United States v. Ortero-Rolon

• Court: Court of Appeals for the First Circuit
• Decided: May 1, 1997
• Docket: 96-1312
• Status: Published

Opinion

USCA1 Opinion

[Not for Publication]

                            United States Court of Appeals

                                For the First Circuit

                                 ____________________



        No. 96-1312



                              UNITED STATES OF AMERICA,



                                 Plaintiff, Appellee,



                                          v.



                               REYNALDO GONZALEZ-VEGA,



                                Defendant, Appellant.



        No. 96-1313



                              UNITED STATES OF AMERICA,



                                 Plaintiff, Appellee,



                                          v.



                                 SANTOS OTERO-ROLON,



                                Defendant, Appellant.

                                 ____________________



                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                              and Stahl, Circuit Judge.
                                         _____________



                                 ____________________



            Luis  Rafael Rivera,  by Appointment  of the  Court, for appellant
            ___________________

        Reynaldo Gonzalez-Vega.

            Miguel A.A.  Nogueras-Castro, by  Appointment of  the Court,  with
            ____________________________



whom  Benicio  Sanchez-River, Federal  Public  Defender  and Carol  A.
              ______________________                                 _________

        Vazquez-Alvarez, Assistant Federal Public  Defender, were on brief for
        _______________

        appellant Santos Otero-Rolon.

            Jacabed Rodriguez  Coss,  Assistant United  States Attorney,  with
            _______________________

        whom  Guillermo  Gil, United  States  Attorney,  and Jose  A.  Quiles,
              ______________                                 ________________

        Assistant United States Attorney, were on brief for appellee.


____________________



                                     MAY 1, 1997

                                 ____________________



STAHL, Circuit Judge.  Defendants-appellants
                      STAHL, Circuit Judge.
                             _____________



            Reynaldo Gonzalez-Vega and Santos Otero-Rolon  pleaded guilty



            to  one  count  of aiding  and  abetting  each  other in  the



            possession, with intent to  distribute, of three kilograms of



            cocaine, in violation of 21 U.S.C.   841(a)(1), and 18 U.S.C.



              2.   At sentencing, the  district court  imposed upon  each



            defendant  the  statutory  minimum   term  of  sixty  months'



            imprisonment.  See 21 U.S.C.   841(b)(1)(B).  They now appeal
                           ___



            the  court's finding that they failed to meet the criteria of



            the  "safety  valve"  provision  for  relief  from  mandatory



            minimum sentences.  See  18 U.S.C.   3553(f)(1)-(5); U.S.S.G.
                                ___



               5C1.2.  Finding no  clear error in  the court's sentencing



            determination, we affirm.



                                          I.
                                          I.
                                          __



                        Pertinent Facts and Prior Proceedings
                        Pertinent Facts and Prior Proceedings
                        _____________________________________



                      The  facts as set forth  in the plea agreement, and



            to  which the parties agreed  at the change  of plea hearing,



            are as follows.  On August 21, 1995, postal employees at  the



            Hato  Rey Post Office in  San Juan, Puerto  Rico, noticed two



            suspicious Express  Mail parcels addressed to  Rochester, New



            York.   Upon investigation, both return  addresses were found



            to be nonexistent.   In addition, a U.S. Customs  Canine Unit



            detected  the  presence of  a  controlled  substance in  both



            packages.   Pursuant to a search warrant, the contents of the



            packages  were field  tested  and determined  to be  cocaine.


-2-
                                          2



Postal  agents forwarded  one  package ("package  No. 1")  to



            Rochester,  New  York  for  a controlled  delivery.    Postal



            inspectors retained the other package ("package No. 2") for a



            possible "reverse delivery."



                      Surprisingly, three days later  Otero-Rolon decided



            to effectuate the reverse delivery.  Armed with  the customer



            copy of the Express  Mail receipt, he claimed and  signed for



            package No.  2, which the authorities  had already determined



            contained approximately three kilograms  of cocaine.  At that



            time, a postal inspector surveilling the customer parking lot



            outside  the post  office noticed Gonzalez-Vega  loitering at



            the facility's  exit doors.   Gonzalez-Vega then  entered the



            post office  and made eye contact with  Otero-Rolon.  Moments



            later, both men exited  with package No. 2.   Agents arrested



            the two men and subsequently charged them with respect to the



            drugs  in  that  package.    Post  office  clerks  identified



            Gonzalez-Vega as  the  person who  mailed package  No. 1  and



            Otero-Rolon as the person who mailed package No. 2.



