[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                May 2, 2006
                              No. 05-14560                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 04-20900-CR-PAS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JUANIN ALBERTO SUAREZ O'NEILL,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                                (May 2, 2006)

Before BIRCH, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Juanin Alberto Suarez O’Neill appeals his sentence of 210 months of
imprisonment, imposed after he pled guilty to two drug violations. On appeal, he

argues that the district court erred in denying a two-level reduction in his offense

level pursuant to the “safety-valve provision,” U.S.S.G. § 2D1.1(b)(7). He also

claims that the district court improperly deferred to the government’s position at

sentencing in determining his eligibility for the reduction. Finding no reversible

error, we AFFIRM.

                                I. BACKGROUND

      A federal grand jury indicted Suarez O’Neill and three codefendants on one

count each of (1) conspiracy to possess with intent to distribute and (2) possession

with intent to distribute five kilograms or more of cocaine while on board a vessel

subject to the jurisdiction of the United States, in violation of 46 U.S.C. app. §

1903(a) and (j). According to the PSI, Suarez O’Neill and his codefendants were

apprehended by the U.S. Coast Guard in international waters off the coast of

Jamaica after the “go-fast” boat they were operating was spotted without an

identifying flag. The boat refused to stop as directed and the Coast Guard was

forced to pursue. The Coast Guard fired several warning shots across the bow of

the boat, which caused it to stop. At that time, the Coast Guard observed Suarez

O’Neill and his codefendants throwing bales and brick-shaped objects off the boat.

Four large bales and 152 bricks containing approximately 186 kilograms of



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cocaine were recovered from the water. The Coast Guard also recovered a

notebook with coordinates to a meeting spot and a global positioning system. The

boat was sunk after being searched and photographed.

        Suarez O’Neill and his codefendants were transported to the United States

Naval Base at Guantanamo Bay, Cuba, where they were turned over to the Federal

Bureau of Investigation (“FBI”) for transport to Miami, Florida, for processing.

Suarez O’Neill made a statement to the FBI that he and two friends stole a boat

near Barranquilla, Colombia, for purposes of traveling to the United States.

Earlier, he met up with a man from Honduras who agreed to guide the group

through the coastline. When confronted with the fact that the Coast Guard had a

video showing him and his codefendants throwing packages of cocaine in the

water, Suarez O’Neill denied having anything to do with narcotics on the trip. The

government later determined that Suarez O’Neill served as the navigator on the

boat.

        Suarez O’Neill pled guilty to the two counts in his indictment, without the

benefit of a plea agreement. During the plea colloquy, Suarez O’Neill told the

court that he became involved in the offense out of need for money to support his

children, one of whom has a serious illness which requires expensive medical care.

After determining that his guilty plea was knowingly and voluntarily made, the



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district court accepted the plea.

       Prior to sentencing, the Probation Office prepared a Pre-Sentence

Investigation Report (“PSI”). The addendum to the revised PSI in the record

shows that Suarez O’Neill had three objections to the earlier PSI. First, he

objected to a statement of fact that he was the captain of the “go-fast” boat, instead

of the navigator. The error was corrected in the revised PSI. Second, he objected

to the Probation Office’s recommendation that he receive a two-level enhancement

for acting in a managerial/supervisory role, pursuant to U.S.S.G § 3B1.1(c). Third,

Suarez O’Neill objected to the denial of a two-level “safety-valve” reduction,

pursuant to U.S.S.G. § 2D1.1(b)(7). Under the Probation Office’s

recommendations, Suarez O’Neill would have had a total offense level of 39, with

a criminal history category of I, and an advisory Guidelines range of 262 to 327

months of imprisonment.

       At the sentencing hearing in August 2005,1 Suarez O’Neill renewed his

objection to the PSI’s previous recommendation of a two-level enhancement for

his role as a manager/supervisor during the offense. The district court sustained

Suarez O’Neill’s objection to the enhancement based on a finding that there was no

evidence that Suarez O’Neill recruited or hired his codefendants.


       1
       Sentencing in this case occurred after the Supreme Court issued its decision in United States
v. Booker, 

, 

(2005).

                                                 4
      Suarez O’Neill also renewed his objection to the denial of a two-level

“safety-valve” reduction. Suarez O’Neill noted that he made two proffers to

federal law enforcement agents and stated that he was truthful and forthcoming in

those conversations. The court then discussed two possible reductions: a reduction

for “substantial assistance,” pursuant to U.S.S.G. § 5K1.1 and a reduction under

the “safety-valve provision,” U.S.S.G. § 2D1.1(b)(7). Suarez O’Neill agreed that

he did not qualify for a reduction for “substantial assistance,” pursuant to § 5K1.1.

He characterized the dispute over the “safety-valve” reduction as a “difference of

opinion, not a difference of fact” between his view of the evidence and the

government’s view of the evidence. R3 at 21. He noted that he would leave the

issue “in the hands of the Court.” 

overruled his objection and denied

the “safety-valve” reduction, noting that “without the government’s

recommendation that he does satisfy the requirements of the safety valve, the Court

can’t find [that] the defendant is eligible for the safety valve.” 

