United States v. Cruz

United States Court of Appeals, Eleventh Circuit.

No. 96-2270

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Juan Diego CRUZ, Defendant-Appellant.

March 6, 1997.

Appeal from the United States District Court for the Middle
District of Florida. (No. 95-179-CR-T-21(A), Ralph W. Nimmons,
Jr., District Judge.

Before HATCHETT, Chief Judge, EDMONDSON, Circuit Judge, and
KRAVITCH, Senior Circuit Judge.

KRAVITCH, Senior Circuit Judge:

Juan Diego Cruz was convicted of conspiring to possess cocaine

with intent to distribute, in violation of 21 U.S.C. § 846, and was

sentenced to 120 months' imprisonment. On appeal, he claims that

there was insufficient evidence to support his conviction. He also

challenges his sentence, arguing that the district court erred in

refusing to grant him an offense level decrease pursuant to

U.S.S.G. § 2D1.1(b)(4) 1 and the safety valve provision, 18 U.S.C.

§ 3553(f) and U.S.S.G. § 5C1.2,2 and a base level offense

1
Section 2D1.1(b)(4) grants certain defendants who qualify
for the safety valve a two-point offense level reduction.
2
Section 5C1.2 provides:

In the case of an offense under 21 U.S.C. § 841, § 844, §
846, § 960 or § 963, the court shall impose a sentence in
accordance with the applicable guidelines without regard to
any statutory minimum sentence, if the court finds that the
defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5)
set forth verbatim below:

(1) the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines;
adjustment for acceptance of responsibility pursuant to U.S.S.G. §

3E1.1.3 We AFFIRM.

I.

In the spring of 1995, an undercover agent for the United

States Customs Service, Victor Thompson, arranged with several

individuals to transport 300 kilograms of cocaine into this country

from Colombia. As part of this arrangement, Thompson was to

deliver 202 kilograms of cocaine in Miami to an individual named

Julian. On June 27, 1995, Thompson informed Julian that he would

deliver the cocaine that afternoon at the Westland Mall in Miami.

Thompson told him that Julian, or any individual that Julian sent,

(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 21
U.S.C. § 848; 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
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.
3
Because we find Cruz ineligible for the safety valve, we
need not address his argument that he was entitled to a sentence
reduction for acceptance of responsibility. Cruz was sentenced
to the statutory minimum of 120 months' imprisonment. Therefore,
even if he established eligibility under § 3E1.1, such
eligibility could not affect his sentence.
should look for a person with shoulder length black hair wearing a

black shirt with "Panama" on it. Thompson also informed Julian

that the cocaine would be in a van, concealed in two "caleta."4

That afternoon, appellant Cruz arrived at the Westland Mall

and approached the individual in the "Panama" shirt, Detective

Vincent Rodriguez. Cruz told Rodriguez that he was sent by Julian

and asked where the van was parked. When asked if he wanted to see

the "caleta," Cruz indicated that it was not necessary. After

Rodriguez and Cruz walked through the mall to the van, Rodriguez

told Cruz that the "caleta" was behind the driver's seat. Cruz

responded by saying "Okay, give me the keys." As Cruz was backing

the van out of the parking lot, he was arrested.5 Agents testified

at trial that after his arrest, Cruz told them that he had come

from New York City to pick up the van, but refused to tell the

agents who had told him to pick up the van or where he was planning

to take it.

At trial, Cruz was convicted by a jury. Before sentencing, he

submitted an unsigned written statement to the probation officer

describing his involvement in the offense. This statement was made

an appendix to the presentence report. At sentencing, Cruz

requested application of the safety valve provision so that he

could be sentenced below the 120-month statutory minimum. Finding

4
Thompson and Detective Rodriguez of the Tampa Police
Department both testified that "caleta" is a term commonly used
in the drug trade to refer to concealed compartments in which
narcotics are hidden.
5
The van contained 30 kilograms of cocaine. At sentencing,
Cruz was only held accountable for this amount, and not for the
remainder of the drugs that Thompson agreed to provide Julian.
that Cruz had not truthfully provided to the government all

information he had concerning the offense, the district court

denied his request for relief under U.S.S.G. § 5C1.2.

II.

