In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1384
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M IGUEL N UNEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-CR-128— Rudolph T. Randa, Judge.
A RGUED S EPTEMBER 14, 2010 — D ECIDED N OVEMBER 30, 2010
Before B AUER, F LAUM, and H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. Miguel Nunez pled guilty to
knowingly and intentionally possessing over 500 grams of
cocaine with intent to distribute. The district court sen-
tenced Nunez to sixty months imprisonment, the manda-
tory minimum sentence, after determining that Nunez
was not eligible for a “safety valve” adjustment to his
sentence, which would have permitted the court to set
a sentence below the mandatory minimum. Nunez argues
2 No. 10-1384
that the district court violated his due process right to be
sentenced on the basis of reliable information when it
considered hearsay information from two confidential
informants at sentencing. We affirm.
I. Background
An informant working under the direction and control of
law enforcement made four controlled purchases of
cocaine from Miguel Nunez between January 20, 2009, and
April 30, 2009. Three of the purchases took place either
inside or in the alley behind Nunez’s “stash house” in
Milwaukee, Wisconsin; the fourth occurred at the Omega
Restaurant in Milwaukee.
During the second purchase, which took place at Nunez’s
stash house, the informant observed Angie Schram,
Nunez’s girlfriend, inside the residence. Nunez told
the informant that he was living with Schram in a trailer
home. During the third purchase, Nunez told the infor-
mant that he was still living with Schram in her trailer
home. After the transaction, government agents observed
Nunez leave his stash house and briefly meet with Jose
Garza, one of Nunez’s co-defendants in this case, in
Nunez’s vehicle.
Nunez and the informant scheduled the fourth purchase
during a recorded telephone call on April 30, 2009. The
informant planned to purchase .5 kilograms of cocaine
from Nunez at the Omega Restaurant in Milwaukee,
Wisconsin. Agents surveilled Nunez before the meeting
and observed the following events: Nunez arrived at his
No. 10-1384 3
trailer home in Oak Creek, Wisconsin, with Garza follow-
ing in his own vehicle; both men then entered Nunez’s
residence, where they remained for approximately eight
minutes before leaving and driving towards the Omega
Restaurant in separate cars; upon arriving at the restaurant,
Nunez parked in the parking lot and Garza parked
across the street, where he had a direct view of Nunez and
the informant. The informant then met with Nunez
in Nunez’s car.
Government agents arrested Nunez and Garza at the
scene of the fourth purchase. The agents recovered .5
kilograms of cocaine from Nunez’s vehicle. Agents
searched Garza and his vehicle, discovering 1.5 grams of
cocaine, a small amount of marijuana, and $1,200 in cash.
Agents also conducted a consent search of Garza’s resi-
dence, finding two firearms and a digital scale. Finally,
agents searched Nunez’s and Schram’s trailer residence
pursuant to a search warrant, recovering three ounces of
powder cocaine, packaging materials, and two digital
scales. Agents also observed drugs and drug paraphernalia
scattered around their residence.
Nunez, Garza, and Schram were indicted on May 12,
2009. Nunez was indicted on five counts of drug-related
offenses. Count Five, the only Count relevant to this
appeal, was issued against Nunez and Garza for possessing
500 grams or more of cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18
U.S.C. § 2.
Nunez debriefed with government agents on June 25,
2009. During the debriefing, Nunez provided background
4 No. 10-1384
information about his involvement in the drug trade,
including, for example, when he first became involved in
selling drugs. He also discussed the names of individuals
from whom he obtained drugs, the prices he paid
for drugs, the amounts he dealt, and the locations at which
he stored drugs, among other information. But
Nunez refused to provide any information regarding his
customers, and he also failed to mention Garza’s and
Schram’s knowledge of and involvement in the above-
mentioned controlled purchases, other than to state that he
had given Garza some cocaine. Instead, when asked about
Garza’s presence near the scene of Nunez’s arrest, Nunez
stated that Garza was there because Nunez planned
to purchase lawn furniture from a store near the Omega
Restaurant, and Garza was going to help Nunez transport
the furniture back to Nunez’s house. Nunez stated
that Garza had nothing to do with the drug transaction for
which Nunez was arrested.
