United States v. Aidoo

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 10-4752
FRANK AIDOO,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, District Judge.
(1:09-cr-00168-BEL-1)

Argued: October 27, 2011

Decided: February 29, 2012

Before TRAXLER, Chief Judge, and GREGORY and
KEENAN, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the
majority opinion, in which Judge Keenan joined. Judge Greg-
ory wrote a dissenting opinion.

COUNSEL

ARGUED: Brendan Abell Hurson, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Mushtaq Zakir Gunja, OFFICE OF THE UNITED
2 UNITED STATES v. AIDOO
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, Balti-
more, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Robert R. Harding, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.

OPINION

TRAXLER, Chief Judge:

Frank Aidoo pleaded guilty to unlawful importation of her-
oin in violation of 21 U.S.C. § 952(a). At sentencing, the dis-
trict court concluded that Aidoo had not been truthful and
therefore was not eligible for sentencing under the "safety
valve" exception to the otherwise-applicable statutory mini-
mum sentence. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a).
The court sentenced Aidoo to 60 months’ imprisonment, the
minimum sentence permitted under the statute. Aidoo
appeals, and we affirm.

I.

Customs officials had intelligence suggesting that Aidoo, a
native and resident of Ghana and a citizen of the Netherlands,
was involved in drug smuggling. After learning that Aidoo
had paid cash for a ticket just a few days before he boarded
a flight from Ghana, the officers stopped Aidoo when he
landed at Baltimore-Washington International Airport on
March 27, 2009. Aidoo initially told the officers that he was
in the United States to visit his nephew "Evans Twum," the
name listed on Aidoo’s customs declaration form. When the
officers called Twum at the number provided by Aidoo, the
person answering the phone seemed very nervous and hung
up. The officers called back, and the person answering the
phone identified himself as Michael Jackson and again hung
 UNITED STATES v. AIDOO 3
up. Aidoo finally admitted that he had ingested heroin, and he
eventually passed pellets containing 998.4 grams of heroin.
He was indicted on one count of importing heroin and one
count of possession with intent to distribute heroin. Hoping to
qualify for sentencing under the safety valve, Aidoo met with
the government in a proffer session. Aidoo told the govern-
ment that this incident was the first time he had ever smug-
gled heroin and that he had been paid $10,000 by a man
Aidoo could identify only as "Kofi." Aidoo did not say who
his contact in the United States was to be, and he identified
no one in the United States as being involved in the scheme.
J.A. 32-33, 130-31. Although Aidoo had provided a phone
number for Evans Twum when he was arrested, he refused to
implicate Twum in the smuggling. The government showed
Aidoo his passport, with dozens of stamps showing numerous
trips out of Ghana, and told Aidoo that the passport appeared
to be that of an international drug smuggler. Aidoo explained
that he traveled to Europe and the United States to buy clothes
at outdoor bazaars and department stores. Aidoo said he
brought the clothes back in his suitcase and then resold the
clothes in Ghana. J.A. 31-32, 55. The government informed
Aidoo at the proffer session that it did not believe he was
being truthful and that he did not meet the requirements of the
safety valve.

Aidoo eventually pleaded guilty to a single count of
importing heroin. The plea agreement included a stipulation
to facts that the government "would prove beyond a reason-
able doubt," J.A. 23, including a statement that "[i]ntelligence
obtained [by Customs officials] showed that Aidoo had been
involved in heroin smuggling activities. Aidoo had traveled to
an address in New York utilized by Nigerian heroin smug-
glers who were apprehended at John F. Kennedy Airport and
in Boston." J.A. 24. The plea agreement noted the govern-
ment’s opposition to application of the safety valve but pre-
served Aidoo’s right to argue to the district court that he
qualified for sentencing under the safety valve and to appeal
should the court reject his safety-valve argument.
4 UNITED STATES v. AIDOO
The presentence report ("PSR") prepared in advance of sen-
tencing stated that Aidoo "appears to meet the criteria set for
imposition of a sentence . . . without regard to any statutory
minimum sentence." J.A. 104. Applying a three-level
acceptance-of-responsibility reduction and the two-level
reduction provided for defendants who meet the safety-valve
requirements, see U.S.S.G. § 2D1.1(b)(11), the PSR calcu-
lated that Aidoo’s advisory sentencing range was 57-71
months.

After receiving the PSR, counsel for Aidoo submitted to the
court a letter outlining his view of sentencing. Counsel con-
tended that Aidoo had satisfied all of the safety-valve require-
ments and noted that the government had not objected to the
finding in the PSR that Aidoo was eligible for the safety-
valve. In the letter, counsel asserted that several of Aidoo’s
international trips had been for the purpose of obtaining medi-
cal treatment that was unavailable to Aidoo in Ghana. The
day after Aidoo’s letter was filed, the government filed a sen-
tencing memorandum objecting to application of the safety
valve because Aidoo had not been truthful and specifying its
reasons for believing Aidoo to be ineligible.

