FILED
United States Court of Appeals
Tenth Circuit
March 24, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 06-4172
v.
MARCOS A. CERVANTES, also
known as Marco Antonio Cervantes,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:05-CR-00204-TC)
Elizabethanne C. Stevens, Assistant United States Attorney (Brett L. Tolman,
United States Attorney, on the brief), Salt Lake City, Utah, for Plaintiff -
Appellee.
Scott Keith Wilson, Assistant Federal Defender (Steven B. Killpack, Utah Federal
Defender, on the briefs), Salt Lake City, Utah, for Defendant - Appellant.
Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
BRISCOE, Circuit Judge.
KELLY, Circuit Judge.
Defendant-Appellant Marcos A. Cervantes pled guilty to one count of
possession of methamphetamine with intent to distribute and was sentenced to the
statutory minimum 120 months’ imprisonment followed by five years of
supervised release. 21 U.S.C. § 841(a)(1), (b)(1)(A). On appeal, Mr. Cervantes
challenges the district court’s refusal to grant him a “safety-valve” adjustment so
that he might be sentenced within the advisory guideline range below the
statutory minimum. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Our jurisdiction
arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
Background
Mr. Cervantes’s conviction stemmed from an arrest based upon information
from a confidential informant. In February 2005, narcotics agents arranged a
methamphetamine transaction by calling a telephone number supplied by the
informant. The transaction was to take place in a Wal-Mart parking lot in Orem,
Utah on February 14, and the agents established surveillance in the area prior to
the appointed time. That day, someone drove a black Toyota Camry registered to
Arturo Maldonado into the Wal-Mart parking lot. Agents called the telephone
number and the person answering offered to meet in the parking lot of the nearby
McDonald’s restaurant. The agents then observed Mr. Cervantes exit the vehicle
and walk to the McDonald’s where he entered the restroom there and made a
second call.
The driver of the Camry, later identified as Jesus Garcia-Fernandez, along
with passengers Vanessa Tovar and Ms. Tovar’s two-year-old child, drove to the
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McDonald’s parking lot and picked up Mr. Cervantes. The police stopped the
vehicle a short time later and, after a canine sniff, discovered one pound of
methamphetamine along with the telephone that agents called to arrange the
transaction. According to the presentence report, Mr. Cervantes admitted that he
was delivering drugs for Mr. Maldonado on February 14 and that he had done so
on one previous occasion. He pled guilty to one count of possession of
methamphetamine with intent to distribute on February 21, 2006.
At sentencing, the parties disputed whether Mr. Cervantes qualified for the
“safety-valve” adjustment which required him to tell the authorities all that he
knew pertaining to his crime. The government contended that Mr. Cervantes was
not truthful when he was debriefed. Counsel for Mr. Cervantes then called for a
bench conference which was held off-the-record; we do not know what was said
there. After this conference, Mr. Cervantes’s counsel called for the district court
to make findings that Mr. Cervantes gave the government all the information that
he knew and that he qualified for the safety valve. Mr. Cervantes apparently did
disclose the identity of the person who was his dinner companion and hired him
to deliver the contraband. The government responded that “his responses were
not truthful in light of the investigation that took place,” and the district judge
concluded that “based on the record before me and what has been represented, I
find that you do not qualify for the final prong of the safety valve.”
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Discussion
Under the safety-valve provision, a defendant may be sentenced pursuant to
an advisory guideline range if the district court finds that (1) he does not have
more than one criminal history point; (2) he 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) he was not an
organizer, leader, manager, or supervisor of others in the offense and was not
engaged in a continuing criminal enterprise; and (5) not later than the time of the
sentencing hearing, he has truthfully provided to the Government all information
and evidence he has concerning the offense that were part of the same course of
conduct or of a common scheme or plan. 18 U.S.C. 3553(f); U.S.S.G. § 5C1.2.
The only dispute on appeal concerns the fifth prong—whether Mr. Cervantes
truthfully disclosed all information of which he was aware. Aplt. Br. at 7; Aplee.
Br. at 13.
We review a district court’s factual determination on safety-valve
eligibility for clear error, including whether a defendant has provided the
government with complete and truthful information. United States v. Altamirano-
Quintero, 511 F.3d 1087, 1098 (10th Cir. 2007). A district court’s legal
interpretation guiding its application of the safety-valve provision is reviewed de
novo. United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006). A
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defendant has the burden to prove that he or she qualifies for the safety valve by a
preponderance of the evidence. Altamirano-Quintero, 511 F.3d at 1098.
Concerning factual matters, we will reverse only where the district court’s
findings are either without support or leave us with a definite and firm conviction
that they are incorrect. United States v. Burridge, 191 F.3d 1297, 1301 (10th Cir.
1999).
The only issue raised by Mr. Cervantes is "[w]hether the district court erred
in relying solely upon the representations of the prosecutor in making its finding
that Mr. Cervantes did not qualify for safely valve consideration." Aplt. Br. at 1.
