United States v. Martinez

88 F. App'x 425

• Court: Court of Appeals for the First Circuit
• Decided: February 25, 2004
• Docket: 02-2170
• Status: Published

Opinion

Not for publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit No. 02-2170

UNITED STATES,

Appellee,

v.

FELIX RAMONE MARTÍNEZ,

Defendant, Appellant. _____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Circuit Judge, Cyr and Stahl, Senior Circuit Judges.

Bryan K. Clauson on brief for appellant Felix Ramone Martínez. Adi Goldstein, Assistant United States Attorney, Kenneth P. Madden, Assistant United States Attorney, Craig N. Moore, United States Attorney, on brief for appellee.

February 25, 2004 Per Curiam. Felix R. Martínez pled guilty to conspiring

to distribute and possess with intent to distribute the drug

"ecstasy," and with distributing ecstasy on several occasions. He

appeals from his sentence on the ground that the sentencing court

erred in failing to grant him a two-level decrease in his base

offense level under the "safety valve" provisions of the United

States Sentencing Guidelines. See U.S.S.G. §§ 2D1.1(b)(6) and

5C1.2(a).1 Specifically, Martínez contests the district court's

determination that he had not satisfied the fifth requirement under

§ 5C1.2(a), by "truthfully provid[ing] 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."Id. § 5C1.2(a)(5).

Martínez' initial argument is that the sentencing court erred

in allowing the government to object to the two-level "safety

valve" reduction conditionally proposed in the pre-sentence report

("PSR"). Martínez contends that the government's position that he

had not satisfied the fifth requirement under § 5C1.2(a) amounted

to an untimely objection to the PSR, beyond the fourteen-day period

established under Fed. R. Crim. P. 32(f)(1).

The government's opposition to a two-level reduction under §

1 § 2D1.1(b)(6) provides that a two-level reduction in the base offense level for a drug offense shall be awarded if the defendant meets the "safety valve" criteria set forth in § 5C1.2(a)(1)-(5).

-2- 5C1.2 did not constitute an objection to the PSR. The PSR had

recommended the adjustment only if Martínez complied with §

5C1.2(5). Thus, the government's recommendation that the

adjustment not be granted because Martínez had failed to comply

with § 5C1.2(5) was entirely consistent with the PSR. Therefore,

the recommendation did not run afoul of the 14-day period for

filing objections to the PSR under Fed. R. Crim. P. 32(f)(1). The

sentencing court was concerned about the "safety valve" interview

occurring such a short time before the scheduled sentencing hearing

on August 22, 2002. However, that concern was allayed by

postponing the sentencing until September 3, 2002. There was no

error in the sentencing court's consideration of the government's

opposition to the "safety valve" adjustment.

The second and third arguments advanced by Martínez are that

the sentencing court "failed to make an independent determination

based upon reliable information as to whether the defendant

qualified for the safety valve reduction," in violation of his due

process rights, and erred in determining that he had not complied

with § 5C1.2(5). "The defendant bears the burden of showing that

he has made full disclosure (and, thus, that he is entitled to the

benefit of the safety valve). This burden includes the obligation

of proving to the court that he has provided truthful and complete

information." United States v. Marquez, 280 F.3d 19, 23 (1st Cir.

2002). We "review for clear error the . . . factual determinations

-3- underlying the question whether a defendant is entitled to such

relief." United States v. Scharon, 187 F.3d 17, 22 (1st Cir. 1999).

Martínez faults the sentencing court for determining that he

had not qualified for the "safety valve" reduction without either

questioning the probation officer about Martínez' apparent non-

compliance with § 5C1.2(5) or hearing testimony from the DEA agent

who conducted the "safety valve" interview. However, Martínez

neither raised these objections at the sentencing nor requested an

evidentiary hearing, thus waiving any claim that it was error for

the district court not to hold an evidentiary hearing. See United

States v. Meade, 110 F.3d 190, 203 (1st Cir. 1997).

Martínez now contends that the sentencing court should not

have arrived at a conclusion regarding his truthfulness until after

Martínez' allocution at sentencing. Be that as it may, "the

deadline for making truthful and complete disclosure is the moment

that the sentencing hearing starts." United States v. Matos, 328

F.3d 34, 39 (1st Cir. 2003). Although Martínez protests that the

guilty-plea hearing and the PSR included full and truthful

admissions by Martínez, we have held that § 5C1.2(5) requires

disclosure to a prosecutor and that statements to a probation

officer are not sufficient. See United States v. Jiménez Martínez,

83 F.3d 488, 495 (1st Cir. 1996).

The sentencing court made its "safety valve" determination

following extensive argumentation from defense counsel; it did not

-4- merely rely upon the government's recommendation. The court

"identified specific instances in which the proffer fell short" and

it "explained why [it] did not credit the veracity of the

appellant's statement[s]." Marquez, 280 F.3d at 24. The

sentencing court considered the statements Martínez made during his

safety valve interview in the context of the information presented

at the change-of-plea hearing, as well as in the PSR, then found

that Martínez had been untruthful in these two respects.

First, the court noted that Martínez had admitted, during the

change-of-plea proceeding, to knowingly participating in the

charged conspiracy to distribute ecstasy and to the specific

charged offenses, including the August 7, 2001 transaction.

However, at the "safety valve" interview, he had denied any knowing

participation in the August 7 transaction, maintaining that "he had

no idea this involved drugs or a drug deal." The sentencing court

supportably found that the denial was "incredible," given that

Martínez had already admitted to knowing participation in the

August 7, 2001 transaction, and that prior to August 2001, he had

been arrested for dealing ecstasy with Anglon. That finding was

not clearly erroneous.

Second, the sentencing court found that Martínez had been

untruthful in stating: "I don't keep samples on me, I don't sell

drugs," in response to the government's question at the "safety

valve" interview about providing Agent Cruz with the .27 gram

-5- sample of heroin. The court construed that response as a denial

that the sample delivery ever took place. Although the response

could have been construed differently, the court's choice between

plausible competing interpretations of the prevailing circumstances

did not constitute clear error. See Scharon, 187 F.3d at 22. The

district court simply found Martínez' denial to be incredible,

based upon the record evidence, as supported by the information in

the PSR regarding the relevant conduct on December 8 and 10, 2001

(to which no objection had been made by Martínez).

The record reveals that the sentencing court made an

independent determination, based upon the evidence before it and

after hearing defense counsel's arguments, that Martínez had not

"truthfully provided" the government with all information and

evidence he had regarding the charged offenses and relevant

conduct. The court did not clearly err in finding that Martínez

failed to satisfy the fifth "safety valve" requirement. See

Marquez, 280 F.3d at 24 (upholding denial of "safety valve"

reduction based upon district court's determination that

"appellant's portrayal of himself as someone who was paid very

little and who knew next to nothing about the details of the

transactions in which he participated beggars credulity"); United

States v. White, 119 F.3d 70, 74 (1st Cir. 1997) (upholding denial

of "safety valve" reduction based upon district court's finding

that "White's 'safety valve' interviews untruthfully minimized her

-6- role in the conspiracy and disclaimed direct knowledge about the

conspiracy" to which she had pled guilty). "[A] safety valve

debriefing is a situation that cries out for straight talk;

equivocations, half-truths, and veiled allusions will not do."

Matos, 328 F.3d at 39.

The sentence is affirmed. See 1st Cir. R. 27(c).

-7-