The government scheduled a second debriefing to learn
more about the charged offense. But Nunez indicated that
he was unwilling to discuss his customers and co-defen-
dants, and that he was only willing to discuss particular
suppliers. The government ended the debriefing because
it was not interested in Nunez’s proposed limits.
On August 5, 2009, government agents interviewed a
confidential informant (“CI-1”) who was housed at
Waukesha County Jail with Nunez. During his interview,
CI-1 stated that he knew Nunez and Garza through
affiliations with gangs, and that he had purchased mari-
juana from Garza on various occasions. CI-1 stated that
No. 10-1384 5
Nunez told him details about his arrest, including that it
occurred at the Omega Restaurant. CI-1 also indicated that
Nunez told him that Garza was aware of the drug transac-
tion for which Nunez was arrested, and that Garza
was across the street from the site of the transaction
to serve as a lookout. CI-1 provided government agents
with various other details that Nunez told him about
the case, including that Garza had roughly one gram
of cocaine on him when he was arrested; that the police
seized two firearms while searching Garza’s residence;
that the police searched Nunez’s residence and recovered
three ounces of cocaine; that Nunez had a trailer home
that was different from his stash house; that Nunez spoke
to a police officer on one occasion, but the officer to
whom he spoke was not the officer who arrested him;
and that Schram knew that Nunez was selling cocaine
and that he kept cocaine at their residence. CI-1 stated
that Nunez told him that Nunez and Garza were opti-
mistic that they would receive the money from the fourth
controlled purchase and that they used the same cocaine
source. CI-1 also stated that Nunez told him that
Nunez lied about Garza’s involvement in the offenses
at issue to government agents during his debriefing
because “there was no need for both of them to go to jail,”
and that he was not going to tell the police about his
drug source because he was going to need the source
again when he got out of jail. CI-1 also explained that
Nunez admitted to him that he intended to lie to govern-
ment agents about Garza’s and Schram’s participation in
the cocaine transactions to make it seem like they were not
involved.
6 No. 10-1384
On October 27, 2009, government agents interviewed a
second confidential informant (“CI-2”). Although CI-2 did
not know Nunez or Garza, he identified Nunez from
a photograph as an individual with whom he had recently
been housed at Waukesha County Jail. CI-2 stated that
he saw a person who was also housed in jail with him
conversing with Nunez while in jail. It is unclear
whether CI-2 stated that the person he observed talking to
Nunez was CI-1; the notes documenting the government’s
interview with CI-2 redact both informants’ names. CI-
2 stated that he did not hear most of the conversation
between the person and Nunez, but that he knew that
Nunez discussed his arrest related to a federal cocaine
case.
Nunez pled guilty to Count Five in October 2009. Prior
to sentencing, the United States Probation Office (“USPO”)
interviewed Nunez for a Presentence Investigation Report
(“PSR”). The PSR found that Nunez was eligible for
a safety valve adjustment pursuant to 18 U.S.C. § 3553(f),
which permits the district court to impose a sentence below
the mandatory minimum.
The government filed a written objection with the USPO
via email on January 17, 2010, asserting that Nunez did not
satisfy the fifth requirement of safety valve eligibility,
which requires that defendants “truthfully provide[ ] to
the Government all information and evidence the defen-
dant 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). The government argued
that Nunez was not eligible for a safety valve designation
No. 10-1384 7
because he limited the scope of his debriefing, and thus
failed to provide full and complete information about his
and his co-defendants’ relevant conduct. In particular, the
government asserted that Nunez attempted to falsely
exculpate Garza, and that he failed to discuss Schram’s
involvement in the offense. To support its objection, the
government attached to its email notes from Nunez’s
first debriefing, and from its interviews with CI-1 and CI-2.
The government did not call CI-1 to testify at Nunez’s
sentencing because CI-1 received death threats from
members of Nunez’s gang.
Nunez filed a response to the government’s objection,
arguing that hearsay evidence may be considered at
sentencing only if it is reliable. Nunez argued that state-
ments made by an unidentified confidential informant
cannot be deemed reliable or accurate unless the govern-
ment could show good cause for not disclosing CI-1’s
identity, and that CI-1’s statement was sufficiently corrobo-
rated. Nunez asserted that the government failed
to adequately demonstrate good cause or sufficient corrob-
oration. Accordingly, he argued that he should remain
eligible for the safety valve designation since the govern-
ment’s objection rested upon unreliable and unverifiable
information obtained from a confidential informant.
