Case: 13-15432   Date Filed: 07/21/2014   Page: 1 of 5


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15432
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:13-cr-00189-VMC-TGW-4



UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                     versus

HUBERT SANTIESTEBAN,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (July 21, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      The sole issue in Hubert Santiesteban’s appeal of the sentences he received

in this drug-trafficking case is whether the District Court erred in denying him

relief under the “safety valve” provisions of the Sentencing Guidelines, U.S.S.G.

§ 5C1.1 Section 5C1.1 provides, in pertinent part:

      (a) Except as provided in subsection (b), 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 below:

      (1) the defendant does not have more than 1 criminal history point, as
      determined under the sentencing guidelines before application of subsection
      (b) of 4A1.3 (Departures Based on Inadequacy of Criminal History
      Category);

      (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 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.

      (b) In the case of a defendant (1) who meets the criteria set forth in
      subsection (a); and (2) for whom the statutorily required minimum sentence
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      is at least five years, the offense level applicable from Chapters Two
      (Offense Conduct) and Three (Adjustments) shall be not less than level 17.

      A superseding indictment, in Count One, charged Santiesteban, Walter

Berrios, Jose Andujar, Fernando Games, Nelson Millan, and Abraham Gonzalez

with conspiring in violation of 21 U.S.C. § 846 to violate 21 U.S.C. § 841(a) by

distributing five kilograms or more of a mixture containing cocaine for a period

ending April 11, 2013, and in Count Two, charged the same individuals, with the

exception of Gonzalez, with intent to distribute and distribution of five kilograms

of cocaine on April 10, 2013, in violation of 21 U.S.C. § 841(a). Santiesteban pled

guilty to both counts, and the District Court, denying him safety-valve relief

because he had not truthfully provided to the Government all the information he

had about the charged offenses, sentenced him to concurrent prison terms of 120

months on Count One and 60 months on Count Two. Santiesteban appeals his

sentences because he disagrees with the court’s finding that he was not

forthcoming as § 5C1.2 requires.

      We use a clear-error standard to review a district court’s factual

determination of whether a defendant qualifies for application of the § 5C1.2

safety-valve provision. United States v. Cruz, 

, 1557 (11th Cir.

1997). “For a finding to be clearly erroneous, this Court must be left with a

definite and firm conviction that a mistake has been committed.” United States v.

Rothenberg, 

, 624 (11th Cir. 2010) (citation omitted) (internal

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quotation marks omitted). As indicated above, the safety-valve provision permits a

district court, if a defendant meets five criteria, to sentence within the relevant

Guidelines range without regard to any statutory mandatory-minimum sentence.

See U.S.S.G. § 5C1.2(a)(1)-(5). The criteria at issue here is the fifth criteria,

whether the defendant truthfully provided the government with “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.” U.S.S.G.

§ 5C1.2(a)(5). To satisfy the requirements of § 5C1.2(a)(5), a defendant must

demonstrate that he has made a good-faith effort to cooperate with the government.

. “The burden is on the defendant to come forward and to

supply truthfully to the government all the information he possesses about his

involvement in the offense, including information relating to the involvement of

others and to the chain of the narcotics distribution.” 

the

truthfulness of a defendant, the district court must independently assess the facts

and may not rely on the Government’s assertion of dishonesty. United States v.

Espinosa, 

, 797 (11th Cir. 1999).

      We conclude that the District Court did not clearly err in denying

Santiesteban safety-valve relief on the ground that he did not provide the

Government complete and truthful information regarding his offenses. The court

had ample evidence before it on which to find that Santiesteban had not been


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forthcoming. Games’s testimony, for example, which the court found credible,

showed that Santiesteban was untruthful. Games testified that Santiesteban sold

him close to 20 kilograms of cocaine and that Santiesteban had talked to him about

supplying cocaine to other buyers, about transporting around 25 kilograms to

Tampa at a time, and about how he had built a trap compartment in his car to hide

the drugs. Games’s testimony contradicted Santiesteban’s statements to Agent

Bessette that all the cocaine he ever sold amounted only to 10 grams and that he

never transported cocaine to Tampa, as Games said he did. Santiesteban’s

arguments to the contrary are contradicted by the record. His proffer to the

Government failed to satisfy § 5C1.2(a)’s fifth criteria; therefore, his sentences are

      AFFIRMED.




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