United States Court of Appeals For the First Circuit ________________________
No. 06-2176
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN C. RODRIGUEZ-FERREIRA,
Defendant-Appellant. _____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge] _____________________
Before
Lipez, Circuit Judge, Selya, Senior Circuit Judge, and Howard, Circuit Judge.
Matthew M. Robinson and Robinson & Brandt, P.S.C. on brief, for appellant. Nelson Perez-Sosa, Assistant United States Attorney, and Rosa Emilia Rodriguez-Velez, United States Attorney, on brief for appellee.
June 30, 2008 Howard, Circuit Judge. Pursuant to a written plea
agreement, Juan C. Rodriguez-Ferreira (Rodriguez) pleaded guilty
to a two count indictment for conspiring to distribute in excess
of five kilograms of cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846, and to possession with intent
to distribute approximately thirty kilograms of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). The agreement
stipulated various sentencing base level reductions so long as
Rodriguez met all the safety valve requirements under the
sentencing guidelines. See U.S.S.G. § 5C1.2(a). At the change
of plea hearing Rodriguez was informed, and he acknowledged, that
he could not be sentenced below the mandatory minimum sentence of
120 months unless he satisfied the five requirements of §
5C1.2(a).
It is uncontested that Rodriguez satisfied four of the
five safety valve requirements. The government contends, and the
district court agreed, that Rodriguez did not fulfill the fifth
requirement under 5C1.2(a), and thus Rodriguez did not fulfill
his obligations under the plea agreement. The court imposed a
120 months’ sentence on July 15, 2003. Rodriguez appeals,
raising "the lone question of whether the district court
incorrectly determined that Rodriguez [] did not satisfy each of
-2- the factors under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, the
'safety valve.'"
I. SAFETY VALVE
U.S.S.G. § 5C1.2(a) provides in part:
[T]he 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)... (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 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.
Emphasis added.
We focus on the requirement that Rodriguez was
truthfully to provide all of the information and evidence he had
concerning the offense or offenses not later than the time of the
sentencing hearing.
II. STANDARD OF REVIEW
We review the sentencing court's factual findings
supporting the adverse determination of safety valve eligibility
for clear error. United States v. Marquez, 280 F.3d 19, 22 (lst
Cir. 2002). Our review is thus deferential. Id. at 26. "[A]n
appellate court ought not to disturb either findings of fact or -3- conclusions drawn there from unless the whole of the record
compels a strong, unyielding belief that a mistake has been
made." United States v. Matos, 328 F.3d 34, 40 (1st Cir. 2003).
The district court’s determination of an issue of statutory
interpretation is reviewed de novo. Marquez, 280 F.3d at 22.
III. BURDEN OF PROOF
Rodriguez bears the burden of showing that he made
appropriate and timely disclosures to the government. Id. at 25;
United States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000).
This burden obliges Rodriguez to prove that the information he
supplied in the relevant time frame was both truthful and
complete. Marquez, 280 F.3d at 25. "[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. "Nothing short of truthful and complete disclosure will
suffice [] and, therefore, [] truthful and complete disclosure is
a condition precedent to relief under the safety valve." Id.
"Full disclosure is the price that Congress has attached to
relief under the [safety valve] statute." United States v.
Montanez, 82 F.3d 520, 523 (lst Cir. 1996).
IV. HEARINGS
The government debriefed Rodriguez. Finding his
disclosures lacking, the government filed a notice with the court
-4- that Rodriguez had not complied with § 5C1.2(a). Rodriguez asked
the government to detail the specific areas in which he was not
truthful or complete. The court held a hearing on Rodriguez’s
compliance on October 11, 2002. To assist it in deciding whether
or not Rodriguez was compliant, the court requested memoranda on
the arguments and case law. Subsequently, the court entered an
order denying Rodriguez's request for a second debriefing. But,
in light of the deadline established by § 5C1.2(a), the court
also allowed Rodriguez to submit a writing in compliance by
February 12, 2003. A hearing would then be scheduled, at which
the government would be allowed to give voice to its position on
Rodriguez’s compliance with the safety valve requirement based on
his written statement.
The originally scheduled April 1, 2003, sentencing
hearing was called but was converted into an evidentiary hearing
on Rodriguez’s safety valve compliance. The court questioned
Rodriguez directly. The government, having acquired Rodriguez’s
written statement shortly before the hearing, maintained its
position that Rodriguez had not provided a truthful and complete
statement regarding his criminal offense. Distilled to its
essence, the government had evidence – pilot's logs - indicating
Rodriguez's involvement with approximately 19 flights importing
contraband. Rodriguez had maintained his involvement was limited
-5- to four or five flights, "more or less." The government also had
a notarized statement from co-defendant Domingo Garcia that
indicated Rodriguez was involved in the importation of some 290
kilograms of cocaine. The court asked the government to provide
copies of the pilot's logs that the government maintained proved
Rodriguez was not forthcoming. On April 8, 2003, the government
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United States Court of Appeals For the First Circuit ________________________
No. 06-2176
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN C. RODRIGUEZ-FERREIRA,
Defendant-Appellant. _____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge] _____________________
Before
Lipez, Circuit Judge, Selya, Senior Circuit Judge, and Howard, Circuit Judge.