The district court held a sentencing hearing on February
5, 2010, at which both Nunez and the government pre-
sented oral arguments. The district court concluded that
Nunez was not eligible for a safety valve adjustment. It
sentenced Nunez to sixty months imprisonment on Count
Five, the mandatory minimum. The court also sentenced
8 No. 10-1384
Nunez to four years of supervised release, and ordered
him to pay $4,500 in restitution for the buy money ex-
pended in the case and a $100 special assessment.
Nunez timely appeals. He also moves to strike portions
of the government’s opposition brief that reference
facts that he alleges are not part of the record on appeal.
II. Analysis
A. The Record On Appeal
Nunez moves to strike three portions of the govern-
ment’s opposition brief, arguing that the government
violated Federal Rule of Appellate Procedure 10(a) by
referencing facts that are not a part of the record on
appeal. First, Nunez argues that particular facts
the government references in the first two sentences of
the second full paragraph on page six, and in the third
sentence of the second full paragraph on page eighteen
do not appear in the sources to which the government
cites as support. Second, Nunez argues that the govern-
ment’s reference to its proffer at sentencing regarding
Nunez’s second debriefing with law enforcement in
the first full paragraph of page ten is improper. Nunez
concedes that the proffer itself is in the sentencing tran-
script. But he argues that the government never provided
him with notes from the second debriefing, and that
the content of the second debriefing was never presented
to the district court in any form other than the govern-
ment’s proffer at the sentencing hearing.
Rule 10(a) provides that “[t]he following items constitute
the record on appeal: (1) the original papers and exhibits
No. 10-1384 9
filed in the district court; (2) the transcript of proceedings,
if any; and (3) a certified copy of the docket entries pre-
pared by the district clerk.” FED. R. A PP. P. 10(a); see also
7th Cir. R. 10; Henn v. Nat’l Geographic Soc’y, 819 F.2d
824, 831 (7th Cir. 1987). The government concedes that it
cited to the wrong source on pages six and eighteen of
its opposition brief; it erroneously cited to the plea agree-
ment, while the challenged assertions on pages six
and eighteen of its brief appear in an affidavit attached
to the criminal complaint. In addition, the government
correctly points out that each of the challenged assertions
on page ten of its opposition brief regarding Nunez’s
second debriefing was presented to the district court at the
sentencing hearing, and thus they appear on the transcript
from that hearing. Accordingly, we deny Nunez’s motion
to strike; the portions of the government’s brief that Nunez
seeks to strike are all included in the record on appeal
pursuant to Federal Rule of Appellate Procedure 10(a).
B. Safety Valve Eligibility
Nunez argues that the district court violated his due
process right by basing its sentencing decision on unreli-
able information. He argues that the district court improp-
erly relied upon CI-1’s out-of-court statement when it
found Nunez ineligible for a safety valve adjustment.
This case implicates three standards of review. First, we
review for clear error a district court’s denial of a safety
valve departure. United States v. Corson, 579 F.3d 804,
813 (7th Cir. 2009). “[A] sentencing court clearly errs
by considering hearsay evidence only if the evidence
10 No. 10-1384
was devoid of any indicia of reliability.” United States v.
Sanchez, 507 F.3d 532, 538 (7th Cir. 2007); see also United
States v. Hollins, 498 F.3d 622, 629 (7th Cir. 2007) (“Clear
error will be found when, on review of the entire evidence,
we are left with the definite and firm conviction that
a mistake has been made.”). Second, we review for abuse
of discretion a district court’s determination that a confi-
dential informant’s hearsay statement is sufficiently
reliable. United States v. Mays, 593 F.3d 603, 608 (7th Cir.
2010). Finally, we review de novo a district court’s sen-
tencing procedures. Corson, 579 F.3d at 813.