Cruz first claims that there was insufficient evidence to

support his conviction for conspiring to possess cocaine with

intent to distribute. We review a sufficiency challenge de novo,

viewing the evidence in the light most favorable to the government.

United States v. Mejia, 97 F.3d 1391, 1392 (11th Cir.1996). In

order to sustain a conviction, we must find that the government

proved: (1) that a conspiracy to possess and distribute cocaine

existed; (2) that Cruz knew of the conspiracy's goal; and (3)

that Cruz, with knowledge, voluntarily joined the conspiracy. Id.

Applying these standards, we find sufficient evidence to

support the jury's verdict.6 The evidence demonstrates that Cruz

traveled all the way from New York to Miami to pick up the van,

recognized Detective Rodriguez and identified himself as

representing Julian, and responded with understanding when

Detective Rodriguez described the location of the "caleta" in the

van. When Detective Rodriguez mentioned the "caleta," a term

6
Cruz also claims that the evidence produced at trial
created an impermissible variance from the facts charged in the
indictment. He notes that the indictment stated that the cocaine
conspiracy ended on June 26, 1995, prior to his participation on
June 27. This court will not reverse a conviction based on a
variance "unless the variance was material and substantially
prejudiced the defendant." United States v. Young, 39 F.3d 1561,
1566 (11th Cir.1994). In this case, there was only a one-day
variance. There is no evidence that this discrepancy "undermined
[Cruz's] right to notice of the proper charges or exposed him to
the danger of a second prosecution for the same offense." See
id. at 1568. Therefore, we find no reversible error.
commonly used in the drug trade to describe concealed compartments

in which narcotics are hidden, Cruz responded by asking for the

keys to the van. This evidence demonstrates more than "mere

presence"; it indicates that Cruz had discussed the details of the

transaction with a member of the conspiracy and creates a

reasonable inference that Cruz knew the van contained illegal

drugs.

Second, Cruz argues that the district court erred in ruling

that he did not meet the requirements of the safety valve

provision, 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The

government contends that the district court's decision not to grant

a defendant safety valve relief is not reviewable on appeal. The

appealability of a district court's sentencing decisions is

governed by 18 U.S.C. § 3742(a), which generally allows a defendant

to appeal a sentence if it: (1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of a

sentencing guideline; or (3) exceeds the applicable guideline

range. The government relies on United States v. McFarlane, 81

F.3d 1013 (11th Cir.1996) (per curiam), to argue that § 3742(a)

prohibits Cruz's appeal. In that case, we stated that a defendant

is normally prohibited from appealing a district court's failure to

grant a downward departure from the applicable Sentencing Guideline

range unless the district court believed that it did not have

discretion to grant such a departure. Id. at 1014; see also

United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989) (noting

that question of district court's authority presents reviewable

appeal under § 3742(a)).
 Application of § 5C1.2 does not, however, result in a

departure from the guidelines range. Rather, application of §

5C1.2 allows a defendant to be sentenced within the guideline range

by granting relief from the minimum sentence mandated by statute.

See United States v. Flanagan, 80 F.3d 143, 148 n. 4 (5th

Cir.1996); United States v. Ivester, 75 F.3d 182, 183-84 (4th

Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 2537, 135 L.Ed.2d

1060 (1996). Therefore, the rule articulated inMcFarlane does not

affect the appealability of Cruz's claim of sentencing error.

This circuit has not specifically addressed the appealability

of district court denials of safety valve relief. However, a

recent opinion of this court suggests that such denials are

appealable. See United States v. Agis-Meza, 99 F.3d 1052, 1053 n.

1 (11th Cir.1996) (summarily affirming district court's denial of

safety valve relief from statutory minimum). Moreover, while other

circuits have not directly held that such denials are appealable

under § 3742(a), they uniformly have entertained appeals

challenging the denial of safety valve relief. See, e.g., United

States v. Miranda-Santiago, 96 F.3d 517, 527 (1st Cir.1996);

United States v. Ramirez, 94 F.3d 1095, 1100 (7th Cir.1996);

United States v. Ajugwo, 82 F.3d 925, 929-30 (9th Cir.1996),

petition for cert. filed, (U.S. Oct. 4, 1996) (No. 96-6223);

United States v. Adu, 82 F.3d 119, 121-25 (6th Cir.1996); United

States v. Romo, 81 F.3d 84, 85-86 (8th Cir.1996); Ivester, 75 F.3d

at 183-84; United States v. DeJesus-Gaul, 73 F.3d 395, 397

(D.C.Cir.1996); United States v. Rodriguez, 60 F.3d 193, 195 n. 1

(5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 542, 133 L.Ed.2d
446 (1995).

