USCA1 Opinion
[Not for Publication]
United States Court of Appeals
For the First Circuit
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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.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Luis Rafael Rivera, by Appointment of the Court, for appellant
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Reynaldo Gonzalez-Vega.
Miguel A.A. Nogueras-Castro, by Appointment of the Court, with
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whom Benicio Sanchez-River, Federal Public Defender and Carol A.
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Vazquez-Alvarez, Assistant Federal Public Defender, were on brief for
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appellant Santos Otero-Rolon.
Jacabed Rodriguez Coss, Assistant United States Attorney, with
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whom Guillermo Gil, United States Attorney, and Jose A. Quiles,
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Assistant United States Attorney, were on brief for appellee.
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MAY 1, 1997
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STAHL, Circuit Judge. Defendants-appellants
STAHL, Circuit Judge.
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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
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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.
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5C1.2. Finding no clear error in the court's sentencing
determination, we affirm.
I.
I.
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Pertinent Facts and Prior Proceedings
Pertinent Facts and Prior Proceedings
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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.
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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
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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.
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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.
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Discussion
Discussion
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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
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men met the first four of the criteria. See 18 U.S.C.
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3553(f)(1)-(4). In dispute is the fifth criterion, which
requires a defendant to "truthfully provide[] to the
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Government all information and evidence the defendant has"
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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,
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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
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States v. Miranda-Santiago, 96 F.3d 517, 527 (1st Cir. 1996).
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"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).
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Previously, we have found clear error in the denial
of safety valve relief where "the government did not rebut
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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).
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[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
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"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.
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We consider the facts and legal challenges with
respect to each defendant in turn.
A. Otero-Rolon
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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
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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.
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provide all information to the government within the meaning
of 3553(f)(5). See United States v. Wrenn, 66 F.3d 1, 3
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(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,
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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-
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Santiago, Otero-Rolon's later denials and new explanations
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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
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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
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B. Gonzalez-Vega
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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.
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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
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F.2d 1357, 1358 (1st Cir. 1985); see also Plummer v.
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Springfield Terminal Ry. Co., 5 F.3d 1, 5 (1st Cir. 1993);
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Batistini v. Aquino, 890 F.2d 535, 539 (1st Cir. 1989). We
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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
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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.
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sentencing court's finding that Gonzalez-Vega failed to
satisfy section 3553(f)(5) was reasonable considering the
evidence before it.4
III.
III.
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Conclusion
Conclusion
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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.
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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
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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
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Ruiz, 47 F.3d 452, 455 n.1 (1st Cir. 1995). Furthermore,
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Gonzalez-Vega's failure to furnish a sentencing transcript
thwarts any meaningful analysis of this issue.
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