United States Court of Appeals
For the First Circuit
No. 01-2431
UNITED STATES OF AMERICA,
Appellee,
v.
ILLIO MATOS,
Defendant, Appellant.
No. 01-2432
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS OVALLES-TORRES,
Defendant, Appellant.
______________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Luis Rafael Rivera for appellant Matos.
Rafael F. Castro Lang for appellant Ovalles-Torres.
Aixa Maldonado-Quiñones, Assistant United States Attorney,
with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-
Pabón, Assistant United States Attorney, were on brief, for
appellee.
May 7, 2003
SELYA, Circuit Judge. Congress enacted the so-called
"safety valve," 18 U.S.C. § 3553(f), as a vehicle for shielding
certain first-time offenders from the draconian effects of
mandatory minimum sentences. But the safety valve is not available
upon demand; to qualify for it, a defendant must make a
multifaceted showing (including a showing that he has disclosed to
the government, truthfully and completely, all relevant information
concerning the offense of conviction and any related offenses).
Defendants-appellants Illio Matos and Carlos Ovalles-
Torres attempted to make that showing.1 The district court
methodically weighed their proffers and determined that they were
ineligible for relief under the safety valve. United States v.
Ovalles-Torres, 161 F. Supp. 2d 55, 58-60 (D.P.R. 2001). Having
reviewed the record with care, we find no clear error in the
district court's determination. We therefore affirm the stated
terms of imprisonment.
There is, however, a secondary issue. The lower court
also ordered each appellant to serve a ten-year term of supervised
release following the end of his incarceration. The appellants
challenge both the legality of the elongated supervised release
1
The record reveals several inconsistencies as to
nomenclature. For example, Matos's first name is variously spelled
"Illio" or "Ilio," and the surname of his codefendant is variously
spelled "Ovalles-Torres" and "Ovalle-Torres." In each instance, we
have adopted what appears to us, all things considered, to be the
most likely spelling.
-3-
terms and the manner in which they were imposed. On this issue, we
conclude that ten-year terms of supervised release were within the
court's authority. Nevertheless, we agree with the parties that a
procedural irregularity occurred: in imposing the ten-year terms
of supervision, the court made what amounted to an upward departure
without giving the appellants adequate notice of its intentions.
Consequently, we vacate that aspect of the sentences and remand for
further proceedings consistent with this opinion.
I. BACKGROUND
The second superseding indictment in this case implicated
the appellants, along with others, in an elaborate drug-smuggling
and drug-trafficking operation. On January 25, 2000, the
appellants pleaded guilty to a single count of that indictment,
thus admitting that they had conspired with others to possess and
distribute large quantities of cocaine. See 21 U.S.C. §§
841(a)(1), 846. Each appellant entered into a written plea
agreement. These agreements contemplated the possibility — but
only the possibility — that the district court might impose a
sentence without regard to any statutory minimum "if the Court
finds that the defendant meets the criteria established in [the
safety valve statute, 18 U.S.C. § 3553(f)]."
This brings us to the statute. With its enactment,
Congress specifically excepted from statutory minimum sentences any
defendant who meets the following criteria:
-4-
(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) (2000).
Against this statutory backdrop, we return to the case at
hand. Law enforcement agents debriefed the appellants, one by one,
in order to gain whatever information they might possess concerning
the offense of conviction — the conspiracy — or any other offenses
that were part of the same scheme or course of conduct. See id. §
3553(f)(5). After comparing the appellants' stories with
-5-
information gleaned elsewhere, the interrogators concluded that the
appellants had been neither completely truthful nor especially
forthcoming during their debriefings. As a result, the government
promptly notified the appellants that it intended to oppose their
attempt to invoke the safety valve.
Although the appellants have separate attorneys on
appeal, both of them were represented below by the same counsel.
That lawyer pressed the government to disclose the basis for its
belief that the appellants had not fully complied with the statute,
but the government refused to elaborate. It likewise refused a
request that it conduct another round of debriefings. Instead, the
prosecutors noted that it was a defendant's burden to prove his
eligibility for the safety valve; warned that, if nothing more was
forthcoming, they would present evidence at the appropriate time
and place to rebut any claim of eligibility; and reminded defense
counsel that the sentencing court would make the ultimate
eligibility determination. The government added that a defendant
knows when he has withheld information during a debriefing, and
that such a defendant is free to augment his disclosures at any
time prior to the sentencing hearing. Finally, the prosecutors
took the position that the law did not require them to make agents
available to extract such additional information by question and
answer.
