[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14100 APRIL 21, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-60275-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEX GHEORGHIU,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 21, 2006)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Alex Gheorghiu appeals his 48-month sentence for conspiracy to
possess with intent to distribute methylenedioxymethamphetamine hydrochloride
(“MDMA”), in violation of 21 U.S.C. § 846. On appeal, Gheorghiu first argues
that he should have received a minor-role reduction because his only conduct in a
lengthy conspiracy was a one-day appearance.
We review a district court’s decision on whether to grant a minor-role
reduction for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc).
Minimal participants may receive a four-level reduction, [and] minor
participants may receive a two-level reduction. . . See U.S.S.G. §
3B1.2(a), (b). The commentary to the Guidelines instructs that a
four-level reduction “is intended to cover defendants who are plainly
among the least culpable of those involved in the conduct of a group .
. . . and their lack of knowledge or understanding of the scope and
structure of the enterprise and of the activities of others is indicative
of a role as minimal participant.” U.S.S.G. § 3B1.1, comment. (n.1).
The application note provides, for example, that a four-level reduction
would be appropriate “for someone who played no other role in a very
large drug smuggling operation than to offload part of a single
marihuana shipment, or in a case where an individual was recruited as
a courier for a single smuggling transaction involving a small amount
of drugs.” U.S.S.G. § 3B1.2, comment. (n.2). In contrast, a minor role
in the offense “means any participant who is less culpable than most
other participants, but whose role could not be described as minimal.”
U.S.S.G. § 3B1.2, comment. (n.3).
Id. at 939.
The defendant has the burden of establishing his role by a preponderance of
evidence. Id. For a sentencing court to determine whether to grant a minor-role
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reduction, it considers two principles. Id. at 940. First, the court must measure
the defendant’s role against the relevant conduct for which she is being held
accountable. Id. We have noted that “[o]nly if the defendant can establish that she
played a relatively minor-role in the conduct for which she has already been held
accountable - not a minor role in any larger criminal conspiracy - should the
district court grant” a minor-role reduction. Id. at 944. The second prong of the
minor-role reduction analysis permits a district court, “where the record evidence
is sufficient . . . [, to] measure the defendant’s conduct against that of other
participants in the criminal scheme attributed to the defendant.” Id. at 934.
Because the record demonstrates that Gheorghiu was held accountable only
for his own conduct in supplying the MDMA, we conclude from the record that the
district court did not err in failing to grant a minor-role reduction. As to this issue,
we affirm the district court.
Gheorghiu next argues that, because he eventually told the government the
truth regarding the instant offense, he was entitled to safety-valve relief. The
standard of review of a district court’s factual determinations of whether to grant
safety-valve relief is clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th
Cir. 1997). “The question of whether the information [that the defendant] supplied
to the government . . . was truthful and complete . . . is a factual finding for the
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district court.” United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000).
“The burden of proof on the truthfulness issue lies, of course, with the defendant.”
United States v. Espinosa, 172 F.3d 795, 797 (11th Cir. 1999). The district court’s
findings of credibility are accorded special deference. United States v. Amedeo,
370 F.3d 1305, 1318 (11th Cir. 2004).
A defendant is entitled to safety-valve relief if he “meets [inter alia, the]
criteria [that] not later than the time of the sentencing hearing, the defendant has
truthfully provided the Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same course of conduct.”
United States v. Simpson, 228 F.3d 1294, 1304-1305 (11th Cir. 2000) (citing 18
U.S.C. § 3553(f); U.S.S.G. § 5C1.2).
Nothing in the statute suggests that a defendant who previously lied or
withheld information from the government is automatically
disqualified from safety-valve relief. . . . We follow those circuits who
have held that lies and omissions do not, as a matter of law, disqualify
a defendant from safety-valve relief so long as the defendant makes a
complete and truthful proffer not later than the commencement of the
sentencing hearing.
Brownlee, 204 F.3d at 1304-05. However, the district court, when deciding on the
defendant’s truthfulness, may take into account the defendant’s previous
untruthfulness, and the evidence of his lies becomes “part of the total mix of
evidence for the district court to consider in evaluating the completeness and
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truthfulness of the defendant’s proffer.” Id. at 1305 (internal quotations and
citation omitted).
Here, Gheorghiu has failed to show that the district court clearly erred when
it found that he was not entitled to the safety-valve reduction. The district court
properly considered as part of the total mix, the fact that Gheorghiu was not
truthfully forthcoming about his supplier and mailing controlled substances to
himself. Because Gheorghiu has failed to show that the district court clearly erred
in finding that he had not truthfully provided to the government all relevant
information that he had concerning the offense that was part of the same course of
conduct, we affirm the district court’s finding.
For the above-stated reasons, we affirm Gheorghiu’s sentence.
AFFIRMED.
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