Sections II(A) and II(C) and concur in the

judgment. I am, however, troubled by Section II(B) of the majority opinion.

There, the majority addresses whether Mr. Altamirano-Quintero could reasonably

have understood, from the Plea Agreement’s express terms, that the government

conceded that he had “already complied with § 3553(f)(5)’s requirement that he

truthfully disclose all the information he had regarding his offense.” Maj. Op. at

11. I respectfully disagree with the majority’s reasoning in Section II(B) and,

therefore, cannot fully join its opinion.

In particular, I write separately for two reasons. First, to properly resolve

this case, I find it unnecessary to reach the issue addressed in Section II(B).

Second, the majority’s tortuous efforts to overcome Mr. Altamirano-Quintero’s

reasonable arguments in favor of a government concession are not only

unpersuasive, but also impose an unacceptable cost. Specifically, they run

counter to, and undermine, our settled precedent concerning the interpretation of

both the Sentencing Guidelines and plea agreements. Regarding the latter, the

majority repeatedly employs a rigid, formalistic approach and declines to construe

any ambiguities in the instant Plea Agreement against the drafter – the
government. 1

The safety valve provision (18 U.S.C. § 3553(f)) expressly requires a

district court to independently determine whether a defendant has satisfied the

conditions for granting safety valve relief, after affording the government “the

opportunity to make a recommendation.” E.g., United States v. Gambino, 106

F.3d 1105, 1110 (2d Cir. 1997) (“The plain language of the statute required the

district court to make its own determination whether [the defendant] satisfied the

safety valve provision, in light of the entire record including the government’s

recommendation.”). Therefore, even if the government conceded that Mr.

Altamirano-Quintero had satisfied the safety valve disclosure requirement, that

concession would not compel the conclusion that Mr. Altamirano-Quintero had

done so.

The district court was free to disregard the government’s concession in

favor of other evidence bearing on the subject. And, as the majority cogently

demonstrates in Section II(C), the district court understood its independent role

and did not clearly err in finding on the record that Mr. Altamirano-Quintero

failed to satisfy the safety valve disclosure provision. Accordingly, as an initial

1
See, e.g., United States v. Werner, 317 F.3d 1168, 1170 (10th Cir.
2003) (construing plea agreement ambiguities against the government, as drafter);
United States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199 (10th Cir. 1997) (“We
will not allow the government to resort to a rigidly literal construction of the
language of the plea agreement to frustrate a defendant’s reasonable
expectations.” (internal quotation marks omitted) (quoting United States v.
Shorteeth, 887 F.2d 253, 256 (10th Cir. 1989))).

2
matter, I find the majority’s discussion in Section II(B) to be completely

unnecessary to properly resolve this case. Even assuming arguendo the

government’s concession, I would reach the same conclusion regarding the

unavailability of safety valve relief.

In addition, although I need not definitively opine on whether the

government conceded through its relevant conduct stipulation that Mr.

Altamirano-Quintero satisfied the safety valve’s disclosure requirement, 2 a strong

argument can be made that the government did so – more specifically, that Mr.

Altamirano-Quintero reasonably could have understood the government to have

made such a concession in the Plea Agreement. The majority’s analysis to the

contrary is unpersuasive and legally flawed. It fails to consistently adhere to the

Guideline-defined meaning of “relevant conduct” and subjects the Plea

Agreement to an impermissibly strained interpretation.

First, the majority observes that the government’s relevant conduct

stipulation “directly concern[ed] the ‘relevant conduct on which the sentencing

2
The Plea Agreement provides in pertinent part:

The parties believe that the sentencing range resulting from the plea
agreement is appropriate because all relevant conduct is disclosed;
that the stipulated facts by the parties take into account all pertinent
sentencing factors with respect to this defendant; and that the charge
to which the defendant has agreed to plead guilty adequately reflects
the seriousness of the actual offense behavior.

R., Vol. I, Doc. No. 139, at 9-10 (Plea Agreement and Stipulation of Facts
Relevant to Sentencing, filed June 20, 2005) (emphasis added).

3
guidelines calculate an advisory sentencing range” and did nothing more than

“set[] the parameters for the criminal activity” about which Mr. Altamirano-

Quintero was later required to provide information if he hoped to obtain safety

valve relief. Maj. Op. at 14, 17. Accordingly, the majority reasons that Mr.

Altamirano-Quintero could not have reasonably understood the government to

have conceded that he had already provided the requisite information. Id. at 17.

