United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2430
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District of
* Nebraska
Jose Soto, *
*
Defendant - Appellant. *
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Submitted: February 13, 2006
Filed: June 1, 2006
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Before RILEY, MELLOY, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
Jose Soto appeals his sentence of 120 months of imprisonment for one count
of conspiracy to distribute and possess with intent to distribute 500 grams or more of
a mixture or substance containing a detectable amount of methamphetamine and one
count of criminal forfeiture. Soto argues that he was entitled to a safety-valve
reduction under 18 U.S.C. § 3553(f) and U.S.S.G § 5C1.2(a). We affirm.
I.
On July 22, 2004, a grand jury issued an indictment charging Soto and four co-
defendants with drug and firearm offenses. Thereafter, Soto entered into a plea
agreement with the government. Soto agreed to be held responsible for at least 500
grams, but less than 1.5 kilograms, of methamphetamine. Soto stipulated that his Base
Offense Level was 32. Soto agreed to plead guilty to two of the counts in the
indictment, and the government agreed to make a motion to dismiss another count in
the indictment.
Soto pled guilty before the district court1 on December 6, 2004. The district
court ordered a presentence investigation report (PSR). A revised PSR recommended
a Base Offense Level of 36 and a three-level reduction for acceptance of responsibility
yielding a Total Offense Level of 33. The revised PSR listed Soto as having a
Category I Criminal History with a resulting Guidelines range of 135-168 months
imprisonment.
Prior to sentencing, the district court accepted the stipulation of the Base
Offense Level of 32, and, consequently, did not accept the recommendation of the
revised PSR. The district court also deducted three levels for acceptance of
responsibility yielding a Total Offense Level of 29.
Soto believed that he was entitled to safety-valve relief under the Sentencing
Guidelines due to his two proffer interviews in December 2004. Soto attempted to
reach an agreement with the government about safety-valve relief, but the two parties
did not reach an agreement before Soto’s sentencing.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
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At sentencing, on May 9, 2005, the district court accepted the plea agreement
between Soto and the government. With a Total Offense Level of 29 and a Criminal
History Category I, the district court determined that a Guidelines sentencing range
of 87-108 months was appropriate. The statutory mandatory minimum of 120 months
was greater than the range determined by the district court based on Soto’s offense
level and criminal history. Pursuant to § 5G1.1(b), the Guidelines sentence thus
became 120 months imprisonment.
The district court denied safety-valve relief for Soto because he had not met the
statutory requirements to prove his eligibility. Specifically, the district court found
that Soto was neither completely truthful in his statements about his role in the
offenses nor about his conduct relevant to that offense. Consequently, the district
court sentenced Soto to 120 months imprisonment.
II.
Soto had the burden to prove that he qualified for a safety-valve sentencing
reduction under 18 U.S.C. § 3553(f)(5) and U.S.S.G § 5C1.2(a). United States v.
O’Dell, 204 F.3d 829, 838 (8th Cir. 2000). “We review for clear error a district
court’s findings as to the completeness and truthfulness of a defendant’s safety-valve
proffer.” United States v. Bolanos, 409 F.3d 1045, 1047 (8th Cir. 2005).
“The ‘safety valve’ provision permits a district court to impose on a drug
defendant a more lenient sentence within the otherwise applicable guidelines range
if certain conditions are met.” O’Dell, 204 F.3d at 838. In order to qualify for safety-
valve relief, a defendant must show, by a preponderance of the evidence, that:
(1) the defendant does not have more than 1 criminal history point,
as determined under the sentencing guidelines;
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(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).
The district court found that Soto had failed to satisfy the fifth prong of the
safety-valve requirements. The district court found that Soto gave neither truthful and
complete information regarding the offense for which he pled guilty nor truthful and
complete information about his relevant conduct.
A defendant is not entitled to safety-valve relief when he or she just conveys
the “basic facts of his [or her] crime.” United States v. Alarcon-Garcia, 327 F.3d 719,
723 (8th Cir. 2003). A defendant must prove “through affirmative conduct, that he
[or she] gave the Government truthful information and evidence about the relevant
crimes before sentencing.” United States v. Romo, 81 F.3d 84, 85-86 (8th Cir. 1996).
“In making its assessment of the truthfulness of a safety valve proffer, the district
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court is entitled to draw reasonable inferences from the evidence.” United States v.
Alvarado-Rivera 412 F.3d 942, 948 (8th Cir. 2005) (en banc).
In this case, Soto offers his two December 2004 proffers to argue that he was
eligible for safety-valve relief. However, there are several reasons those proffers do
not meet the requirements of the fifth prong of 18 U.S.C. § 3553(f). In the two
proffers, Soto claimed to have had a minimal role in the drug conspiracy. Soto’s story
about his role contradicted the interviews of the other co-defendants in the case.
Soto’s account was also less detailed than those of his co-defendants. There were also
numerous discrepancies between the interviews of the co-defendants and Soto about
specific factual events.
The district court found that Soto had not been completely truthful and
forthcoming in his proffers. One particular claim by Soto illustrates the district
court’s grounds for questioning the veracity of Soto’s proffers. Soto asserted that the
first day he met co-defendant Richard Garza at the Maple Street bar was the day of
Soto’s arrest. While waiting to place an order with another co-defendant, Sergio
Martinez-Soto, Soto alleges that he first met Garza. Because neither Soto nor
Martinez-Soto spoke English, Soto alleges that they asked Garza to place an order for
them. It was at this time that Soto alleged that he first spoke with Garza about drugs.
Based upon this chance meeting, Soto alleged that Garza immediately trusted Soto and
Martinez-Soto, accompanied Soto and Martinez-Soto to a drug buyer’s home, and
entrusted Soto and Martinez-Soto to hold drugs and money for Garza. This account
by Soto strains credulity. Not surprisingly, Soto’s story was inconsistent with Garza
and Martinez-Soto’s interviews regarding the same meeting.
The proffers of all of the other co-defendants show a larger role for Soto than
he attributed to himself in his own proffer. There were also statements in Garza’s
proffer which connected Soto to the firearm in the case. Specifically, Garza alleged
that Soto was the one who purchased the gun. Soto denied any such connection. The
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district court found that Soto’s proffered testimony was not sufficiently credible to
meet Soto’s burden for receiving safety-valve relief. We generally do not disturb such
a credibility finding by a district court. See United States v. Shallal, 410 F.3d 434,
437 (8th Cir. 2005)
Because of the discrepancies with the other interviews in the case, we do not
find error with the district court’s handling of this issue. It was Soto’s burden to prove
he qualified for safety-valve relief. Based upon the record before us, we see nothing
that would indicate the district court erred in finding Soto had failed to meet that
burden.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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