Title 18, Section 3553(f) permits courts to impose a
sentence below the mandatory minimum to defendants
who meet five requirements. The fifth requirement pro-
vides that defendants must “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 plainly broad language
suggests that any and all information that the defendant
possesses concerning the offense must be provided to the
Government.” United States v. Montes, 381 F.3d 631, 636
(7th Cir. 2004) (internal quotation marks and citation
omitted); see also United States v. Ponce, 358 F.3d 466,
468 (7th Cir. 2004) (“[The fifth criterion of § 3553(f)]
requires a defendant to make a good-faith attempt to
cooperate with the authorities and volunteer all
the relevant information he has concerning his offense.”
(citations omitted)); United States v. Arrington, 73 F.3d 144,
149 (7th Cir. 1996) (“[Section] 3553(f) states that a defen-
dant must disclose ‘all information’ concerning the course
No. 10-1384 11
of conduct-not simply the facts that form the basis for the
criminal charge”). Even if the government did not specifi-
cally ask a defendant to provide particular information, it
is the defendant’s duty to satisfy the requirements in
§ 3553(f), and the defendant must at least offer the informa-
tion he has. See Arrington, 73 F.3d at 148; see also Ponce,
358 F.3d at 468; United States v. Ramirez, 94 F.3d 1095, 1101
(7th Cir. 1996). The sentencing guidelines explain that
“offense or offenses that were part of the same course of
conduct or of a common scheme or plan” includes
“the offense of conviction and all relevant conduct.”
U.S.S.G. § 5C1.2, cmt. n.3. In order to qualify for the safety
valve adjustment, the defendant bears the burden of
proving each of the five requirements by a preponderance
of evidence. Montes, 381 F.3d at 634. A defendant
“cannot meet this burden if the government challenged
the truthfulness, accuracy, or completeness of his state-
ments and he produced nothing to persuade the district
court that his disclosures were truthful and complete.”
United States v. Martinez, 301 F.3d 860, 866 (7th Cir.
2002). The district court concluded that Nunez did not
satisfy the fifth requirement for safety valve eligibility.
Nunez argues that the district court based its conclusion
on unreliable information.
Defendants have a due process right to be sentenced on
the basis of reliable information. United States v. Lanterman,
76 F.3d 158, 160-61 (7th Cir. 1996). Defendants who chal-
lenge their sentence on the ground that the sentencing
court considered unreliable information must demonstrate
both that unreliable information was before the sentencing
12 No. 10-1384
court, and that the sentencing court relied on that informa-
tion in reaching its sentencing decision. See Lechner v.
Frank, 341 F.3d 635, 639 (7th Cir. 2003) (citing United States
v. Tucker, 404 U.S. 443 (1972)); see also United States
v. Hankton, 432 F.3d 779, 790 (7th Cir. 2005). But
the evidentiary standards are relaxed at sentencing; judges
can consider a largely unlimited scope of evidence,
“as long as [the evidence] has ‘sufficient indicia of reliabil-
ity to support its probable accuracy.’ ” United States
v. Maiden, 606 F.3d 337, 339 (7th Cir. 2010) (quoting
Hankton, 432 F.3d at 790); see also Mays, 593 F.3d at 608;
United States v. Johnson, 489 F.3d 794, 796-97 (7th Cir. 2007).
Accordingly, we routinely hold that “hearsay is permit-
ted at sentencing if it is reliable[, and that] reliability may
be established by corroborating evidence.” United States
v. Martinez, 289 F.3d 1023, 1029 (7th Cir. 2002).
We have held that “[a] sentencing court demonstrates
actual reliance on misinformation when the court gives
‘explicit attention’ to it, ‘found[s]’ its sentence ‘at least in
part’ on it, or gives ‘specific consideration’ to the informa-
tion before imposing sentence.” Lechner, 341 F.3d at
639 (quoting United States v. Tucker, 404 U.S. 443 (1972));
see also United States v. Salinas, 365 F.3d 582, 586-87 (7th
Cir. 2004). The district court explained its decision that
Nunez was ineligible for a safety valve adjustment in three
forms. First, during the sentencing hearing on February
5, 2010, the district court stated:
Well, the Court has heard the arguments now and
the Court has read the submissions. The Court has
reviewed the authority that is relied upon by the
No. 10-1384 13
defense in the Cammisano case[, 917 F.2d 1057
(8th Cir. 1990)]. It is an Eighth Circuit case. The
Court is not bound by that precedent. But having
read all of this -- and the Court will make these as
part of the Court’s reasoning in the record, obvi-
ously -- the Court doesn’t think and feel that the
Defendant has been fully cooperative, truthful.