                      Thereafter, both men pleaded  guilty pursuant to  a



            plea  agreement in  which the  parties stipulated  to various



            sentencing recommendations,  including: a base  offense level



            of 28 under  U.S.S.G.    2D1.1, a three  level reduction  for



            their  mitigating roles  in  the offense,  and an  additional



            three level reduction for  acceptance of responsibility.  The



            plea  agreement acknowledged  possible further relief  if the


-3-
                                          3



defendants met  the criteria contained in  the "safety valve"



            provision.  See 18 U.S.C.   3553(f)(1)-(5); U.S.S.G.   5C1.2.
                        ___



                      At the sentencing hearing, the district court found



            the  stipulated base  offense level and  downward adjustments



            applicable to the defendants.  The court determined, however,



            that   neither   Gonzalez-Vega  nor   Otero-Rolon  truthfully



            provided   the  government  all  information  concerning  the



            offense,   as   required   by   18   U.S.C.       3553(f)(5).



            Consequently,  the court declined  to afford either defendant



            any relief  from the statutory minimum  term of imprisonment.



            This appeal ensued.



                                         II.
                                         II.
                                         ___



                                      Discussion
                                      Discussion
                                      __________



                      Gonzalez-Vega  and  Otero-Rolon   argue  that   the



            district  court clearly erred in finding  that they failed to



            meet the five  criteria listed in the safety valve provision.



            That provision, if applicable, requires a sentencing court to



            disregard the statutorily  imposed mandatory minimum sentence



            and impose  sentence pursuant  to the Sentencing  Guidelines.



            See 18 U.S.C.    3553(f).  The government concedes  that both
            ___



            men met  the first  four of  the criteria.   See 18  U.S.C.  
                                                         ___



            3553(f)(1)-(4).   In  dispute is  the fifth  criterion, which



            requires   a  defendant  to   "truthfully  provide[]  to  the
                                           __________



            Government all  information and evidence  the defendant  has"
                       ___


-4-
                                          4



regarding  the  offense.   18  U.S.C.    3553(f)(5) (emphasis



            added).1



                      In order  to qualify  for safety valve  relief, the



            defendant  must persuade the court  that he meets  all of the



            requirements.   See United States  v. Montanez, 82  F.3d 520,
                            ___ _____________     ________



            523 (1st Cir. 1996).  We review  for clear error the district



            court's  factual  determinations   underlying  the   question



            whether a defendant is  entitled to such relief.   See United
                                                               ___ ______



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



            "Where  there  is  more  than  one   plausible  view  of  the



            circumstances,   the   sentencing   court's    choice   among



            supportable  alternatives  cannot   be  clearly   erroneous."



            United States v. D'Andrea, 107 F.3d 949, 958 (1st Cir. 1997).
            _____________    ________



                      Previously, we have found clear error in the denial



            of safety  valve relief where  "the government did  not rebut


____________________



            1.  In full, the fifth criterion requires 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,

                      but the  fact that the  defendant has  no

                      relevant or useful  other 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.



            18 U.S.C.   3553(f)(5).



                                         -5-
                                          5



[defendant's]  facially plausible tale of limited involvement



            by pointing to information  [the] defendant must have known."



            Miranda-Santiago, 96 F.3d at 529.  Thus, a sentencing court's
            ________________



            "bare  conclusion"  that the  defendant  failed to  cooperate



            within the meaning of   3553(f)(5) is insufficient to support



            such a  finding "absent  either specific factual  findings or



            easily recognizable support in the record."  Id.
                                                         ___



                      We  consider  the facts  and legal  challenges with



            respect to each defendant in turn.



            A.  Otero-Rolon
            _______________



                      At his  change  of plea  hearing  and in  his  plea



            agreement,   Otero-Rolon  admitted   that   a  postal   clerk



            identified  him  as having  mailed package  No.  2.   The day



            before the sentencing hearing,  however, at a debriefing with



            the  government, he denied that  he mailed the  package.  The



            court found the later denial incredible and concluded that it



            created  the   likelihood  of  an   absence  of   information



            concerning the  identity of the person who supplied the drugs



            and  other particulars  surrounding the  package.   Presented



            with Otero-Rolon's recantation, the resulting factual vacuum,



            and other  inconsistencies in his informative  proffers,2 the



            district  court  found that  Otero-Rolon  did  not truthfully



                                
            ____________________



            2.  For  example, Otero-Rolon originally  told the government

            that  Gonzalez-Vega  asked him  to pick  up the  Express Mail

            package, then  later stated  that an acquaintance  he chanced

            upon  at a shopping mall hired the two defendants to retrieve

            the parcel.



                                         -6-
                                          6



provide all information to  the government within the meaning



            of    3553(f)(5).  See United  States v. Wrenn, 66  F.3d 1, 3
                               ___ ______________    _____



            (1st Cir. 1995) (explaining  that defendant failed to provide



            "all"  information regarding  convicted offense  where, after



            claiming to have numerous drug customers, defendant "supplied



            nary a name to the government").