At the sentencing hearing, the government explained its
opposition to application of the safety valve, reiterating the
points made in its sentencing memorandum. The government
stated that Aidoo’s claim that the March 27 incident was the
first time he had smuggled heroin was inconsistent with the
information stipulated to in the plea agreement; that the large
quantity of heroin Aidoo had ingested (just under a kilogram)
suggested that he was an experienced smuggler; that Aidoo
had never identified his contact in the United States; and that
his international-clothes-buying-and-reselling story was not
believable. The government noted that while counsel for
Aidoo had stated in his sentencing letter that some of Aidoo’s
international trips had been to obtain medical treatment,
Aidoo himself had not mentioned any such trips during the
proffer session.
 UNITED STATES v. AIDOO 5
Counsel for Aidoo asserted that Aidoo had been completely
truthful about the conduct that led to his arrest and was enti-
tled to sentencing under the safety valve. Although counsel
presented no evidence to support Aidoo’s story, counsel did
represent to the court that counsel had read certain Congres-
sional testimony and various newspaper articles indicating
that drug mules ingest, on average, just under a kilogram of
drugs. Counsel also noted that Aidoo had medical records in
his possession when he was arrested that showed he had
received medical treatment in Belgium at least four times.
Counsel argued that the stipulation in the plea agreement
about Aidoo’s prior activities was not an admission that
Aidoo had smuggled previously, but merely reflected his
agreement that Aidoo had previously listed an address that at
some point was associated with drug smugglers.1 When asked
by the district court how Aidoo had paid for all of his interna-
tional travel, counsel stated he had spoken to the pastor of
Aidoo’s church in Ghana and that the church had provided
some financial assistance. Counsel argued that the govern-
ment was free to disbelieve Aidoo’s story about his clothes-
buying trips, but that the prior trips were not part of a com-
mon scheme or plan with the offense of conviction and that
Aidoo was not required to explain those trips to qualify for
the safety valve.

The district court concluded that Aidoo was not entitled to
sentencing under the safety valve because of the "inherent
implausibility" of Aidoo’s explanation of his international
travel. J.A. 53. The court explained:
1
We note that counsel’s statement seems to suggest that on previous
trips to the United States, Aidoo listed on his customs declaration form an
address in New York that was used by Nigerian drug smugglers, while the
stipulation in the plea agreement indicates that Aidoo actually visited the
address associated with the drug smugglers. The precise details of Aidoo’s
connection to the New York address, however, are not relevant to our
decision.
6 UNITED STATES v. AIDOO
[T]hat was not a statement of some kind of whole-
sale business that he was arranging shipments back
on a freighter or a bulk shipment, or that he was buy-
ing from factories. It’s just simply implausible that
a person can go to a department store in Brussels or
some other city, buy some garments, put them in the
suitcase, go back to Ghana, and sell them for a price
that covers the expenses of the trips.

All the thousands of dollars for international travel
and staying in hotels is simply implausible, and, for
that reason, I conclude that Mr. Aidoo is not eligible
for the safety valve.

J.A. 53. Counsel for Aidoo then explained to the court that
Aidoo in his proffer had talked primarily about buying clothes
at outdoor bazaars and fairs and had mentioned only one
department store. The district court accepted that proffer but
explained that it did not change its conclusion: "[T]he signal
event [is] that the clothes go into a suitcase and go back to
Ghana, so we don’t have anything that could be characterized
as a wholesale operation. So even accepting that proffer, my
view is the same." J.A. 55. The district court thus concluded
that Aidoo was subject to the five-year mandatory minimum
sentence, and the court sentenced him to 60 months’ impris-
onment.

II.

A.

The safety-valve statute requires sentencing courts to disre-
gard any statutory mandatory minimum sentence if the defen-
dant establishes that: (1) he does not have more than one
criminal history point; (2) he did not use or threaten violence
or possess a firearm or other dangerous weapon; (3) the
offense did not result in death or serious bodily injury; (4) he
was not an organizer, leader, manager, or supervisor of others;
 UNITED STATES v. AIDOO 7
and (5) he truthfully provided the government with all evi-
dence and information about the offense and related offenses.
See 18 U.S.C. § 3553(f).

Under the statute, the government must be given an oppor-
tunity to make a recommendation, but the statute requires the
district court to independently determine whether the require-
ments have been met, including whether the defendant was
truthful. See id.; United States v. Ivester, 75 F.3d 182, 185
(4th Cir. 1996). In this case, there is no dispute that Aidoo sat-
isfied the first four requirements of § 3553(f). The only ques-
tion is whether Aidoo satisfied the fifth requirement by
"truthfully provid[ing] 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).

The defendant bears the burden of "prov[ing] that the pre-
requisites for application of the safety valve provision, includ-
ing truthful disclosure, have been met." United States v.
Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996); accord
United States v. Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir.
2005) (en banc); United States v. Marquez, 280 F.3d 19, 23
(1st Cir. 2002); United States v. Gambino, 106 F.3d 1105,
1110 (2d Cir. 1997); United States v. Ramirez, 94 F.3d 1095,
1101 (7th Cir. 1996). And because the burden is on the defen-
dant, the government has no obligation to present evidence of
the defendant’s failure to satisfy the requirements of the
safety valve. See United States v. Sanchez, 475 F.3d 978, 980
(8th Cir. 2007) ("The United States has no burden to refute a
defendant’s assertion that his information is truthful if his
proffer is inadequate."); Marquez, 280 F.3d at 24-25 ("Were
we to . . . insist upon extrinsic evidence, district courts would
be bound to accept even the most arrant nonsense from a
defendant’s mouth so long as the government could not
directly contradict it by independent proof. A rule to that
effect would turn the burden of persuasion inside out.").
8 UNITED STATES v. AIDOO
B.