Matthew M. Robinson and Robinson & Brandt, P.S.C. on brief, for appellant. Nelson Perez-Sosa, Assistant United States Attorney, and Rosa Emilia Rodriguez-Velez, United States Attorney, on brief for appellee.
June 30, 2008 Howard, Circuit Judge. Pursuant to a written plea
agreement, Juan C. Rodriguez-Ferreira (Rodriguez) pleaded guilty
to a two count indictment for conspiring to distribute in excess
of five kilograms of cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846, and to possession with intent
to distribute approximately thirty kilograms of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). The agreement
stipulated various sentencing base level reductions so long as
Rodriguez met all the safety valve requirements under the
sentencing guidelines. See U.S.S.G. § 5C1.2(a). At the change
of plea hearing Rodriguez was informed, and he acknowledged, that
he could not be sentenced below the mandatory minimum sentence of
120 months unless he satisfied the five requirements of §
5C1.2(a).
It is uncontested that Rodriguez satisfied four of the
five safety valve requirements. The government contends, and the
district court agreed, that Rodriguez did not fulfill the fifth
requirement under 5C1.2(a), and thus Rodriguez did not fulfill
his obligations under the plea agreement. The court imposed a
120 months’ sentence on July 15, 2003. Rodriguez appeals,
raising "the lone question of whether the district court
incorrectly determined that Rodriguez [] did not satisfy each of
-2- the factors under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, the
'safety valve.'"
I. SAFETY VALVE
U.S.S.G. § 5C1.2(a) provides in part:
[T]he 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)... (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 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.
Emphasis added.
We focus on the requirement that Rodriguez was
truthfully to provide all of the information and evidence he had
concerning the offense or offenses not later than the time of the
sentencing hearing.
II. STANDARD OF REVIEW
We review the sentencing court's factual findings
supporting the adverse determination of safety valve eligibility
for clear error. United States v. Marquez, 280 F.3d 19, 22 (lst
Cir. 2002). Our review is thus deferential. Id. at 26. "[A]n
appellate court ought not to disturb either findings of fact or -3- conclusions drawn there from unless the whole of the record
compels a strong, unyielding belief that a mistake has been
made." United States v. Matos, 328 F.3d 34, 40 (1st Cir. 2003).
The district court’s determination of an issue of statutory
interpretation is reviewed de novo. Marquez, 280 F.3d at 22.
III. BURDEN OF PROOF
Rodriguez bears the burden of showing that he made
appropriate and timely disclosures to the government. Id. at 25;
United States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000).
This burden obliges Rodriguez to prove that the information he
supplied in the relevant time frame was both truthful and
complete. Marquez, 280 F.3d at 25. "[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. "Nothing short of truthful and complete disclosure will
suffice [] and, therefore, [] truthful and complete disclosure is
a condition precedent to relief under the safety valve." Id.
"Full disclosure is the price that Congress has attached to
relief under the [safety valve] statute." United States v.
Montanez, 82 F.3d 520, 523 (lst Cir. 1996).
IV. HEARINGS
The government debriefed Rodriguez. Finding his
disclosures lacking, the government filed a notice with the court
-4- that Rodriguez had not complied with § 5C1.2(a). Rodriguez asked
the government to detail the specific areas in which he was not
truthful or complete. The court held a hearing on Rodriguez’s
compliance on October 11, 2002. To assist it in deciding whether
or not Rodriguez was compliant, the court requested memoranda on
the arguments and case law. Subsequently, the court entered an
order denying Rodriguez's request for a second debriefing. But,
in light of the deadline established by § 5C1.2(a), the court
also allowed Rodriguez to submit a writing in compliance by
February 12, 2003. A hearing would then be scheduled, at which
the government would be allowed to give voice to its position on
Rodriguez’s compliance with the safety valve requirement based on
his written statement.
The originally scheduled April 1, 2003, sentencing
hearing was called but was converted into an evidentiary hearing
on Rodriguez’s safety valve compliance. The court questioned
Rodriguez directly. The government, having acquired Rodriguez’s
written statement shortly before the hearing, maintained its
position that Rodriguez had not provided a truthful and complete
statement regarding his criminal offense. Distilled to its
essence, the government had evidence – pilot's logs - indicating
Rodriguez's involvement with approximately 19 flights importing
contraband. Rodriguez had maintained his involvement was limited
-5- to four or five flights, "more or less." The government also had
a notarized statement from co-defendant Domingo Garcia that
indicated Rodriguez was involved in the importation of some 290
kilograms of cocaine. The court asked the government to provide
copies of the pilot's logs that the government maintained proved
Rodriguez was not forthcoming. On April 8, 2003, the government
submitted the logs, Garcia's statement, and other evidence.