And, in fact, the sense of the Court is that it is just
the opposite in some of these encounters. And that
is all supported by the fact that . . . there was [sic]
limitations set upon this discussion of relevant
conduct here. So the Court is . . . going to find that
the Defendant is not eligible for the safety valve.
Second, in its Statement of Reasons, the district court
explained that Nunez was ineligible for a safety valve
adjustment because he did not meet the fifth requirement
in § 3553(f) of providing truthful information. Third, the
minutes from the sentencing hearing state: “Court does not
think the defendant has been fully cooperative or truthful.
In fact, it’s just the opposite. Court finds the defendant
is not eligible for the safety valve.”
The government urged the district court to conclude that
Nunez failed to satisfy the fifth requirement for safety
valve eligibility based on two sources of evidence. First,
the government argued that Nunez placed limits on the
scope of his second debriefing, indicating that he failed
to provide the government with all of the information he
had concerning the charged offense. Second, the govern-
ment argued that CI-1’s statement demonstrated both
that Nunez lied, and that he failed to provide the govern-
14 No. 10-1384
ment with enough information during his first debriefing
to satisfy the fifth safety valve requirement. Based on
the government’s arguments and the district court’s three
explanations above, the district court arguably relied
on both pieces of evidence. Accordingly, we discuss each
in turn. We conclude by addressing Nunez’s remaining
arguments on appeal.
1. The Second Debriefing
The government informed the district court that Nunez
placed limits on the topics he was willing to discuss during
his second debriefing: Nunez was unwilling to discuss
his customers and his co-defendants, and he was only
willing to discuss particular suppliers.
Nunez does not challenge the reliability of the govern-
ment’s proffer at the sentencing hearing concerning the
limits he placed on his second debriefing. Instead, he
argues that the district court must have relied solely on CI-
1’s statements when it concluded that Nunez was untruth-
ful and unwilling to provide the government with
all information he had concerning the charged offense.
At the sentencing hearing, the district court expressly
indicated that it considered the limits Nunez placed on
his second debriefing. It, thus, clearly relied, at least in
part, on the limits Nunez placed on his second debriefing
in reaching its sentencing decision. See Lechner, 341
F.3d at 639.
The limits Nunez placed on his second debriefing suf-
fice to affirm the district court’s decision that Nunez was
No. 10-1384 15
ineligible for a safety valve adjustment: They demonstrate
that Nunez failed to provide the government with “all
information 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);
see Montes, 381 F.3d at 634-37; Ponce, 358 F.3d at 468-
69; United States v. Alvarado, 326 F.3d 857, 860-62 (7th
Cir. 2003); Arrington, 73 F.3d at 148-49; Ramirez, 94 F.3d
at 1101. The district court did not clearly err when it
concluded that Nunez was ineligible for a safety
valve adjustment based, at least in part, on the limits
he placed on his second debriefing. In fact, we would
affirm the district court if it relied solely on the limits
Nunez placed on his second debriefing.
2. CI-1's Statement
Nunez argues that the district court erred primarily in
three ways when it considered CI-1’s statements at sen-
tencing. First, he argues that CI-1’s statements were
unreliable, and thus that the district court abused
its discretion when it held otherwise. Next, Nunez argues
that the district court failed to undertake a sufficiently
searching inquiry to ensure that CI-1’s statement was
reliable. Finally, he argues that the district court abused its
discretion in concluding that CI-1’s statement was reliable
because it failed to meaningfully exercise its discretion.
We disagree.
Nunez argues that CI-1’s statements were unreliable. He
posits that reliability can be established by disclosing CI-1’s
identity, corroborating CI-1’s statements with other
16 No. 10-1384
evidence, allowing the cross-examination of CI-1, or
evaluating whether CI-1’s statements are consistent with
other statements or evidence in the case. Nunez argues that
the government failed to establish CI-1’s reliability in any
of these four ways.
Contrary to Nunez’s argument, however, evidence on the
record corroborates significant portions of CI-1’s statement.