-6-
The district court subdivided the sentencing hearings
into two parts. It began with separate hearings for each appellant
on the question of safety valve eligibility. After holding
evidentiary hearings on August 14 and September 14, 2000 — the
first for Matos and the second for Ovalles-Torres — the court found
that neither man had proven that he had timely furnished the
government with truthful and complete information. Ovalles-Torres,
161 F. Supp. 2d at 58-60. These findings, which we discuss infra,
precluded access to the safety valve.
On September 5, 2001, the court convened a joint hearing
dedicated to the imposition of sentences. Each appellant
stipulated that he bore responsibility for at least five but less
than fifteen kilograms of cocaine. The government and the district
court accepted the stipulations, which triggered ten-year mandatory
minimum sentences. See 21 U.S.C. § 841(b)(1)(B). The court
thereupon sentenced each appellant to an incarcerative term of that
duration, to be followed by ten years of supervised release. These
appeals ensued.
II. ANALYSIS
The appellants jointly maintain that the district court
committed no fewer than three significant errors. The first
assignment of error challenges the court's determination that they
were ineligible for the safety valve. The second involves a claim
that the appellants did not receive the process that was due. The
-7-
third questions the imposition of ten-year periods of supervised
release.2 For efficiency of analysis, we address each of these
claims of error separately.
A. Safety Valve Eligibility.
In the court below, the appellants asserted that they had
truthfully and completely answered all the questions that the
government had asked, and, therefore, that the burden had shifted
to the government to show that they were ineligible for the safety
valve. The appellants added that if the government believed that
either of them was withholding information, it had a duty to come
forward with the basis for that belief so that the affected
defendant would have a fair chance to explain away the alleged
omission. The district court rejected this contention as turning
the statute upside down. The court stated in pertinent part:
The statute says that the defendant has to
come forth and truthfully testify as to
everything he knows. Now if he is going to
sit back and say "Well, they didn't ask me
that," then that is not what the statute
requires. The statute requires an affirmative
step on his part to come in and say, "I want
to be debriefed because I want to tell you
everything that I know." . . . [T]he
2
In addition, one appellant — Ovalles-Torres — raises a
transparently meritless Sixth Amendment claim. This claim is
premised on the assertion that the district court unlawfully
excluded him from the initial phase of his own sentencing hearing.
That premise is belied by the record: the court excluded Ovalles-
Torres from the initial phase of his codefendant's sentencing
hearing. This sequestration was well within the court's
discretion. See Geders v. United States, 425 U.S. 80, 87 (1976);
Fed. R. Evid. 615.
-8-
affirmative steps have to be taken by the
defendant if he wants to have an opportunity
to qualify for [the safety valve].
Ovalles-Torres, 161 F. Supp. 2d at 58-59 (quoting court's comments
during initial phase of sentencing hearing).
In assaying a sentencing court's determination that a
defendant failed to qualify for the safety valve, the standard of
appellate review varies according to the foundation upon which that
determination is based. See United States v. Marquez, 280 F.3d 19,
22 (1st Cir. 2002). To the extent that the determination rests on
conclusions of law, appellate review is plenary. Id. To the
extent, however, that the determination hinges on differential
factfinding, appellate review is for clear error. Id. The
district court's determinations in this case are challenged both on
legal and factual grounds, so both standards are in play.
It is too elementary to warrant citation of authority
that we must test the district court's determination of safety
valve ineligibility against the five requirements limned in section
3553(f). The parties agree that the first four criteria have been
satisfied. The battleground, then, is the fifth. As to that
requirement, we have made it pellucid that nothing short of
truthful and complete disclosure will suffice (and, therefore, that
truthful and complete disclosure is a condition precedent to relief
under the safety valve). See, e.g., Marquez, 280 F.3d at 24;
United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996).
-9-
A defendant bears the burden of showing that he made
appropriate and timely disclosures to the government. Marquez, 280
F.3d at 25; United States v. Richardson, 225 F.3d 46, 53 (1st Cir.
2000). This burden obliges the defendant to prove to the court
that the information he supplied in the relevant time frame was
both truthful and complete. Marquez, 280 F.3d at 25.
Consequently, a safety valve debriefing is a situation that cries
out for straight talk; equivocations, half-truths, and veiled
allusions will not do. After all, Congress's evident purpose in
creating the safety valve was "to mitigate the harsh effect of
mandatory minimum sentences on certain first offenders who played
supporting roles in drug-trafficking schemes." United States v.
Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000) (emphasis
supplied). The only intended beneficiaries of Congress's largesse
are those who have satisfied the five statutory criteria. United
States v. Miranda-Santiago, 96 F.3d 517, 528 (1st Cir. 1996).
Others simply do not qualify. Id.
We afford de novo review to the district court's
interpretation of a statute. Marquez, 280 F.3d at 22. In this
instance, the legal standard to which the district court held the
appellants comports with the body of law elucidated above. See
Ovalles-Torres, 161 F. Supp. 2d at 57-58. Thus, the appellants'
initial line of attack gains them no ground.
-10-
The appellants have a series of fallback positions.
First, they insist that they filled any gaps in their original
disclosures by their testimony during the aforementioned hearings.
Generally speaking, this is the wrong focal point. The governing
statute, 18 U.S.C. § 3553(f)(5), requires truthful and complete
disclosures to be made "not later than the time of the sentencing
hearing." This means that the deadline for making truthful and
complete disclosure is the moment that the sentencing hearing
starts.3 See United States v. Marin, 144 F.3d 1085, 1091-92 (7th
Cir. 1998); United States v. Long, 77 F.3d 1060, 1062 (8th Cir.
1996) (per curiam).
This is a sensible — and wholly proper — reading of the
statute. In the first place, section 3553(f)(5) requires
disclosure to the government, not the court. In the second place,
we have noted that Congress "aim[ed] its [safety valve] leniency at
. . . defendants who did their best to cooperate to the extent of
making full disclosure." Montanez, 82 F.3d at 522 (emphasis in
3
Here, however, the parties bypassed this principle. The
prosecutor informed the court that he had advised defense counsel
that the appellants would be allowed to add additional information
to their initial safety valve disclosures in writing prior to
sentencing or in testimony at the sentencing hearing itself. Both
men in fact testified at the start of their respective sentencing
hearings and made additional disclosures. It is unclear whether
the sentencing court shared the government's view of the proper
time line, but in the peculiar circumstances of this case and in an
abundance of caution, we consider this testimony as part of the
appellants' safety valve proffers. In the final analysis, it makes
no difference.
-11-
original). To engage in carefully guarded comments during a
debriefing and then attempt to recoup lost ground after
commencement of the sentencing hearing is manipulation, not
cooperation. See Marin, 144 F.3d at 1092.
Retreating a step further, the appellants challenge the
district court's findings of fact as clearly erroneous. This
challenge lacks force.
The clear error standard is exceedingly deferential.
Marquez, 280 F.3d at 26. Under it, an appellate court ought not to
disturb either findings of fact or conclusions drawn therefrom
unless the whole of the record compels a strong, unyielding belief
that a mistake has been made. Cumpiano v. Banco Santander, 902
F.2d 148, 152 (1st Cir. 1990). The process of evaluating witness
testimony typically involves fact-sensitive judgments and
credibility calls that fit comfortably within the margins of the
clear error standard. Marquez, 280 F.3d at 26.
In this case, the sentencing court carefully examined the
witnesses' testimony, listened to arguments involving credibility,
and based its denial of the safety valve on specific factual
findings. See Ovalles-Torres, 161 F. Supp. 2d at 59-60. In
resolving the issue of whether truthful and complete disclosure had
been made adversely to both appellants, the court cited book and
verse. It gave examples of the appellants' untruthfulness in the
course of their safety valve debriefings and recounted several
-12-
instances in which the appellants' statements were incomplete.
See, e.g., id. Although another trier might not have reached the
same conclusion, our review of the record confirms the plausibility
of these findings as to both appellants (and, thus, confirms the
absence of clear error).
We add a few words in the interest of assuring our own
effectiveness in reviewing the fairness of this kind of decision.
Our obligation to accord substantial deference to the sentencing
court is best carried out — particularly in close cases — if that
court shares its basis for concluding that the disclosure efforts
fell short. From its written decision, we can readily understand
the court's failure to be impressed by the record in Ovalles-
Torres's case. For example, his denial (contradicted by a
government agent) that he had met with the ringleader of the
conspiracy, his failure to identify codefendant Matos in a critical
meeting at a restaurant, and his failure to inform the government
that he had participated in an additional narcotics load are
telling indicia of the quality of his disclosures. Thus, we descry
no error as to the district court's refusal to grant Ovalles-Torres
the benefit of the safety valve.
