[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 25, 2007
No. 06-15967 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60074-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERUBES RAMIREZ-MARTINEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 25, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Erubes Ramirez-Martinez appeals his 120-month sentence for conspiracy to
possess with intent to distribute heroin, and attempted possession with intent to
distribute heroin, both in violation of 21 U.S.C. § 846. Martinez-Ramirez argues
that the district court erred in denying him a safety-valve reduction of his sentence.
He asserts that the district court erred (1) by finding that his statements in support
of a safety valve reduction were untruthful; and (2) by denying him a continuance
to obtain evidentiary support for his statements.
The “safety-valve” provision, provided in U.S.S.G. § 5C1.2, requires a
district court to sentence a defendant without regard to any statutory minimum if,
inter alia, “the defendant has truthfully provided to the Government all information
and evidence the defendant had concerning the offense . . ..” U.S.S.G. § 5C1.2(5)
(emphasis added). The question of whether the defendant’s safety-valve statement
is truthful is a factual finding, which we review for clear error. United States v.
Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000).
Here, Ramirez-Martinez initially told the court that he was involved in a
conspiracy with an unnamed uncle and cousin. However, when pressed to identify
these individuals, he changed his story and took the position that his co-
conspirators were a man called “La Fania” in Baltimore and several unnamed
individuals in New York. We have previously held that while lies and omissions
do not automatically disqualify a defendant from safety valve relief, a defendant's
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prior lies may be relevant as "part of the total mix of evidence for the district court
to consider in evaluating the completeness and truthfulness of the defendant's
[final] proffer." Id. (internal quotation marks omitted). We therefore find that the
district court properly considered Ramirez-Martinez’s prior falsehoods in
determining that he was untruthful. Further, in light of these earlier statements, we
conclude that Ramirez-Martinez has not met his burden of showing that the district
clearly erred in finding him ineligible for safety-valve relief and accordingly, we
affirm. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997) (finding that a
defendant bears the burden of establishing the truthfulness of his statement).
Ramirez-Martinez also argues that the district court erred in denying him a
continuance to seek further evidentiary support for his statement. We review a
district court's denial of a motion to continue sentencing for abuse of discretion.
United States v. Lee, 427 F.3d 881, 896 (11th Cir. 2005), cert. denied, 126 S. Ct.
1447 (2006). The defendant has the burden to demonstrate that "the denial was an
abuse of discretion and that it produced specific substantial prejudice." United
States v. Smith, 757 F.2d 1161, 1166 (11th Cir. 1985). First, we reject as irrelevant
and unsupported, Ramirez-Martinez’s argument that the motion was denied
because the district court was in a hurry. Second, we agree with the district court
that, in light of Ramirez-Martinez’s repeated false statements, a continuance would
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only delay the inevitable denial of a safety-valve reduction. We therefore find that
Ramirez-Martinez was not prejudiced by the denial of his motion and accordingly,
we affirm the decision below.
AFFIRMED.
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