[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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