In contrast, the court's findings as to Matos's
untruthfulness are much less impressive. The court found that
Matos had falsely denied communicating with a coconspirator after
the winding-up of conspiracy; that he had failed to reveal a
-13-
telephone conversation with a coconspirator in which he was asked
if he knew "that the dogs have that" and replied that they had
nothing to worry about because they were not involved in that
situation; and that he had falsely denied that the same
coconspirator had initially recommended him to the leader of the
enterprise. These findings, collectively, do not weigh heavily.
Nevertheless, other evidence that can be gleaned from the record
indicates that Matos was not entirely forthcoming — and this
evidence (e.g., his contradictory testimony about the drug-carrying
capacity of his boat, misleading information anent the function of
a satellite telephone, and nondisclosure of his participation in
another drug smuggle) seems of greater significance than the few
examples cited in the district court's written decision. Although
the question is closer as to Matos, we find, in the end, that the
record contains adequate support for the lower court's denial of
the safety valve.
The appellants, ably represented on appeal, attempt to
explain away their flawed disclosures. These carefully constructed
explanations are marginally plausible but ultimately unpersuasive.
The default rule is that when more than one sensible interpretation
of a particular set of circumstances can supportably be drawn, a
sentencing court's decision to credit one alternative and reject
another cannot be deemed clearly erroneous. United States v. Ruiz,
905 F.2d 499, 508 (1st Cir. 1990).
-14-
The appellants persist. They next suggest that, even if
their testimony was inconsistent or fragmentary in some respects,
they nonetheless made a good-faith effort to answer the questions
asked by the government agents. They add that, for the most part,
their contradictions and omissions related to peripheral matters,
and thus should not deprive them of the benefits of the safety
valve.
We considered and rejected a similar argument in Marquez,
noting that the "safety valve provision explicitly obligates a
defendant . . . to provide 'all' information." 280 F.3d at 25
(quoting 18 U.S.C. § 3553(f)). In other words, section 3553(f)(5),
fairly read, requires a defendant to be forthcoming. He cannot
simply respond to questions while at the same time keeping secret
pertinent information concerning the offense of conviction and
related offenses that falls beyond the scope of direct
interrogation.
To be sure, we have left a door open for "a defendant who
does not furnish information because he innocently believes that it
would be of no interest." Id. at 25 n.4. But the district judge
is the sentry who guards this portal, and he obviously was not
persuaded that the appellants' contradictions and omissions had an
innocent explanation. While we regard the court's conclusions vis-
à-vis Matos as close to the line, we are mindful that the
sentencing judge had the benefit of seeing and hearing the
-15-
witnesses at first hand. We are, therefore, satisfied that this
record offers no justification for overriding his ruling.
The appellants' last attack on the safety valve
determinations raises the most serious question. They accuse the
government of not asking them about information that the government
learned from other sources, "sandbagging" them, and "ambushing"
them during the initial phase of the sentencing hearings. They
argue that because courts "interpret plea agreements more or less
as contracts," Ortiz-Santiago, 211 F.3d at 151, the government's
failure to ask follow-up questions, reinterview the appellants, or
reveal the basis of its intention to oppose their quest for the
safety valve constituted a breach of its obligation to perform in
good faith under the plea agreements. Upon close perscrutation,
however, this argument founders.
The government's actions in this case did not violate the
plea agreements. Each agreement made it crystal clear that the
availability of the safety valve depended on "the Court find[ing]
that the defendant meets the [statutory] criteria." The government
specifically reserved the right, among other things, "to dispute
sentencing factors or facts material to sentencing." A defendant's
veracity and the extent of his cooperation are facts material to
sentencing, and the government has the right — indeed, the duty —
to identify falsehoods, evasions, and suspicious omissions for the
court at the time of sentencing. See Montanez, 82 F.3d at 523.
-16-
Moreover, the government has a right to expect that a defendant who
seeks the boon of the safety valve will make a clean breast of
things; it has no obligation to interview him repeatedly in an
effort to pry loose additional nuggets of information.
We flatly reject the suggestion that the government acted
in bad faith because it would not tell the appellants, early on,
why it believed that they were dissembling. A defendant who
aspires to the safety valve must be forthcoming. If the government
reasonably suspects that the defendant is being devious, it is not
obliged to tip its hand as to what other information it may have so
that the defendant may shape his disclosures to cover his tracks,
minimize his own involvement, or protect his confederates.