On appeal, Aidoo argues that the district court erred by
concluding he was not entitled to sentencing under the safety
valve. While Aidoo acknowledges that the burden of proving
compliance with the statute belongs to him, he argues that he
did prove his compliance and that the government therefore
was obligated to come forward with evidence showing that he
had not been truthful or that his disclosure was less than com-
plete. Because the government did not present such evidence,
Aidoo contends that the district court had no basis for refusing
to apply the safety valve.

In support of his claim that the government was required to
disprove his story, Aidoo relies primarily on United States v.
Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996). In Miranda-
Santiago, the First Circuit held that the government could not
defeat the application of the safety valve "simply by saying,
‘We don’t believe the defendant,’ and doing nothing more."
Id. at 529. The court made it clear, however, that any obliga-
tion on the part of the government arises only if the defendant
has established the credibility of his story:

The defendant plainly has the burden of proving, by
a preponderance of the evidence, entitlement to relief
under section 3553(f). However, where a defendant
in her submissions credibly demonstrates that she
has provided the government with all the informa-
tion she reasonably was expected to possess, in
order to defeat her claim, the government must at
least come forward with some sound reason to sug-
gest otherwise.

Id. at 529 n.25 (emphasis added; citation omitted). Since
Miranda-Santiago was decided, the First Circuit has repeat-
edly emphasized the narrowness of that holding. For example,
in Marquez, the First Circuit rejected the defendant’s claim
that Miranda-Santiago required the government to present
 UNITED STATES v. AIDOO 9
evidence showing that his disclosure was untruthful or incom-
plete. See Marquez, 280 F.3d at 24. The Marquez court reiter-
ated the established rule that "a sentencing court may reject
a safety valve proffer based on its reasoned assessment of the
defendant’s credibility in light of the facts — and that the
court may do so without the benefit of independent rebuttal
evidence." Id. As to the defendant’s understanding of
Miranda-Santiago, the court explained that

Miranda-Santiago stands merely for the proposition
that when the record, taken as a whole, will not sup-
port a finding that the defendant has failed to provide
a truthful and complete proffer, the government’s
lack of confidence in the proffer is insufficient, in
and of itself, to justify a denial of access to the safety
valve.

Id.; see also United States v. Padilla-Colon, 578 F.3d 23, 31
(1st Cir. 2009) (reaffirming the Marquez court’s understand-
ing of Miranda-Santiago); United States v. White, 119 F.3d
70, 74 (1st Cir. 1997) ("Miranda-Santiago in no sense sug-
gests that the sentencing court cannot arrive at an independent
determination regarding a criminal defendant’s truthfulness,
based on the evidence before it. Rather, we there held merely
that it was clear error to conclude that the defendant had been
untruthful, based solely on a PSR which directly contradicted
the district court’s determination.").

Since any obligation on the part of the government under
Miranda-Santiago arises only after the defendant has carried
his burden of proof, Aidoo’s various arguments that the gov-
ernment was required to present evidence disproving his story
are thus dependent on his assertion that he carried his burden
of proof and established at the sentencing hearing that he pro-
vided a truthful and complete disclosure of all relevant infor-
mation. The record, however, does not support this assertion.
10 UNITED STATES v. AIDOO
Counsel for Aidoo insisted at sentencing that Aidoo had
truthfully told the government everything he knew about the
incident leading to his arrest. A defendant’s "bare assertion
that he was truthful," however, is insufficient to "satisfy his
burden to prove by a preponderance of the evidence that he
provided a full and honest disclosure." United States v.
Montes, 381 F.3d 631, 637 (7th Cir. 2004). The defendant’s
burden under the safety valve is a true burden of proof that
rests, at all times, on the defendant. To carry his burden, the
defendant must persuade the district court that he has made
full, truthful disclosure of information required by the safety
valve. See Ramirez, 94 F.3d at 1100 ("The court’s conclusion
in favor of the defendant necessarily depends upon the defen-
dant’s persuasive ability to demonstrate to the court that he is
eligible for the reduced sentence."); United States v. Mon-
tanez, 82 F.3d 520, 523 (1st Cir. 1996) ("It is up to the defen-
dant to persuade the district court that he has truthfully
provided the required information and evidence to the govern-
ment." (internal quotation marks omitted)). At least in cases
like this one, where the government opposes application of
the safety valve, a defendant cannot carry his burden of proof
without presenting some kind of evidence. See United States
v. Cervantes, 519 F.3d 1254, 1258 (10th Cir. 2008) ("Absent
a favorable recommendation from the government, a defen-
dant needs to put on evidence at the sentencing hearing to
meet his burden of showing that he truthfully and fully dis-
closed everything he knew and to rebut government claims to
the contrary."); United States v. Martinez, 301 F.3d 860, 866
(7th Cir. 2002) (explaining that a defendant "cannot meet this
burden if the government challenged the truthfulness, accu-
racy, or completeness of his statements and he produced noth-
ing to persuade the district court that his disclosures were
truthful and complete").2
2
Given the nature of sentencing proceedings, the evidence supporting a
defendant’s claim of truthful disclosure need not be as formal as might be
required in a trial. See United States v. Cervantes, 519 F.3d 1254, 1258
(10th Cir. 2008) (noting that defendant’s evidence "may include proffer
documents, stipulated facts, or, in all likelihood, testimony from the defen-
dant or a representative of the government subject to cross-examination").
 UNITED STATES v. AIDOO 11
Aidoo, however, did not testify at the sentencing hearing,
and he presented no other evidence showing that he had pro-
vided the government with complete and truthful disclosure.
To be sure, counsel for Aidoo talked about evidence — the
medical records showing Aidoo received treatment in Europe,
and the newspaper articles and Congressional testimony indi-
cating that it is not unusual for drug smugglers to ingest up
to a kilogram of narcotics. The documents, however, were not
presented to the district court, and the government did not
stipulate to any of the information proffered by counsel for
Aidoo. Nonetheless, even if we treat counsel’s statements
about the documents as evidence, they do little to further
Aidoo’s claim. The medical records explain only a few of the
"dozens and dozens" of international trips shown on Aidoo’s
passport, J.A. 32, and the ability of some smugglers to ingest
a kilo of narcotics says nothing about the likelihood that a
first-time "body packer," as Aidoo claimed to be, could ingest
such a large quantity. This evidence, at best, may be consis-
tent with Aidoo’s story, but the evidence falls far short of
proving that Aidoo provided full and truthful disclosure.
Given the weakness of the evidentiary record—a record that
Aidoo was obligated to establish—we cannot say that the dis-
trict court clearly erred by concluding that Aidoo was not eli-
gible for sentencing under the safety valve. See United States
v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997) (explaining that
the district court’s determination of whether a defendant has
satisfied the safety valve criteria is a question of fact reviewed
for clear error); see also United States v. Adu, 82 F.3d 119,
125 (6th Cir. 1996) ("Where the government challenges a
defendant’s claim of complete and timely disclosure and the
defendant does not produce evidence that demonstrates such
disclosure, a district court’s denial of a motion under
§ 3553(f) and § 5C1.2(5) is not clearly erroneous.").