Section 5C1.2 states that if certain criteria are met "the

court shall impose a sentence in accordance with the applicable

guidelines without regard to any statutory minimum sentence."

(emphasis added). Cruz claims that he has satisfied the criteria

under this section and is thus entitled to be sentenced without

regard to the 120-month mandatory minimum sentence. If his factual

claims are correct, a sentence such as his that was based on the

statutory minimum would be imposed "as a result of an incorrect

application of the sentencing guidelines." 18 U.S.C. § 3742(a)(2).

Likewise, because 18 U.S.C. § 3553(f) directs the court to apply

the sentencing guidelines without regard to the statutory minimum

if the same five criteria are met, such a sentence would also be

"imposed in violation of law." 18 U.S.C. § 3742(a)(1). Therefore,

we hold that we have jurisdiction to review Cruz's claim that the

district court erred in denying him relief under § 5C1.2. We will

review the district court's factual determinations under this

section for clear error. See United States v. Pompey, 17 F.3d 351,

353 (11th Cir.1994).7
In order to be eligible for the safety valve, a defendant must

satisfy the five criteria established in § 5C1.2. Section 5C1.2(5)

requires that a defendant "truthfully provide[ ] to the Government

all information and evidence [he] ha[d] concerning the offense of

offenses that were part of the same course of conduct." Cruz

7
Other circuits uniformly have applied the clear error
standard of review to a district court's factual determinations
under § 5C1.2. See, e.g., Miranda-Santiago, 96 F.3d at 527;
Rodriguez, 60 F.3d at 195 n. 1.
claims that the district court erred in concluding that he failed

to satisfy this criterion,8 pointing to the unsigned letter that he

submitted to the probation officer.9 In this letter, Cruz admitted

that he made some false statements to the agents at the time of his

arrest but reasserted that he did not know the van contained

illegal drugs. He did admit that "his suspicions grew stronger"

that there was something illegal in the van when he was dropped off

at the mall.

A defendant has the burden of proving his eligibility for

relief under § 5C1.2. See Ramirez, 94 F.3d at 1100; Ajugwo, 82

F.3d at 929; cf. United States v. Camargo-Vergara, 57 F.3d 993,

997-98 (11th Cir.1995) (placing burden on defendant to prove

applicability of guideline that would reduce offense level). In

order to satisfy § 5C1.2(5), Cruz "must demonstrate to the court

that he has made a good faith attempt to cooperate with the

authorities." United States v. Arrington, 73 F.3d 144, 148 (7th

Cir.1996). 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

8
The government does not dispute that Cruz satisfied the
other four safety valve criteria.
9
The government argues that by providing a letter to the
probation officer, Cruz did not satisfy § 5C1.2 because he did
not provide this information to the "government." See United
States v. Jimenez Martinez, 83 F.3d 488, 496 (1st Cir.1996)
(holding that "government" in § 5C1.2 does not include probation
officer); Rodriguez, 60 F.3d 193, 195 (5th Cir.1995) (same).
Because we find that the information provided by Cruz, including
the information submitted to the probation officer, is
insufficient to satisfy the requirements of § 5C1.2(5), we need
not address this argument.
of the narcotics distribution. Romo, 81 F.3d at 85.

Based on the record before us, we conclude that the district

court did not clearly err in concluding that Cruz had not met his

burden of demonstrating complete and honest disclosure to the

government. The truthfulness of his post-arrest statements was

undermined by his unsigned written statement. His written

statement, however, provided little new information regarding the

commission of the offense. Moreover, in this written statement,

Cruz continued to deny that he knew that the van contained illegal

drugs. Because there was substantial evidence to suggest that Cruz

knew the van contained illegal drugs, the district court's

conclusion that this statement was untruthful is not clearly

erroneous.

III.

Accordingly, Cruz's conviction and sentence are AFFIRMED.