                      Unlike  the  sentencing court  in Miranda-Santiago,
                                                        ________________



            here, the court  identified specific and supportable  reasons



            for concluding  that  Otero-Rolon was  neither  truthful  nor



            completely    forthcoming     in    providing    information.



            Furthermore,  contrary to the defendant's proffer in Miranda-
                                                                 ________



            Santiago,  Otero-Rolon's later  denials and  new explanations
            ________



            rendered  his inexplicit  final  version  implausible on  its



            face.  While the court could have found that Otero-Rolon had,



            in  the  end,  provided  the government  with  all  pertinent



            information he had, its rejection of that conclusion reflects



            a readily plausible view of the evidence.  Therefore, we find



            no  clear error  in  the court's  factual determination  that



            Otero-Rolon did not meet the fifth  requirement of the safety



            valve provision.3 



                                
            ____________________



            3.  Otero-Rolon suggests  that the district  court denied him

            the opportunity  to provide  further relevant  information at

            his sentencing  hearing.   He  also intimates  that, had  the

            court queried  him, it would  have found credible  his latest

            version  of the facts surrounding the offense.  Our review of

            the  record  shows  otherwise.   At  the  hearing, the  court

            directly  asked  Otero-Rolon  whether   or  not  he  had  any

            information  to present other than that found in his previous

            submissions.   Otero-Rolon replied that he did not.  The fact



                                         -7-
                                          7



B.  Gonzalez-Vega
            _________________



                      Like  Otero-Rolon,  Gonzalez-Vega  asserts that  he



            truthfully disclosed all information that he might reasonably



            have been expected to possess.  Our review of Gonzalez-Vega's



            contention that  the court's findings were clearly erroneous,



            however,  is  severely hindered  by  his  failure to  provide



            copies of  the sentencing  hearing transcript.   See Fed.  R.
                                                             ___



            App. P. 10(b)(2)  (requiring appellant to provide  transcript



            when  challenging  a  finding  on the  basis  of  evidentiary



            insufficiency).   We have  repeatedly held that,  "[w]here an



            appellant  raises  issues that  are  factually dependant  yet



            fails to provide a transcript of the pertinent proceedings in



            the   district  court,  .  .   .  we  will   not  review  the



            allegations."  Muniz Ramirez v.  Puerto Rico Fire Servs., 757
                           _____________     _______________________



            F.2d  1357,  1358  (1st  Cir.  1985);  see  also  Plummer  v.
                                                   ___  ____  _______



            Springfield  Terminal Ry. Co., 5  F.3d 1, 5  (1st Cir. 1993);
            _____________________________



            Batistini v. Aquino, 890  F.2d 535, 539 (1st Cir. 1989).   We
            _________    ______



            see no reason to depart from that rule in this case.



                      We do note, however, that both the government's and



            Gonzalez-Vega's appellate briefs indicate  that Gonzalez-Vega



            not only told materially  inconsistent stories concerning the



            offense, he may have  purposely withheld information as well.



            On  the record  before  us, we  can  only conclude  that  the



                                
            ____________________



            that the court did not find his final story truthful does not

            mean that  the court deprived Otero-Rolon  of the opportunity

            to render that account.  



                                         -8-
                                          8



sentencing  court's  finding  that  Gonzalez-Vega  failed  to



            satisfy section  3553(f)(5)  was reasonable  considering  the



            evidence before it.4



                                         III.
                                         III.
                                         ____



                                      Conclusion
                                      Conclusion
                                      __________



                      For the  reasons stated above, we  will not disturb



            the  district court's  finding that  the defendants  were not



            entitled  to  relief   under  the  safety  valve   provision.



            Affirmed.
            Affirmed.
            ________


____________________



            4.  At oral argument before this court, Gonzalez-Vega claimed

            that the  district court erroneously denied  him the benefits

            of  the safety  valve  provision because  the information  he

            withheld from  the government concerned conduct  unrelated to

            the charged  offense.  See  Wrenn 66 F.3d at  3 (declining to
                                   ___  _____

            define the scope of the phrase "offense or offenses that were

            part  of the same course of conduct  or of a common scheme or

            plan" within the meaning of 18 U.S.C.   3553(f)(5)).  We will

            not  consider  this  unpreserved contention,  raised  at oral

            argument  for the first  time.  See United  States v. De Leon
                                            ___ ______________    _______

            Ruiz, 47 F.3d  452, 455  n.1 (1st Cir.  1995).   Furthermore,
            ____

            Gonzalez-Vega's  failure to  furnish a  sentencing transcript

            thwarts any meaningful analysis of this issue.



                                         -9-
                                          9