This case, therefore, is quite unlike Miranda-Santiago,
where the only inference that could be drawn from the record
was that the defendant had provided a truthful and complete
proffer. Because Aidoo failed to create a record that affirma-
12 UNITED STATES v. AIDOO
tively establishes that he provided complete and truthful dis-
closure to the government, we reject Aidoo’s arguments that,
under Miranda-Santiago, the government was required to
present evidence showing that he had not been truthful or that
his disclosure was less than complete.

Our conclusion that the government had no obligation to
present evidence rebutting Aidoo’s proffer leaves little room
for Aidoo to challenge the district court’s rejection of the
safety valve. At the sentencing hearing, the government, in
accordance with its statutory right to make a recommendation,
see 18 U.S.C. § 3553(f), pointed out the shortcomings of
Aidoo’s proffer, such as his refusal to implicate Evans Twum
or to otherwise identify his contact in the United States, and
suggested that Aidoo’s clothes-buying story was not believ-
able. See Ramirez, 94 F.3d at 1102 ("The government may
respond to the defendant’s statements by challenging them for
their lack of candor or completeness or by calling to the
court’s attention the omission of evidence that the defendant
should know and has not turned over to the government.").
The district court was entitled to consider those arguments
when making its independent determination of whether the
defendant had satisfied the statutory requirements. See United
States v. Gales, 603 F.3d 49, 54 (D.C. Cir. 2010) (explaining
that even though the government did not present evidence
contradicting the defendant’s story, the district court was enti-
tled to consider the government’s assertion that the defen-
dant’s story was not credible); United States v. Ponce, 358
F.3d 466, 468-69 (7th Cir. 2004) ("A district court has the dis-
cretion . . . to consider the government’s statements regarding
contradictions and omissions in a defendant’s offer of infor-
mation . . . ."). The district court was likewise entitled to draw
on its common sense and real-world experience to conclude
that buying clothes at retail in the United States and Europe—
in suitcase-sized lots—for resale in Ghana was unlikely to be
a money-making venture, particularly given the airfare and
hotel costs associated with international travel. See Gales, 603
F.3d at 54 (district court is entitled to draw reasonable infer-
 UNITED STATES v. AIDOO 13
ences when determining the credibility of defendant’s prof-
fer); Marquez, 280 F.3d at 24 ("[A] sentencing court may
reject a safety valve proffer based on its reasoned assessment
of the defendant’s credibility in light of the facts . . . .");
Beltran-Ortiz, 91 F.3d at 669 n.4 ("[D]istrict courts remain
free to reject a defendant’s claim of full disclosure for credi-
bility reasons . . . ."); Montanez, 82 F.3d at 523 ("The govern-
ment is perfectly free to point out the suspicious omissions at
sentencing, and the district court is entitled to make a com-
mon sense judgment. . . ."); cf. United States v. Perry, 747
F.2d 1165, 1169 (7th Cir. 1984) ("Judges in the federal sys-
tem, whether they are in the trial or appellate system, do not
operate in a vacuum, shielded from knowledge of drug opera-
tions in the real world . . . .").

Aidoo, however, contends that the district court’s disbelief
of the clothes-buying story cannot justify the court’s refusal
to apply the safety valve. The safety valve requires disclosure
of information "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). Aidoo argues that because
the government failed to connect any prior drug-smuggling by
Aidoo to the offense of conviction, he was not obligated
under the safety valve to explain his prior travels. And
because he was not required to disclose information about his
prior travels, Aidoo contends that the court’s disbelief of his
clothes-buying story does not preclude application of the
safety valve. See, e.g., United States v. Miller, 179 F.3d 961,
967-68 (5th Cir. 1999) (concluding that the defendant was
entitled to application of safety valve despite his lies about
prior conduct, because the prior conduct was not relevant con-
duct about which disclosure is required). We disagree.