Let us be perfectly clear. The government is not free to
play cat and mouse with defendants, leading safety valve
debriefings down blind alleys and then blaming the defendants for
failing to disclose material facts. Nor can the government squeeze
all the juice from the orange and then deprive a truthful and
cooperative defendant of his end of the bargain by juxtaposing
trivial inconsistencies or exaggerating inconsequential omissions.
But the sentencing court has both the power and the coign of
vantage to permit it to deal effectively with such situations. Our
case law gives trial judges broad discretion to find safety valve
eligibility in spite of government opposition, unintentional
bevues, immaterial omissions, or bona fide misunderstandings. See,
-17-
e.g., Marquez, 280 F.3d at 25 n.4 (indicating that eligibility for
the safety valve would not be jeopardized if a defendant
"innocently believes that [certain information] would be of no
interest" to the government). That power has proven to be a
sufficient deterrent to prosecutorial bullying. See Montanez, 82
F.3d at 523 ("Courts have thus far found it fairly easy to cull
serious efforts at full disclosure from mere pretense.").
Of course, if the record in a particular case were to
reveal that the sentencing court either had been snookered by the
prosecution or had been unresponsive to its task, this court would
not hesitate to intervene. But this is not such a case. The
district court carefully considered the totality of the
circumstances, assessed the witnesses' veracity, and determined
from the evidence that it was the appellants, not the government
agents, who were attempting to game the system. On this record,
there is simply no basis for the suggestion that the court erred in
refusing to impute bad faith to the government with respect to the
performance of its obligations under the plea agreements.
B. Due Process.
In a variation on this theme, the appellants assert that
the conduct of the sentencing hearings violated their due process
rights. In support of this conclusory allegation, they offer a
stream of vague allusions. With one exception, these allegations
are completely undeveloped. We therefore disregard them. See
-18-
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (remarking
the "settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").
The sole remaining point is the appellants' claim that
their sentencing hearings were held in violation of Local Rule
418.8. That rule provides:
If any party decides to call witnesses at the
imposition of sentence hearing, counsel shall
submit, in writing, to the Court, the
Probation Officer, and opposing counsel, not
later than forty-eight (48) hours before the
date set for the imposition of sentence, a
statement containing (a) the names of the
witnesses, (b) a synopsis of their anticipated
testimony, and (c) an estimate of the
anticipated length of each testimony.
D.P.R.R. 418.8
The appellants posit that the government's refusal to
divulge the identity of the witnesses to be called during the
initial phase of the sentencing hearings and the nature of their
testimony transgressed this rule. The appellants, however, did not
raise this argument in the lower court, and a party who foregoes a
timely objection to noncompliance with a local rule is in a
perilously poor position to attempt to raise that noncompliance
after the fact. United States v. Martinez-Vargas, 321 F.3d 245,
249 (1st Cir. 2003).
Even were we to assume, favorably to the appellants, that
this failure to object constituted a forfeiture rather than an
-19-
outright waiver, that characterization would not assist the
appellants' cause. We review forfeited objections for plain error.
United States v. Olano, 507 U.S. 725, 733-34 (1993); Martinez-
Vargas, 321 F.3d at 249-50. Under the plain error rubric, an
aggrieved party must demonstrate: "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected [his]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Assuming that
the failure to abide by the local rule satisfies the first two
conditions for plain error, the appellants fail to show that this
infraction meets either the third or fourth condition. We explain
briefly.
Each appellant signed a plea agreement that contemplated
the possibility that the government might dispute the applicability
of the safety valve. They were informed well in advance of the
initial sentencing hearings that the government intended not only
to challenge the quality of their disclosures but also to offer
evidence of their uncooperative behavior. The only witnesses
called by the government were the law enforcement agents who had
interrogated the appellants and a codefendant in the offense
conduct. The appellants neither claimed surprise nor sought a
continuance on grounds related to the identity of these witnesses.
This is critically important, for we long have recognized that
-20-
courts are free to assume that a party's need for more time to
adjust his game plan is limited to matters expressed in a motion
for a continuance. See, e.g., United States v. Sepulveda, 15 F.3d
1161, 1178 (1st Cir. 1993). Finally, the transcript shows that the
defense was able to mount a vigorous cross-examination. This too
is a salient consideration in determining the existence vel non of
prejudice. See id. at 1179.
We need not belabor the obvious. The combination of
these factors leaves little doubt but that the government's failure
to adhere strictly to Local Rule 418.8 did not subject the
appellants to any significant level of surprise or otherwise
prejudice their substantial rights.