This analysis rests on the faulty assumption that the term “relevant conduct”

means something different when calculating an advisory Guideline sentence than

it does when determining whether a defendant is entitled to safety valve relief.

The plain language of the Guidelines undercuts the majority’s tacit assumption,

and, therefore, weakens its rationale.

“Relevant conduct” is a term of art in criminal sentencing. As the majority

recognizes, “relevant conduct” embraces the “Factors that Determine the

Guideline Range.” U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, “relevant conduct”

informs the district court’s determinations of “(i) the base offense level . . ., (ii)

specific offense characteristics and (iii) cross references in Chapter Two, and (iv)

adjustments in Chapter Three, . . . .” Id. The majority further acknowledges that

to satisfy the safety valve’s disclosure provision, a defendant must provide the

government with complete information concerning the “offense of conviction and

all relevant conduct” as defined by U.S.S.G. § 1B1.3(a)(1)(B). United States v.

Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006) (internal quotation marks

4
omitted and emphasis added) (quoting U.S.S.G. § 5C1.2, cmt. n.3 (2003)); see

also United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995).

Notwithstanding its recognition that “relevant conduct” is applicable in both

formulating an advisory sentencing range and ascertaining the availability of

safety valve relief, the majority nonetheless fails to accord the term “relevant

conduct” the same meaning in both contexts.

“We interpret the Sentencing Guidelines according to accepted rules of

statutory construction.” United States v. Reaves, 253 F.3d 1201, 1203 (10th Cir.

2001). “In interpreting a guideline, we look at the language of the guideline

itself, as well as at the ‘interpretive and explanatory commentary to the guideline’

provided by the Sentencing Commission.” United States v. Robertson, 350 F.3d

1109, 1112 (10th Cir. 2003) (quoting United States v. Frazier, 53 F.3d 1105, 1112

(10th Cir. 1995)). The term “relevant conduct” is expressly defined by the

Guidelines. Therefore, we typically apply the same meaning to the term each

time it appears in the statute. Sierra Club v. Seaboard Farms Inc., 387 F.3d

1167, 1175 (10th Cir. 2004) (when a technical term is used in a statute, “it is

presumed . . . that the term [has] the same meaning in each of the sections or

subsections”); see also United States v. Perez, 366 F.3d 1178, 1182 (11th Cir.

2004) (“Where the same language appears in two guidelines, it is generally

presumed that the language bears the same meaning in both.”). Cf. Watson v.

United States, — S. Ct. —, 2007 WL 4292111, at ** 3-5 (Dec. 10, 2007)

5
(rejecting a uniform application of the term “use,” which was undefined by the

statute and not a term of art).

Because “relevant conduct” means the same throughout the Guidelines, the

majority’s attempt to limit the scope of the government’s chosen language solely

to the calculation of the advisory sentencing range is unpersuasive. “Relevant

conduct” means the same for calculation of the advisory sentencing range as it

does for application of the safety valve. Consequently, we could reasonably

construe the government’s express acknowledgment that Mr. Altamirano-Quintero

disclosed all “relevant conduct” for one Guidelines purpose as an

acknowledgment that he disclosed it for all Guidelines purposes.

In addition, I question the majority’s reading of the Plea Agreement itself.

The majority concludes for two principal reasons that Mr. Altamirano-Quintero

could not reasonably interpret the Plea Agreement as stipulating that he had

already provided the government with all of the information necessary to obtain

safety valve relief: first, because the Plea Agreement refers only fleetingly to 18

U.S.C. § 3553(f); 3 and second, because it contemplates that the court would

3
Identifying several passages in the Plea Agreement, the majority
asserts, “they do not suggest that the Government was conceding that Altamirano-
Quintero had already satisfied the safety-valve’s requirement that he ‘truthfully
provide[] to the Government all information and evidence [he] has concerning the
offense.” Maj. Op. at 18 (quoting 18 U.S.C. § 3553(f)(5)). I find a less labored
interpretation of the language at issue more persuasive. The government’s
relevant conduct language, when read in conjunction with the two provisions
identified by the majority, could reasonably convey that although Mr. Altamirano-
(continued...)

6
consider additional information at sentencing. I am not convinced by either

argument.

Relying on United States v. Reyes Pena, 216 F.3d 1204, 1212 (10th Cir.

2000), United States v. Rockwell Int’l Corp, 124 F.3d 1194, 1199 (10th Cir.