As an initial matter, we note that even if the prior smug-
gling alluded to in the plea agreement was not sufficiently
connected to the offense of conviction, that does not mean
that Aidoo’s explanation of his international travel cannot be
subject to scrutiny under the safety valve. Section 3553(f)(5)
14 UNITED STATES v. AIDOO
requires broad disclosure from the defendant; it is a tell-all
provision that requires the defendant to "truthfully supply
details of his own culpability." United States v. Real-
Hernandez, 90 F.3d 356, 361 (9th Cir. 1996); accord Montes,
381 F.3d at 636 (The "plainly broad language [of
§ 3553(f)(5)] suggests that any and all information that the
defendant possesses concerning the offense must be provided
to the Government." (internal quotation marks omitted)). As
noted above, Aidoo offered the clothes-buying story to bolster
his claim that the incident leading to his arrest was his first
venture into smuggling. Whether the incident was Aidoo’s
first time smuggling is the kind of detail about the offense of
conviction that must be disclosed under the safety valve. See
United States v. Gonzalez-Montoya, 161 F.3d 643, 652 (10th
Cir. 1998) ("Under § 3353(f)(5), a defendant must affirma-
tively volunteer all he knows [about the offense of convic-
tion], including facts beyond the basic elements of the
crime."). The story that Aidoo offered up to bolster his claim
on this point should likewise be treated as part of the disclo-
sure required by the safety valve.

Moreover, even if we were to accept Aidoo’s view that his
international travels were not connected to the offense of con-
viction and that his clothes-buying story was not part of the
disclosure required by the safety valve, we would still find no
error in the district court’s consideration of the plausibility of
Aidoo’s clothes-buying story. As Aidoo notes, a defendant’s
lies about an unrelated matter or later-corrected lies about the
offense do not automatically foreclose application of the
safety valve. See United States v. Brownlee, 204 F.3d 1302,
1304 (11th Cir. 2000); Miller, 179 F.3d at 967-68. Nonethe-
less, while the lies may not be disqualifying, neither are they
irrelevant. The district court is obligated to determine for
itself whether the defendant has truthfully provided the gov-
ernment with all the relevant information that he knows, and
the court is free to consider any lies the defendant may have
told when evaluating the defendant’s truthfulness. See United
States v. Nuzzo, 385 F.3d 109, 119 n.25 (2d Cir. 2004)
 UNITED STATES v. AIDOO 15
("While a district court may find the fifth criterion of the
safety valve satisfied despite prior lies and omissions, neither
a district court nor this Court is precluded from considering
those prior lies and omissions in determining whether the
defendant has met his burden of proving that the information
provided as of sentencing is complete and truthful."); Brown-
lee, 204 F.3d at 1305 ("[T]he evidence of [the defendant’s
prior] lies becomes part of the total mix of evidence for the
district court to consider in evaluating the completeness and
truthfulness of the defendant’s proffer." (internal quotation
marks omitted)). In this case, as noted above, it was proper for
the district court to use its own common sense to find Aidoo’s
clothes-buying story implausible. Upon finding the story
implausible, the district court committed no error by basing its
rejection of the safety valve on the fact that Aidoo lied during
his proffer session. See United States v. Guerra-Cabrera, 477
F.3d 1021, 1025 (8th Cir. 2007) ("The district court was . . .
entitled to infer untruthfulness from the implausibility of
appellants’ accounts."); United States v. Fletcher, 74 F.3d 49,
56 (4th Cir. 1996) (affirming denial of safety valve in case
where district court found that defendant lied by fabricating
an alibi at trial: "[I]t is not illogical to assume that the judge
similarly determined that [the defendant] failed to comply
with the fifth condition" of § 3553(f)).

III.

We turn now to Aidoo’s remaining challenges to the dis-
trict court’s rejection of his safety-valve claim.

A.

In the course of its ruling, the district court stated that "if
Mr. Aidoo was an experienced heroin smuggler, then he was
required to advise the government of that fact and explain his
experience, how many times he has done this, who he did it
for, his modus operandi." J.A. 52. Aidoo argues that this
description of the disclosure obligation effectively requires
16 UNITED STATES v. AIDOO
disclosure of every criminal act the defendant has ever com-
mitted. While a defendant seeking a substantial-assistance
reduction in his sentence might be required to make that kind
of wide-ranging disclosure, see U.S.S.G. § 5K1.1(a)(2), the
safety valve’s disclosure requirement is limited to information
about the offense of conviction and any other crimes that con-
stitute relevant conduct, see 18 U.S.C. § 3553(f). Aidoo thus
contends that the district court measured his compliance
against a standard of disclosure higher than that imposed by
the safety valve. We disagree.