      The court determined that Suarez O’Neill had a total offense level of 37,

with a criminal history category of I, and an advisory Guidelines range of 210 to

262 months of imprisonment. Before imposing sentence, the court considered a

statement Suarez O’Neill offered in mitigation, in which he apologized for his

conduct and noted that he is the father of eight children, seven of whom are



                                            5
dependent on him for support, including one child with a serious illness. After

reviewing the record and considering the sentencing factors set forth in 18 U.S.C.

§ 3553(a), the court imposed a sentence of 210 months of imprisonment for each

count, each term to run concurrently, and 5 years of supervised release. The court

discussed its obligation to “fashion a sentence that is appropriate for the individual,

takes into consideration the nature of the offense, the need for punishment to

discourage others, . . . [and] that is not disparate with others.” 

The court

also noted that after considering all of the circumstances, the sentence it imposed

was at the low end of the Guidelines range.

                                  II. DISCUSSION

      Pursuant to the Supreme Court’s decision in United States v. Booker, the

Sentencing Guidelines are no longer mandatory. 

, 264, 

, 767 (2005). Although the Guidelines are merely advisory, a district court

must calculate the advisory sentencing range correctly and must consider it when

determining a defendant’s sentence. United States v. Crawford, 

,

1178-79 (11th Cir. 2005). Booker does not alter our previously established

standards of review of the district court’s interpretation of the Guidelines. See 

a district court’s “factual determinations and subsequent denial

of ‘safety valve’ relief for clear error.” United States v. Camacho, 

,



                                           6
1073 (11th Cir. 2001). The district court’s application of the Guidelines is

reviewed de novo. United States v. Garcia, 

, 1274 (11th Cir. 2005)

(per curiam). “A defendant has the burden of proving his eligibility for relief

under U.S.S.G. § 5C1.2.” United States v. Cruz, 

, 1557 (11th Cir.

1997). When a sentence is imposed as the result of an erroneous interpretation of

the Sentencing Guidelines, harmless error analysis is applied. Williams v. United

States, 

, 203, 

, 1120-21 (1992) (applying Federal Rule

of Criminal Procedure 52(a)). Remand is unnecessary if the party defending the

sentence persuades the appellate court that the district court would have imposed

the same sentence absent the erroneous factor. 

Guidelines provide for a two-level reduction in the offense

level for certain drug-related crimes if the defendant meets five criteria as set forth

in U.S.S.G. § 5C1.2(a) and 18 U.S.C. § 3553(f). U.S.S.G. § 2D1.1(b)(7). To

qualify for an offense level reduction under the “safety-valve” provision of the

Sentencing Guidelines, the defendant must show: (1) he does not have more than

one criminal history point; (2) he did not use violence or possess a firearm or other

dangerous weapon during the offense; (3) death or serious bodily injury did not

occur to any person as a result of the offense; (4) he was not an “organizer, leader,

manager, or supervisor of others in the offense” and not engaged in a continuing



                                           7
criminal enterprise; (5) he must truthfully provide the government with all

information and evidence he has concerning the offense. 18 U.S.C. § 3553(f);

U.S.S.G. § 5C1.2(a). The record supports and the parties do not dispute that

Suarez O’Neill meets the first four criteria. The point of contention lies with the

fifth factor under § 5C1.2(a).

      The fifth factor of the “safety-valve” is a “tell-all” provision. Under this

provision, “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. Johnson, 

, 1302 (11th Cir.

2004) (per curiam). However, it is the responsibility of the district court to

determine the truthfulness of the information the defendant provided to the

government. United States v. Espinosa, 

, 797 (11th Cir. 1999) (per

curiam).

      Here, the district court erred when it deferred to the government’s position at

sentencing by concluding that without the government’s recommendation it could

not find that the defendant was eligible. See R3 at 21-22; see also 

. Nevertheless, the district court’s error was harmless because Suarez

O’Neill failed to satisfy his burden to establish his eligibility for “safety-valve”

relief. See 

; see also 

, 

at 1120-21. The record confirms that Suarez O’Neill failed to provide the district

court with a sufficient evidentiary basis to grant “safety-valve” relief. More

specifically, all Suarez O’Neill offered, through his attorney, was a comment to the

district court that he had spoken with government agents on two occasions, and

that he and the government had a difference in opinion on whether he was

forthright and truthful during those discussions. See R3 at 20-22. After that

comment, Suarez O’Neill appeared satisfied to let the district court decide the issue

and provided no additional evidence of his eligibility. 

      Because Suarez O’Neill failed to present sufficient evidence to establish that

he qualified for “safety-valve” relief, we conclude that the district court’s

deference to the government’s position at sentencing was not reversible error.

AFFIRMED.




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