For example, the plea agreement corroborates the exact
weight of cocaine that CI-1 stated was found at Nunez’s
residence, the location at which Nunez was arrested, and
that Garza was parked across the street from the Omega
Restaurant during the fourth controlled purchase. The
affidavit submitted in support of the criminal complaint
corroborates CI-1’s statement regarding the approximate
weight of cocaine found on Garza’s person at the time of
his arrest. Portions of CI-1’s statement regarding
Schram’s awareness that Nunez was selling cocaine,
which Nunez neglected to mention during his debriefings,
and Garza’s awareness of and involvement in the charged
offense, which Nunez allegedly lied about during
his debriefings, are also corroborated by evidence on the
record. For example, CI-1’s statement that Schram
knew that Nunez was selling cocaine is corroborated by
evidence indicating that Schram was present at one of
the controlled purchases, that Nunez lived with Schram,
and that agents found cocaine, packaging materials, and
two digital scales at the residence Schram and Nunez
shared, and drug paraphernalia scattered inside. Also, CI-
1’s statement that Garza was acting as a lookout during
the drug purchase at the Omega Restaurant, which indi-
cates that Nunez lied to the government when he stated
No. 10-1384 17
that Garza was at the scene solely to help transport lawn
furniture, is corroborated by the fact that Garza parked his
car across the street from the parking lot in which Nunez
met with the government informant to transfer the drugs,
in a place where he had a direct view of Nunez. At least
the portions of CI-1’s statement that were corroborated had
“sufficient indicia of reliability to support its probable
accuracy.” Hankton, 432 F.3d at 790; see also Mays, 593
F.3d at 608-09; United States v. Are, 590 F.3d 499, 521-23 (7th
Cir. 2009); Martinez, 289 F.3d at 1029; United States
v. Morrison, 207 F.3d 962, 967-69 (7th Cir. 2000). Arguably,
then, the district court did not err by relying on CI-1’s
statement.
But even if the district court erred, the error was harm-
less. See Are, 590 F.3d at 523. The limitations Nunez placed
on his second debriefing suffice to affirm the district
court’s conclusion that Nunez was not eligible for a safety
valve adjustment. See, e.g., 18 U.S.C. § 3553(f)(5); Montes,
381 F.3d 631, 634-37. Further, relying on CI-1’s statement
could not have affected any aspect of Nunez’s sentence
other than his safety valve eligibility: He received the
mandatory minimum, and he would not have received a
different sentence if the district court had not considered
CI-1’s statement. Thus, any error in relying on CI-1’s
statements was harmless. See Are, 590 F.3d at 523.
Nunez’s argument that the district court failed to under-
take a sufficiently searching inquiry into the accuracy of
CI-1’s statements is similarly unavailing. Nunez notes that
we have reversed and remanded for a more searching
inquiry when a sentencing court relied on a particular
18 No. 10-1384
piece of evidence without providing an explanation for
why it credited that piece of evidence over another,
inconsistent piece of evidence. But the line of cases to
which Nunez cites primarily involves contradictory
statements by one witness regarding drug quantities,
offered to assist in a relevant conduct calculation at
sentencing. See United States v. Galbraith, 200
F.3d 1006, 1012-13 (7th Cir. 2000); United States v.
McEntire, 153 F.3d 424, 435-37 (7th Cir. 1998); United
States v. Beler, 20 F.3d 1428, 1433-35 (7th Cir. 1994). But
see United States v. Zehm, 217 F.3d 506, 514-15 (7th Cir.
2000) (comparing a witness’s statement to statements
from other witnesses and the defendant’s version of the
events). This case is distinct. Also, Nunez does not
argue that CI-1’s statements are internally inconsistent;
he argues merely that CI-1’s statements contradict
Nunez’s. We frequently affirm district courts’ decisions
to credit hearsay evidence at sentencing when the hearsay
is corroborated by evidence on the record. See, e.g.,
Hankton, 432 F.3d at 791-93; Morrison, 207 F.3d at 968-69;
United States v. Corbin, 998 F.2d 1377, 1386-87 (7th
Cir. 1993). The district court did not err in relying on CI-
1’s statement, even if it credited CI-1’s statement
over Nunez’s assertions in doing so. Again, though, even if
this was error, the error was harmless. See Are, 590 F.3d
at 523.