The district court made this statement in the course of con-
sidering the government’s claim that Aidoo was an experi-
enced smuggler, and the statement is an accurate description
of the disclosure that would be required if Aidoo were an
experienced member of a drug-smuggling conspiracy. See,
e.g., United States v. Romo, 81 F.3d 84, 85 (8th Cir. 1996)
("To satisfy § 3553(f)(5), Romo was required to disclose all
the information he possessed about his involvement in the
crime and his chain of distribution, including the identities
and participation of others."); Ivester, 75 F.3d at 184
("[S]atisfaction of § 3553(f)(5) requires a defendant to dis-
close all he knows concerning both his involvement and that
of any co-conspirators."). Moreover, even if the court’s state-
ment could somehow be viewed as an indication that the court
had an impermissibly broad view of the disclosure required
when there is no conspiracy, any such error would be harm-
less, given our conclusion that the issue upon which the dis-
trict court based its rejection of the safety valve—Aidoo’s
explanation for his international travels—was properly con-
sidered by the court, whether or not those travels were suffi-
ciently connected to the offense of conviction.

B.

The PSR included a determination by the probation officer
that Aidoo "appear[ed] to meet the criteria" for sentencing
under the safety valve. J.A. 104. The Federal Rules of Crimi-
 UNITED STATES v. AIDOO 17
nal Procedure require objections to the PSR to be filed within
fourteen days of receipt of the PSR, see Fed. R. Crim. P.
32(f)(1); neither the government nor Aidoo filed any formal
objections to the PSR. Six days before sentencing, however,
the government filed its sentencing memorandum objecting to
application of the safety valve.

On appeal, Aidoo contends that the district court erred by
entertaining the government’s untimely objection to the
PSR’s safety-valve determination. Aidoo did not raise the
timeliness of the government’s objection below, and we there-
fore review the claim for plain error only. To obtain relief
under plain-error review, Aidoo must first establish that "the
district court erred, that the error was plain, and that it
affected his substantial rights." United States v. Robinson, 627
F.3d 941, 954 (4th Cir. 2010) (internal quotation marks and
alterations omitted). "Even when this burden is met, we have
discretion whether to recognize the error, and should not do
so unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings." United States v.
Hargrove, 625 F.3d 170, 184 (4th Cir. 2010) (internal quota-
tion marks omitted), cert. denied, 80 U.S.L.W. 3189 (U.S.
Oct. 3, 2011) (No. 11-5287).

As an initial matter, it is not entirely clear that the time lim-
its of Rule 32(f)(1) constrain the government’s ability to chal-
lenge a defendant’s eligibility for safety-valve sentencing.
The safety-valve statute requires the district court to give the
government an opportunity to express its views about the
applicability of the statute, see 18 U.S.C. § 3553(f) (court
must "impose a sentence . . . without regard to any statutory
minimum sentence, if the court finds at sentencing, after the
Government has been afforded the opportunity to make a rec-
ommendation," that defendant satisfied the statutory require-
ments (emphasis added)), and it is not apparent to us that the
court’s statutory obligation to seek out the government’s
views should be affected by the government’s failure to
timely object to a PSR’s safety-valve recommendation.
18 UNITED STATES v. AIDOO
In any event, assuming the time limits of Rule 32(f)(1)
apply, we note that the district court under Rule 32 has the
authority to change the time limits for good cause. See Fed.
R. Crim. P. 32(b)(2). Given Aidoo’s failure to question the
timeliness of the government’s objection, the district court’s
decision to hear the government’s objection may be treated as
an implicit finding of the existence of good cause. See United
States v. Archuleta, 128 F.3d 1446, 1452 n.12 (10th Cir.
1997) ("[N]o explicit finding of good cause is necessary"
when defendant failed to contemporaneously object to consid-
eration of government’s untimely objection to recommenda-
tion in PSR.). It seems to us that, if nothing else, the
government’s right under the statute to express its views on
the applicability of the safety valve would constitute good
cause to modify the time limits and treat the government’s
sentencing memorandum as timely filed. Aidoo, however,
does not even attempt to argue against the existence of good
cause, and he therefore has failed to establish that the district
court erred, much less plainly erred, by hearing the govern-
ment’s views on his safety-valve eligibility.

Moreover, even if Aidoo could satisfy the first three prongs
of the plain-error standard, the claimed error in this case is not
sufficiently serious to require us to exercise our discretion to
correct it. See Robinson, 627 F.3d at 959 ("Plain error review
exists to correct only the most grievous of unnoticed errors.").
As previously discussed, the district court was statutorily
required to make an independent determination of Aidoo’s
eligibility, and Aidoo bore the burden of proving to the dis-
trict court that he had satisfied the requirements of § 3553(f).
Neither the court’s obligation to independently determine
Aidoo’s eligibility nor Aidoo’s obligation to prove his eligi-
bility was affected or relieved by the unobjected-to recom-
mendation in the PSR. See United States v. McLean, 951 F.2d
1300, 1302-03 (D.C. Cir. 1991) (A defendant seeking an
acceptance-of-responsibility reduction "must be prepared to
carry his burden of convincing the court by a preponderance
of the evidence that he is entitled to it. The favorable recom-
 UNITED STATES v. AIDOO 19
mendation of the probation officer does not relieve him of the
burden. Neither does the government’s failure to object."
(citation omitted)); United States v. White, 875 F.2d 427, 431
(4th Cir. 1989) (district court’s decision to give acceptance-
of-responsibility reduction "is not controlled by the presen-
tence report recommendation, nor is the district court required
to apply it simply because the government did not specifically
object to its proposed application").