1997), and Cunningham v. Diesslin, 92 F.3d 1054, 1059 (10th Cir. 1996), the

majority concludes that because the Plea Agreement language at issue does not

expressly state that Mr. Altamirano-Quintero complied with § 3553(f), or even

refer to the provision, the government did not concede that he disclosed all of the

necessary information to meet the disclosure requirement. The cited cases,

however, are inapposite.

In each of them, the defendant was attempting to introduce a new term into

a plea agreement. Here, the Plea Agreement already includes the term in question

– the relevant conduct stipulation. The inquiry relates to what that term means.

That the “relevant conduct” language does not explicitly refer to § 3553(f)

renders its scope, at most, ambiguous. Such ambiguities are “construe[d] . . .

against the government as the drafter of the agreement,” United States v. Werner,

317 F.3d 1168, 1170 (10th Cir. 2003). 4

3
(...continued)
Quintero had revealed sufficient information to satisfy § 3553(f)(5), the
government was noncommittal as to whether he had satisfied all of the elements
necessary to obtain safety valve relief.
4
The majority refers to the relevant conduct stipulation as “standard
(continued...)

7
 Furthermore, simply because the Plea Agreement allows the parties to

present additional facts or evidence at sentencing 5 would not necessarily prevent

Mr. Altamirano-Quintero from reasonably believing that the government had

conceded that he had already disclosed all “relevant conduct” for safety valve

purposes. Relevant conduct does not constitute the entire universe of information

4
(...continued)
language prescribed by the local rule.” Maj. Op. at 19. Although the majority
acknowledges, as it must, that such generic language has the power to “bind[] the
parties to that agreement,” it states that it “cannot conclude that the Government,
by using this standard language, meant to concede in every case that the
defendant has satisfied the safety valve’s § 3553(f)(5)’s disclosure requirement.”
Id. However, whether the government actually meant to concede that general
proposition is not the point. Rather, at issue is what Mr. Altamirano-Quintero
reasonably could have concluded the government was giving him through the
relevant conduct stipulation. We have acknowledged that “the rules of contract
law inform the interpretation and enforcement of promises in a plea agreement.”
United States v. Novosel, 481 F.3d 1288, 1291 (10th Cir. 2007) (internal
quotation marks and brackets omitted) (quoting Rockwell Int’l Corp., 124 F.3d at
1199). Thus, we must rely on the express language of the agreement to discern
the parties’ intent. United States v. Brye, 146 F.3d 1207, 1210 (10th Cir. 1998).
5
The Plea Agreement provides:

With the exception of the stipulated facts set forth above, this
statement of facts does not preclude either party from
presenting and arguing, for sentencing purposes, additional
facts or evidence which a party believes is relevant to
sentencing. Further, the Court is not bound by the factual
stipulations of the parties. In determining the factual basis for
the sentence, the Court may consider not only the stipulations
of the parties, but also the results of any pre-sentencing
investigation that may be conducted by the U.S. Probation
Department, together with any other relevant information that
may be brought to the Court’s attention.

R., Vol. I, Doc. No. 139 at 6.

8
that courts properly may consider in imposing sentence. The Plea Agreement

merely recognizes that truth.

Absent some restriction in the Guidelines or other law, the sentencing court

is free to “consider, without limitation, any information concerning the

background, character and conduct of the defendant.” U.S.S.G. § 1B1.4.

Consequently, the Plea Agreement could reasonably be read to allow the parties

to provide additional information for the court’s consideration, without its

language eroding the foundation for Mr. Altamirano-Quintero’s arguably

reasonable belief that the government had conceded that he already had provided

all of the information necessary to satisfy the safety valve’s disclosure provision

(i.e., information concerning his relevant conduct). 6

In sum, I disagree with the majority’s decision to reach the issue discussed

in Section II(B), relating to the government’s alleged plea agreement concession.

It is a step unnecessary to the proper resolution of this case. Moreover, the

majority’s decision to take this step will be costly; its strained analysis

6
Indeed, as the majority correctly recognizes, the informational
requirements of the safety valve provision and the substantial assistance provision
are not coterminous. Accordingly, if Mr. Altermarino-Qunitero had in fact
followed the path anticipated by the Plea Agreement and sought substantial
assistance relief, he could quite conceivably have provided the government (and,
derivatively, the court) with additional information concerning the illegal
activities of others that would not have fallen within the scope of the relevant
conduct of his offense (i.e., outside of the universe of information that he was
required to disclose to obtain safety valve relief).

9
contravenes our circuit’s settled principles for interpreting both the Guidelines

and plea agreements. Accordingly, although concurring in the result, I cannot

fully join the majority’s opinion.

10