Filed: Feb. 25, 2004
Latest Update: Feb. 22, 2020
Summary: 1, § 2D1.1(b)(6) provides that a two-level reduction in the, base offense level for a drug offense shall be awarded if the, defendant meets the safety valve criteria set forth in §, 5C1.2(a)(1 5).who conducted the safety valve interview.the district court not to hold an evidentiary hearing.
Not for publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2170
UNITED STATES,
Appellee,
v.
FELIX RAMONE MARTÍNEZ,
Defendant, Appellant.
_____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Bryan K. Clauson on brief for appellant Felix Ramone Martínez.
Adi Goldstein, Assistant United States Attorney, Kenneth P.
Madden, Assistant United States Attorney, Craig N. Moore, United
States Attorney, on brief for appellee.
February 25, 2004
Per Curiam. Felix R. Martínez pled guilty to conspiring
to distribute and possess with intent to distribute the drug
"ecstasy," and with distributing ecstasy on several occasions. He
appeals from his sentence on the ground that the sentencing court
erred in failing to grant him a two-level decrease in his base
offense level under the "safety valve" provisions of the United
States Sentencing Guidelines. See U.S.S.G. §§ 2D1.1(b)(6) and
5C1.2(a).1 Specifically, Martínez contests the district court's
determination that he had not satisfied the fifth requirement under
§ 5C1.2(a), by "truthfully provid[ing] 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."Id. § 5C1.2(a)(5).
Martínez' initial argument is that the sentencing court erred
in allowing the government to object to the two-level "safety
valve" reduction conditionally proposed in the pre-sentence report
("PSR"). Martínez contends that the government's position that he
had not satisfied the fifth requirement under § 5C1.2(a) amounted
to an untimely objection to the PSR, beyond the fourteen-day period
established under Fed. R. Crim. P. 32(f)(1).
The government's opposition to a two-level reduction under §
1
§ 2D1.1(b)(6) provides that a two-level reduction in the
base offense level for a drug offense shall be awarded if the
defendant meets the "safety valve" criteria set forth in §
5C1.2(a)(1)-(5).
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5C1.2 did not constitute an objection to the PSR. The PSR had
recommended the adjustment only if Martínez complied with §
5C1.2(5). Thus, the government's recommendation that the
adjustment not be granted because Martínez had failed to comply
with § 5C1.2(5) was entirely consistent with the PSR. Therefore,
the recommendation did not run afoul of the 14-day period for
filing objections to the PSR under Fed. R. Crim. P. 32(f)(1). The
sentencing court was concerned about the "safety valve" interview
occurring such a short time before the scheduled sentencing hearing
on August 22, 2002. However, that concern was allayed by
postponing the sentencing until September 3, 2002. There was no
error in the sentencing court's consideration of the government's
opposition to the "safety valve" adjustment.
The second and third arguments advanced by Martínez are that
the sentencing court "failed to make an independent determination
based upon reliable information as to whether the defendant
qualified for the safety valve reduction," in violation of his due
process rights, and erred in determining that he had not complied
with § 5C1.2(5). "The defendant bears the burden of showing that
he has made full disclosure (and, thus, that he is entitled to the
benefit of the safety valve). This burden includes the obligation
of proving to the court that he has provided truthful and complete
information." United States v. Marquez, 280 F.3d 19, 23 (1st Cir.
2002). We "review for clear error the . . . factual determinations
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underlying the question whether a defendant is entitled to such
relief." United States v. Scharon, 187 F.3d 17, 22 (1st Cir. 1999).
Martínez faults the sentencing court for determining that he
had not qualified for the "safety valve" reduction without either
questioning the probation officer about Martínez' apparent non-
compliance with § 5C1.2(5) or hearing testimony from the DEA agent
who conducted the "safety valve" interview. However, Martínez
neither raised these objections at the sentencing nor requested an
evidentiary hearing, thus waiving any claim that it was error for
the district court not to hold an evidentiary hearing. See United
States v. Meade, 110 F.3d 190, 203 (1st Cir. 1997).
Martínez now contends that the sentencing court should not
have arrived at a conclusion regarding his truthfulness until after
Martínez' allocution at sentencing. Be that as it may, "the
deadline for making truthful and complete disclosure is the moment
that the sentencing hearing starts." United States v. Matos, 328
F.3d 34, 39 (1st Cir. 2003). Although Martínez protests that the
guilty-plea hearing and the PSR included full and truthful
admissions by Martínez, we have held that § 5C1.2(5) requires
disclosure to a prosecutor and that statements to a probation
officer are not sufficient. See United States v. Jiménez Martínez,
83 F.3d 488, 495 (1st Cir. 1996).
The sentencing court made its "safety valve" determination
following extensive argumentation from defense counsel; it did not
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merely rely upon the government's recommendation. The court
"identified specific instances in which the proffer fell short" and
it "explained why [it] did not credit the veracity of the
appellant's statement[s]." Marquez, 280 F.3d at 24. The
sentencing court considered the statements Martínez made during his
safety valve interview in the context of the information presented
at the change-of-plea hearing, as well as in the PSR, then found
that Martínez had been untruthful in these two respects.
First, the court noted that Martínez had admitted, during the
change-of-plea proceeding, to knowingly participating in the
charged conspiracy to distribute ecstasy and to the specific
charged offenses, including the August 7, 2001 transaction.
However, at the "safety valve" interview, he had denied any knowing
participation in the August 7 transaction, maintaining that "he had
no idea this involved drugs or a drug deal." The sentencing court
supportably found that the denial was "incredible," given that
Martínez had already admitted to knowing participation in the
August 7, 2001 transaction, and that prior to August 2001, he had
been arrested for dealing ecstasy with Anglon. That finding was
not clearly erroneous.
Second, the sentencing court found that Martínez had been
untruthful in stating: "I don't keep samples on me, I don't sell
drugs," in response to the government's question at the "safety
valve" interview about providing Agent Cruz with the .27 gram
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sample of heroin. The court construed that response as a denial
that the sample delivery ever took place. Although the response
could have been construed differently, the court's choice between
plausible competing interpretations of the prevailing circumstances
did not constitute clear error. See Scharon, 187 F.3d at 22. The
district court simply found Martínez' denial to be incredible,
based upon the record evidence, as supported by the information in
the PSR regarding the relevant conduct on December 8 and 10, 2001
(to which no objection had been made by Martínez).
The record reveals that the sentencing court made an
independent determination, based upon the evidence before it and
after hearing defense counsel's arguments, that Martínez had not
"truthfully provided" the government with all information and
evidence he had regarding the charged offenses and relevant
conduct. The court did not clearly err in finding that Martínez
failed to satisfy the fifth "safety valve" requirement. See
Marquez, 280 F.3d at 24 (upholding denial of "safety valve"
reduction based upon district court's determination that
"appellant's portrayal of himself as someone who was paid very
little and who knew next to nothing about the details of the
transactions in which he participated beggars credulity"); United
States v. White,
119 F.3d 70, 74 (1st Cir. 1997) (upholding denial
of "safety valve" reduction based upon district court's finding
that "White's 'safety valve' interviews untruthfully minimized her
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role in the conspiracy and disclaimed direct knowledge about the
conspiracy" to which she had pled guilty). "[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.
The sentence is affirmed. See 1st Cir. R. 27(c).
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