Accordingly, whether or not the government formally
objected, Aidoo was obligated by the operation of § 3553(f)
itself to come to court prepared to prove his entitlement to
safety-valve sentencing by convincing the district court that
he had provided complete, truthful disclosure to the govern-
ment. While Aidoo now contends that he would have been
"better positioned" to respond to the government’s views if
the government had filed a timely, formal objection to the
PSR, the government’s opposition to safety-valve sentencing
was known throughout the proceedings. The government
informed Aidoo at the end of the proffer session that it did not
believe he qualified under the statute, the plea agreement
spelled out the government’s opposition to safety-valve sen-
tencing, and the government reiterated that opposition in its
sentencing memorandum filed six days before sentencing.
Aidoo did not argue below that he needed additional time to
gather evidence to counter the government’s position or other-
wise suggest that he was surprised by the government’s oppo-
sition to application of the safety valve. And even on appeal,
Aidoo identifies no argument that he would have made or evi-
dence that he would have presented to support his claim of
truthful disclosure if the government had filed a formal objec-
tion to the PSR that was timely under Rule 32(f)(1).

Under these circumstances, we cannot conclude that the
fairness, integrity or public reputation of judicial proceedings
was seriously affected by the district court’s decision to con-
sider the government’s views notwithstanding the govern-
ment’s failure to file a timely formal objection to the PSR’s
20 UNITED STATES v. AIDOO
safety-valve recommendation. See Hargrove, 625 F.3d at 184.
Aidoo has thus failed to carry his burden under plain-error
review of establishing that he is entitled to relief for the
asserted Rule 32 error. See United States v. Byers, 649 F.3d
197, 213 (4th Cir. 2010) ("Plain error review is strictly cir-
cumscribed, and meeting all four prongs is difficult, as it
should be." (internal quotation marks and alteration omitted)),
cert. denied, 80 U.S.L.W. 3238 (U.S. Oct. 17, 2011) (No. 11-
6371).

IV.

To summarize, we reject Aidoo’s claims that the district
court applied the wrong legal standard and that the govern-
ment’s failure to timely object to the PSR should have pre-
cluded the court’s consideration of the government’s
objection to application of the safety valve. We likewise reject
Aidoo’s challenges to the district court’s denial of relief under
§ 3553(f). Aidoo bore the burden of proving that he had pro-
vided truthful and complete disclosure to the government, but
he presented no evidence compelling such a conclusion. The
district court committed no error when concluding that
Aidoo’s international-clothes-buying story was false, and that
conclusion provided a proper basis for the court’s rejection of
Aidoo’s claim that he was entitled to sentencing under the
safety valve. Accordingly, we hereby affirm Aidoo’s sen-
tence.

AFFIRMED

GREGORY, Circuit Judge, dissenting:

Mr. Aidoo challenges the district court’s standard of eligi-
bility for safety valve relief under 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2(a) and the court’s failure to apply the provi-
sion to his sentencing.

Both at the scene of his arrest and during his safety valve
proffer, Aidoo provided all information he could to the gov-
 UNITED STATES v. AIDOO 21
ernment about the source of the narcotics he ingested, his
travel itinerary, his destination, his contact in the United
States, his promised compensation, and the quantity of narcot-
ics involved in his offense. Despite his exhaustive proffer, the
district court deemed Aidoo ineligible for the safety valve
based upon the government’s speculation that Aidoo was
untruthful about previous travel on his passport and that this
previous travel must have been related to the instant offense.
More is required under the law than such conjecture. As such,
I respectfully dissent.

I.

At best, the record in this case supports the government’s
speculation that Aidoo was less than truthful about his past
international travel. Lying about irrelevant prior activities,
however, does not impact a § 5C1.2 determination. See
United States v. Miller, 179 F.3d 961, 968 (5th Cir. 1999). As
such, even where the district court credits a claim of untruth-
fulness, it is still tasked with determining whether the alleg-
edly less-than-truthful assertions caused the defendant to
forfeit his right to application of the safety valve provision.

With regard to this determination, the district court held
that "if Aidoo was an experienced heroin smuggler, then he
was required to advise the government of that fact and explain
his experience . . . ." (emphasis added). This overbroad read-
ing of § 5C1.2 required Mr. Aidoo to do much more than is
required under the law. Contrary to the district court’s conten-
tion, Aidoo was not required to "come clean" to the govern-
ment about all prior illegal activity. To secure safety valve
relief, a defendant must only "truthfully provide . . . all infor-
mation 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 . . . ." U.S.S.G. § 5C1.2(5) (empha-
sis added).

Although § 5C1.2 does not define "course of conduct" or
"common scheme or plan," the advisory guidelines do. Under
22 UNITED STATES v. AIDOO
the advisory guidelines, offenses are part of a "common
scheme or plan" when they are "substantially connected to
each other by at least one common factor such as common
victims, common accomplices, common purpose or similar
modus operandi." U.S.S.G. § 1B1.3, comment. (n.9(A)). "Of-
fenses that do not qualify as part of a common scheme or plan
may qualify as part of the same course of conduct if they are
sufficiently connected or related to each other as to warrant
the conclusion that they are part of a single episode, spree, or
ongoing series of offenses." Id. at comment. (n.9(B)). Factors
appropriate to this determination include the degree of simi-
larity of the offenses, the regularity of repetitions of the
offenses, and the time interval between the offenses. Id.