Although Mr. Cervantes, in his arguments in support of this issue, asks us to
focus on alleged failings of the district court in not requiring the government to
support its assertion that Mr. Cervantes’s disclosure was incomplete and not
making fact findings to support its conclusion that Mr. Cervantes was not eligible
for the safety-valve adjustment, we look first to whether Mr. Cervantes has
satisfied his burden of showing the district court that he has provided complete
and accurate information to the government. We conclude Mr. Cervantes has
failed to meet his burden.
Mr. Cervantes argues that he met the fifth prong of the safety valve by
providing information that “appears on its face to be honest and complete.” Id. at
5. “[T]he government must present some evidence to show that the defendant has
not been forthcoming in order to prevent application of the safety valve,” he
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contends, which it failed to do. Id. We recently rejected a similar argument. In
Altamirano-Quintero, the defendant argued that his stipulations in the plea
agreement were sufficient to satisfy the fifth prong because they were truthful.
511 F.3d at 1098. We noted that there were “obvious informational gaps” in the
facts the defendant disclosed pertaining to the acquisition or planned disposition
of contraband and the identities of other participants, however, and that in any
event he had the affirmative responsibility to show that he was truthful and
completely disclosed all he knew, or at least to explain why his disclosures were
not complete. Id. at 1098.
The government suggests that others present with Mr. Cervantes in the
vehicle were somehow involved and that Mr. Cervantes never identified the
“source” of the methamphetamine. Mr. Cervantes complains that this argument
was never factually developed and now comes too late. The short answer is that
the government did not have the burden, Mr. Cervantes did, and he failed to carry
it.
Indeed, given that Mr. Cervantes had the burden of proof, the district court
had little in his favor before it. Mr. Cervantes’s counsel reported on his client’s
disclosure; the government reported that Mr. Cervantes was not truthful in light of
its investigation and that he was fearful about disclosure. III R. at 4. Once the
government objected to his eligibility for the safety valve, it was incumbent on
Mr. Cervantes to offer proof that he “provided to the Government all information
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and evidence” he had “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);
U.S.S.G. § 5C1.2(a)(5); see Stephenson, 452 F.3d at 1179. In such a situation
(and absent a stipulation), an evidentiary hearing, on the record, is necessary for
the district court to make findings that the defendant has truthfully provided the
government all information and evidence he has concerning the offense that were
part of the same course of conduct or of a common scheme or plan.
Mr. Cervantes suggests that the facts contained in the presentence report
are sufficient for the district court to conclude he disclosed all that he knew. We
disagree. The presentence report may not be considered as “information and
evidence” provided to the government for the purposes of 18 U.S.C. § 3553(f)(5)
and U.S.S.G. § 5C1.2(a)(5) because “Government” clearly means “prosecuting
authority,” or Assistant U.S. Attorney, and not a probation officer. See 18 U.S.C.
§ 3553(f) (district court may only sentence defendant without regard to statutory
minimum sentence “after the Government has been afforded an opportunity to
make a recommendation” and defendant can only receive benefit of safety valve
after he “has truthfully provided to the Government all information and evidence”
he has “concerning the offense or offenses”).
In making this determination, we join the First, Second, Fourth, Fifth,
Seventh, and Ninth Circuits in ruling that a probation officer is not the
government for the purposes of the safety valve. “We agree with our sister
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circuits and hold that a defendant does not meet the requirements of the ‘safety
valve’ provision merely by meeting with a probation officer during the
presentence investigation.” United States v. Woods, 378 F.3d 342, 351 (4th Cir.
2004); see Emezuo v. United States, 357 F.3d 703, 706 n.2 (7th Cir. 2004);
United States v. Contreras, 136 F.3d 1245, 1246 (9th Cir. 1998); United States v.
Jimenez Martinez, 83 F.3d 488, 495-96 (1st Cir. 1996); United States v.
Rodriguez, 60 F.3d 193, 195-96 (5th Cir. 1995); see also United States v. Smith,
174 F.3d 52, 56 (2d Cir. 1999) (holding defendant did not comply with fifth prong
of safety valve when he participated in a presentence interview but did not meet
with anyone from U.S. Attorney’s office).
We have seen far too many cases where the district court is asked to grant a
safety-valve request over the objection of the prosecution based upon the
representations of counsel. Rarely will this ever be sufficient. Although
representations from counsel may be sufficient to acquaint the district court with
the underlying and uncontested facts, they are insufficient in the absence of
stipulations, particularly from the defendant’s vantage point. Credibility
determinations cannot be based upon which lawyer is more believable. Absent a
favorable recommendation from the government, a defendant needs to put on
evidence at the sentencing hearing to meet his burden of showing that he
truthfully and fully disclosed everything he knew and to rebut government claims
to the contrary. This evidence may include proffer documents, stipulated facts,
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or, in all likelihood, testimony from the defendant or a representative of the
government subject to cross-examination. Security precautions may be taken if
necessary. It is axiomatic that he who has the burden of proof must put on some
evidence at a sentencing hearing to allow the district court to find, by a
preponderance of the evidence, that he is eligible for the safety-valve adjustment.
On this minimal record, we find no reversible error.
AFFIRMED.
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