We add that the circumstances of this case make it
particularly appropriate to hold the appellants to the predictable
consequences of their failure to object to the lack of notice. The
District of Puerto Rico's Local Rules allow its judges to suspend
or modify any such rule for purposes of a particular case. See
D.P.R.R. 105; see also United States v. Diaz-Villafane, 874 F.2d
43, 45-46 (1st Cir. 1989) (discussing D.P.R.R. 105); United States
v. Acosta Martinez, 89 F. Supp. 2d 173, 177 (D.P.R. 2000) (same).
We can easily envision situations in which literal enforcement of
Local Rule 418.8 could conflict with Congress's carefully crafted
incentives for a defendant to provide truthful and complete
disclosure prior to the commencement of his sentencing hearing.
-21-
Given the scenario here, we think it likely that the district
court, faced with a timely objection, would have suspended or
modified the rule for purposes of the initial phase of the
sentencing hearings.
That ends this aspect of the matter. In this case,
bypassing Local Rule 418.8 did not affect the appellants'
substantial rights, and, moreover, did not seriously impair the
fairness or integrity of the sentencing proceedings. Hence, we
find no plain error in the government's noncompliance with Local
Rule 418.8 and, accordingly, reject the appellants' due process
claim.
C. Supervised Release.
We turn now to the appellants' contention that their
terms of supervised release must be vacated. We agree in part with
this contention: while a ten-year term of supervised release was
not unlawful with respect to the offense of conviction, such a term
only can be imposed upon adherence to proper procedural safeguards.
We need not tarry. In United States v. Cortes-Claudio,
312 F.3d 17 (1st Cir. 2002), this court held that 21 U.S.C. §
841(b), which mandates a term of supervised release of "at least
five years" for covered drug-trafficking offenses, means what it
seems to say: that the sentencing court can impose a turn of
supervised release for such an offense in excess of five years.
Id. at 18. That holding is directly applicable here. Under
-22-
21 U.S.C. § 841(b), as interpreted in Cortes-Claudio, the district
court in this case had the authority to impose a ten-year term of
supervised release in regard to each of the counts of conviction.
That does not end our inquiry. Cortes-Claudio also made
it clear that a supervised release term of more than five years for
such an offense constituted an upward departure from the sentencing
guidelines. See id. at 18-19; see also USSG §5D1.2 (stating that,
in general, supervised release terms for Class A and B felonies
shall be "at least three years but not more than five years").
Because the imposition of a term of supervised release
exceeding five years represents an upward departure, the sentencing
court must give prior notice to the defendant of its intention to
impose a term of such an extended duration and must state on the
record the aggravating circumstances that justify the upward
departure. See Cortes-Claudio, 312 F.3d at 18-19; see also Burns
v. United States, 501 U.S. 129, 136 (1991) ("Congress did not
intend district courts to depart from the Guidelines sua sponte
without first affording notice to the parties."). Here, the
district court (which sentenced the appellants without the benefit
of our analysis in Cortes-Claudio) neither afforded them proper
notice of its intent to depart nor delineated the aggravating
circumstances upon which it proposed to base the upward departure.
To that extent, the sentencing court erred.
-23-
To cure this defect, we vacate both of the ten-year
supervised release terms and remand to the district court for
resentencing as to the length of the terms of supervised release.
See United States v. Nelson-Rodriguez, 319 F.3d 12, 54 (1st Cir.
2003). Withal, we do not disturb the other components of the
appellants' sentences.
III. CONCLUSION
To recapitulate, Congress designed the safety valve
statute, 18 U.S.C. § 3553(f), with a view that a defendant who
satisfies the first four prongs of the statute nonetheless must
prove himself deserving of the safety valve by providing truthful
and complete information to the government prior to the
commencement of his sentencing hearing. The court below found that
neither appellant met this fifth requirement. The record before us
adequately evinces both that the court applied the proper legal
standard and that its factfinding was not clearly erroneous.
Consequently, we uphold its determination that the appellants
failed to prove their eligibility for the safety valve. We
likewise reject the appellants' importunings that the court's
handling of the matter denied them due process. Finally, we
acknowledge that the court acted too abruptly in imposing ten-year
terms of supervised release. That error must be corrected.
We need go no further. We affirm the appellants'
sentences, save only for the terms of supervised release. We
-24-
vacate those terms and remand for resentencing as to that aspect
only.
Affirmed in part, vacated in part, and remanded for
further proceedings consistent with this opinion.
-25-