In this case, a conclusion that Aidoo’s false proffer
defeated safety valve reduction requires three determinations:
(1) that Aidoo lied about international travel, (2) that Aidoo’s
lies about international travel were in fact lies about prior
involvement with drug activity, and (3) if so, that these prior
drug activities qualify as part of the "same course of conduct"
or "common scheme or plan" as the offense of conviction.

As to the first determination — whether Aidoo did in fact
lie in his proffer—the district court credited the government’s
speculation that Aidoo was untruthful about previous travel
on his passport because his explanation for how he afforded
the travel was implausible. Aidoo is a dual-citizen of the
Netherlands and Ghana. His passport reflects various travel
stamps that indicate entry into and exit from Ghana. When
asked to justify the reasons for his past international travel,
Aidoo explained that he purchased clothing in European
nations for resale in Africa. The government cited its disbelief
of Aidoo’s justification by summarily contending it is impos-
sible to make money in this fashion. Absent data or other
empirical evidence, the district court credited this speculation
as grounds for denying safety valve relief.

Even assuming for the sake of argument that Aidoo did lie
about his reasons for past travel, there is no detail in the
 UNITED STATES v. AIDOO 23
record regarding Aidoo’s prior travel activities, apart from
passport stamps and an "implausible" explanation, to support
the necessary inference that Aidoo’s travel must have been
related to drug activities. Aidoo could have been lying about
smuggling clothing or his involvement in any number of ille-
gal or legal activities of no relevance to the safety valve deter-
mination. The fact that Aidoo failed to sufficiently justify
prior stamps in his passport does not support the district
court’s leaping inference that Aidoo is "an experienced heroin
smuggler" — an assumption upon which the district court
relied in articulating its standard of eligibility for safety valve
relief.

Finally, even if we were to credit the government’s claim
that Aidoo’s acknowledgment of the prior drug intelligence in
his plea agreement was somehow an admission that he had
been involved in drug smuggling before — a point Aidoo
vehemently denies — there is still no detail about this alleged
prior drug activity that would permit the district court to make
the third necessary determination to deny safety valve relief.
Nothing is present in the record about this speculated prior
activity that would permit the district court to determine
Aidoo lied about an incident that was part of the "same course
of conduct or a common scheme or plan" as required by the
Guidelines. U.S.S.G. § 5C1.2(5). A recommendation to deny
safety valve relief cannot simply rest on a claim — even a
substantiated one — that a defendant was involved in past
drug activity. Miller, 179 F.3d at 964.

In that respect, the instant matter bears striking resem-
blance to our sister circuit’s decision in Miller. While Miller
is not controlling precedent, it certainly is persuasive. In Mil-
ler, the defendant was convicted of possession with intent to
distribute cocaine for the possession of over two kilograms of
cocaine. Id. at 963. Unlike Aidoo, the Miller defendant had a
documented history of significant involvement in drug sales.
Id. Regardless, during his safety valve proffer, Miller denied
prior involvement in the sale or distribution of drugs and fur-
24 UNITED STATES v. AIDOO
ther claimed that he had learned how to dry cocaine for the
first time before his arrest for the offense of conviction.
Unlike the instant matter, the Miller defendant did "not con-
test the district court’s conclusion that he lied about his prior
drug activities." Id. at 965. Instead, he maintained that "he
was not required to divulge information about the two previ-
ous drug-related incidents because they were not ‘part of the
same course of conduct or of a common scheme or plan’ as
required by the Guidelines." Id. In response, the government
provided numerous documented similarities between the
offense of conviction and the previous drug activity. Id.

Despite these factually supported connections and the fact
that the Miller defendant had plainly lied, the Fifth Circuit
held that because the "prior drug activities were not substan-
tially connected or sufficiently related to the offense of con-
viction, they did not constitute a common scheme or plan or
the same course of conduct within the meaning of
§ 5C1.2(5)." Id. at 965-66. The court also noted that "[i]n
determining sufficient connection [between offenses], a court
may consider, inter alia, the following factors: (1) the degree
of similarity between the offenses; (2) the regularity or repeti-
tions of the offenses; and (3) the time interval between the
offenses. Id. at 966 (internal citation omitted). Finding that the
government failed to connect the previous drug activity with
the count of conviction, the Fifth Circuit held that the lower
court erred in finding that the defendant’s false proffer
defeated a safety valve reduction. The same result is war-
ranted even more so here. Based on virtually no record, the
district court concluded that Aidoo’s explanation of his previ-
ous travel must have been false, that this travel must have
been related to drug smuggling trips, and that these smuggling
trips must have been related to the offense of conviction. Even
if we were to credit the district court’s first two leaping infer-
ences, the government still failed to provide sufficient facts
regarding these speculated previous smuggling trips for the
sentencing judge to gauge the similarity of the offenses and
affirmatively connect them to the count of conviction as
 UNITED STATES v. AIDOO 25
required by the Guidelines. Absent evidence, this multi-
layered speculation is insufficient to defeat the statutory enti-
tlement of safety valve relief. Moreover, the district court’s
mistaken belief that it could not give Aidoo safety valve credit
if he didn’t "come clean" about speculated previous offenses
cannot form the basis for safety valve denial.

II.

For the reasons set forth above, Aidoo’s sentence should be
vacated, and the case should be remanded to the district court
for resentencing with instructions to apply the safety valve
provision.