United States v. Jerome Wayne Johnson

                                                                  [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                 FILED
                                                      U.S. COURT OF APPEALS
                             No. 03-13595                ELEVENTH CIRCUIT
                                                             July 12, 2004
                       ________________________
                                                         THOMAS K. KAHN
                                                               CLERK
                D. C. Docket No. 03-00036 CR-J-25-TEM

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

JEROME WAYNE JOHNSON,
a.k.a. Jerald W. Johnson,
a.k.a. Adam Jacoby,
a.k.a. Jerry Wayne Johnson,

                                                     Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (July 12, 2004)

Before EDMONDSON, Chief Judge, TJOFLAT and COX, Circuit Judges.

PER CURIAM:
      Jerome Wayne Johnson appeals his sentence for cultivation of marijuana

plants, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). We affirm.

               I. BACKGROUND AND PROCEDURAL HISTORY

      Pursuant to a warrant, law enforcement officers searched Johnson’s residence

and seized 273 live marijuana plants, as well as equipment and supplies used to grow

marijuana. Johnson was charged with illegally cultivating marijuana, and pleaded

guilty.

      Before sentencing, Johnson voluntarily participated in a debriefing by law

enforcement officers.     While he gave them a detailed analysis of cultivating

marijuana, he refused to tell them what he had planned to do with the marijuana he

had been cultivating.

      At sentencing, the United States and Johnson took opposing views on whether

Johnson should be afforded the benefit of the “safety-valve” provisions of 18 U.S.C.

§ 3553(f) and U.S.S.G. § 5C1.2, and thus be sentenced to less than the statutory

minimum of five years. The district court refused to grant Johnson the benefit of the

safety valve. The court inferred from the number of marijuana plants seized that

Johnson intended to distribute the marijuana. And, the court found that Johnson had

failed to fully disclose all the circumstances of his offense because Johnson had failed

to give authorities information about the intended distribution. Thus, the court denied

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Johnson’s motion for safety-valve relief, and sentenced Johnson to the statutory

minimum of 60 months’ imprisonment. Johnson appeals.

            II. ISSUE ON APPEAL AND STANDARDS OF REVIEW

      Johnson raises a single issue on appeal: whether the district court erred by

denying him the benefit of the “safety-valve” provisions of 18 U.S.C. § 3553(f) and

U.S.S.G. § 5C1.2.

      When reviewing the denial of safety-valve relief, we review for clear error a

district court’s factual determinations. United States v. Cruz, 106 F.3d 1553, 1557

(11th Cir. 1997). We review de novo the court’s legal interpretation of the statutes

and sentencing guidelines. United States v. McAllister, 160 F.3d 1304, 1306 (11th

Cir. 1998); United States v. Williams, 340 F.3d 1231, 1238-39 (11th Cir. 2003).

                     III. CONTENTIONS OF THE PARTIES

      Johnson contends that the district court erred by too broadly defining the scope

of information that must be disclosed to merit safety-valve relief. More specifically,

he maintains that the court incorrectly denied him the benefit of the safety valve

based on his failure to divulge information about the intended distribution of the

marijuana he was growing, as he contends that information about distribution was

unrelated to his offense of cultivation. He argues that he provided all the information




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necessary when the scope of information he was required to disclose is properly

defined with reference to the crime of cultivation.

      The Government contends that the district court properly refused to grant

Johnson safety-valve relief.

                                 IV. DISCUSSION

      Title 18, U.S.C., Section 3553(f) directs a sentencing court to “impose a

sentence pursuant to the guidelines promulgated by the United States Sentencing

Commission . . . without regard to any statutory minimum sentence, if the court finds

at sentencing, after the Government has been afforded the opportunity to make a

recommendation, that” five of five listed factors are present. This provision, as well

as U.S.S.G. § 5C1.2 which employs the same list of factors, is commonly called the

“safety valve.” It applies to a limited number of crimes, and cultivating marijuana in

violation of 21 U.S.C. § 841 is one of them.

      The burden is on the defendant to show that he has met all of the safety valve

factors. Cruz, 106 F.3d at 1557. The last safety-valve factor requires the defendant

to show that:

      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 . . . .



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18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). It was this factor that the district

court concluded Johnson had failed to satisfy.

      This final factor is a “tell-all” provision: to meet its requirements, the

defendant has an affirmative responsibility to “truthfully disclose to the government

all information and evidence that he has about the offense and all relevant conduct.”

United States v. Yate, 176 F.3d 1309, 1310 (11th Cir. 1999). See also U.S.S.G. §

5C1.2, comment. (n.3) (“‘[O]ffense or offenses that were part of the same course of

conduct or of a common scheme or plan,’ as used in subsection (a)(5), mean the

offense of conviction and all relevant conduct.”). Thus, it is the offense for which the

defendant is convicted that determines the scope of information which the defendant

must disclose. United States v. Figueroa, 199 F.3d 1281, 1283 (11th Cir. 2000)

(“This plain language requires a defendant to both truthfully and fully disclose

information within her knowledge relating to the crime for which she is being

sentenced.”); Cruz, 106 F.3d at 1557 (stating that where the defendant was convicted

of conspiring to possess cocaine with intent to distribute, the “burden is on the

defendant to come forward and to supply truthfully to the government all the

information that he possesses about his involvement in the offense, including

information relating to the involvement of others and to the chain of the narcotics

distribution”).

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       Here, Johnson was convicted of cultivating marijuana. An undisputed fact

presented at sentencing was that he was cultivating 273 marijuana plants. Given the

a large number of plants, the district court did not err in reasonably inferring that he

was growing the marijuana for distribution. No reasonable law enforcement officer

investigating this cultivation offense would fail to ask Johnson about the intended

distribution of such a large quantity of marijuana.1 We hold, therefore, that the court

properly determined that information about the intended distribution related to

Johnson’s offense of conviction. And, it is undisputed that Johnson refused to give

law enforcement officers any information about the intended distribution of his

marijuana. Thus, the court did not err by finding that Johnson failed to satisfy the full

scope of disclosure required by the safety-valve provisions.

                                      V. CONCLUSION

       Because the district court committed no error in denying Johnson safety-valve

relief, we affirm Johnson’s sentence.

       AFFIRMED.


       1
         Cf. United States v. O’Dell, 247 F.3d 655, 675-76 (6th Cir. 2001) (vacating district court’s
finding that defendant qualified for safety valve, and remanding for resentencing, where defendant,
convicted of cultivating marijuana and possessing it with intent to distribute, contended that he
merited the safety valve because he answered all the questions the government posed to him, even
though he failed to provide information about marijuana cultivation and distribution outside his own
barn: court noted that this was insufficient because “[t]he government has no obligation to solicit
information that could help a defendant meet the requirements for the safety valve,” and “[t]herefore,
merely answering all questions posed by the government may not be sufficient to qualify for . . . the
safety valve”).

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