By order dated June 11, 2003, the district court found
Rodriguez had failed to satisfy the fifth requirement of the
safety valve provisions and was ineligible for sentencing below
the statutory minimum. The sentencing hearing was called again
on July 2, 2003, but was continued until July 15 at Rodriguez's
request. Just prior to the final hearing, Rodriguez filed a
statement in which he confirmed that the pilot log entries were
accurate. His written statement also acknowledged that he had
engaged in several transactions with co-defendant Domingo Garcia
involving approximately 290 kilograms of cocaine. Rodriguez
insists that these admissions fulfilled his obligations under
section 5C1.2(a). The district court was less than impressed,
noting that Rodriguez "had ample opportunity before the
sentencing hearing to disclose information that he had on the
offense, in a timely manner...[a]nd this handwritten statement
-6- file[d] 20 minutes ago or 25 minutes ago is not a timely
disclosure...."
V. DISCUSSION
Rodriguez avers that he is entitled to another bite of
the apple, because under the express language of 5C1.2(a) he need
only provide a complete and truthful debriefing by the time of
the sentencing hearing. The argument fails on two grounds.
First, it ignores the fact that Rodriguez did not provide
complete disclosure by the time of the sentencing hearing.
Second, the safety valve provisions cannot mean that the
district court must let a defendant nibble at the apple so as to
frustrate the imposition of a sentence as justice demands. We
briefly explain.
Rodriguez was debriefed on April 26, 2002. On February 10,
2003, Rodriguez filed additional statements clarifying his
debriefing statements. The first sentencing hearing was
scheduled for and held on April 1, 2003. As far as Rodriguez
knew, he would be sentenced at that time. During the course of
that hearing, Rodriguez was directly examined by the court. The
following exchange took place concerning the declaration filed on
February 10, 2003:
THE COURT: What is stated there, is that all you know concerning this offense or any other scheme related to the offense that you were charged with?
-7- DEFENDANT RODRIGUEZ: This is everything I know about this crime, your honor. Virtually everything I know has been specified here.
Based on the government's contrary evidence the district
court denied the safety valve. In due course, sentencing was set
to proceed further on July 2, 2003, and then again continued to
July 15, 2003. Shortly before the July 15 sentencing hearing was
convened, Rodriguez filed a statement acknowledging as true both
the dramatically different statements of a co-conspirator, as
well as the veracity of the pilot logs. Thus, twice after the
initial sentencing hearing commenced, and after stating under
oath that he had disclosed all he knew, Rodriguez provided new
information and detail.
Even taking the language of 5C1.2(a) on the terms
Rodriguez urges -– that the district court was required to accept
debriefing information up to the time the sentencing hearing
began -- Rodriguez nevertheless plainly had not provided a
complete and truthful disclosure, and he thus defaulted on his
obligation under the plea agreement. The district court clearly
indicated, and the record clearly reflects, that the sentencing
hearing began April 1, 2003. During the course of that hearing –
after the sentencing hearing began – Rodriguez proffered new
information. Again during the July 3, 2003 hearing Rodriguez
attempted to maneuver into a new position, faced with the
-8- information provided by the government. Finally, mere minutes
before the July 15, 2003 continued sentencing hearing began,
Rodriguez yet again proffered new information. Having materially
amended his statement three times after the commencement of the
sentencing hearing, it is all too obvious that Rodriguez had not
been forthright.
In Matos, we held that the deadline for making truthful
and complete disclosure is the moment that the sentencing hearing
starts. Matos, 328 F.3d. 39. See also, United States v. Marin,
144 F.3d. 1085, 1091-92 (7th Cir. 1998); United States v. Long,
77 F.3d 1060, 1062 (8th Cir. 1996)(Per Curiam). Rodriguez's
three day sentencing hearing began April 1, 2003, but even
charitably viewing the hearing as commencing at a later date,
Rodriguez’s statements throughout his interactions with the court
and with the government were, up until the very last moment,
equivocations and half-truths. That the opportunity to provide
information pursuant to the safety valve provisions may become
foreclosed at the start of the sentencing hearing does not mean
that the defendant gets to withhold material information until
that moment. The obligation to provide truthful and complete
information was a continuing one throughout the debriefing
process.
-9- Where, as here, a defendant puts the government on a
starvation diet - providing morsels of information when the
defendant is presented with the truth – he is engaged in artful
manipulation, not complete and truthful disclosure. Rodriguez’s
conduct does not come close to timely straight talk.
The sentence imposed by the district court is affirmed.
-10-