Nunez’s next argument, that the district court abused
its discretion because it did not consider and weigh the
factors relevant to evaluating the reliability of CI-1’s
reliability, is also unpersuasive. We have explained
that “[a]n exercise of discretion, in sentencing as in other
No. 10-1384 19
settings, cannot be affirmed when the judge fails to con-
sider and weigh the factors that bear on its exercise.”
United States v. Roberson, 474 F.3d 432, 436 (7th Cir. 2007).
But we must merely “satisfy ourselves, before we can
conclude that the judge did not abuse his discretion, that
he exercised his discretion, that is, that he considered
the factors relevant to that exercise.” Id. (quoting United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir.
2005)). Although the district court did not provide
a detailed analysis of precisely why it decided to rely on
CI-1’s statement, it explained that it considered all of
the parties’ arguments on the issue, which included
arguments about the reliability of CI-1’s statement. Under-
standably, a party may desire a more thorough explana-
tion, but the district court judge appears to have exercised
his discretion. See Roberson, 474 F.3d at 436; Cunningham,
429 F.3d at 679. As explained above, however, even if
the district court judge abused his discretion, the error
was harmless. See Are, 590 F.3d at 523.
Finally, Nunez argues that CI-1 was unreliable because
he had a motive to lie. But this assertion is wholly specula-
tive and contrary to case law. See Galbraith, 200 F.3d at 1012
(writing that “the testimony of just one witness, even
a potentially biased witness, is sufficient to support
a finding of fact” at sentencing, and that “the trial court
is entitled to credit testimony that is totally uncorroborated
and comes from an admitted liar, convicted felon, large
scale drug-dealing, paid government informant” (internal
quotation marks and citations omitted)).
20 No. 10-1384
3. Nunez’s Remaining Arguments on Appeal
Nunez asserts two other arguments on appeal. First,
he argues that the information he provided to the govern-
ment during his first debriefing satisfied the fifth require-
ment in § 3553(f). Nunez provided detailed information
related to the charged offense. But the limits he placed on
his second debriefing, without more, warranted concluding
that Nunez was ineligible for a safety valve adjustment.
See 18 U.S.C. § 3553(f)(5); Montes, 381 F.3d at 634-37.
Second, Nunez argues that the fact that the USPO
originally found Nunez eligible for a safety valve ad-
justment when drafting the PSR facially indicates that
he met his burden of showing eligibility for the safety
valve adjustment. Nunez argues that since he met
his burden, the government should have faced a burden
of production when calling the information in the PSR into
question, and that the burden should have shifted back
to the defendant to convince the court that the facts
presented were actually true only if the government met
its burden of production. Nunez correctly acknowledges
that Seventh Circuit case law provides for burden-shifting
when a defendant challenges information in a PSR during
sentencing. See, e.g., United States v. Moreno-Padilla, 602
F.3d 802, 808-09 (7th Cir. 2010). He argues that fundamen-
tal fairness supports applying this doctrine when the
government challenges information in a PSR. While
a government’s challenge to a PSR that fails to reference
any evidence on the record and is based on pure specula-
tion may not require a defendant to produce more evi-
dence to support the PSR’s finding, we have not expressly
No. 10-1384 21
adopted Nunez’s proposed burden-shifting framework.
Instead, we maintain that the defendant bears the burden
of proving entitlement to a safety valve adjustment, Mon-
tes, 381 F.3d at 634, and that a defendant cannot meet his
burden “if the government challenged the truthfulness,
accuracy, or completeness of his statements and he pro-
duced nothing to persuade the district court that his
disclosures were truthful and complete.” Martinez, 301 F.3d
at 866. Even if we required the government to produce
evidence that Nunez failed to meet the fifth requirement in
§ 3553(f), it effectively did so when it discussed Nunez’s
second debriefing at the sentencing hearing, and when it
presented CI-1’s statement to the district court. The district
court correctly concluded that Nunez failed to meet the
fifth requirement in § 3553(f).
III. Conclusion
We A FFIRM Nunez’s sentence.
11-30-10