Filed: Mar. 02, 2018
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 16-4543 _ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Jose Yepez lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Western District of Missouri - St. Joseph _ Submitted: December 11, 2017 Filed: March 2, 2018 [Unpublished] _ Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges. _ PER CURIAM. Jose Yepez pleaded guilty to conspiracy to distribute 500 grams or m
Summary: United States Court of Appeals For the Eighth Circuit _ No. 16-4543 _ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Jose Yepez lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Western District of Missouri - St. Joseph _ Submitted: December 11, 2017 Filed: March 2, 2018 [Unpublished] _ Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges. _ PER CURIAM. Jose Yepez pleaded guilty to conspiracy to distribute 500 grams or mo..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-4543
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jose Yepez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - St. Joseph
____________
Submitted: December 11, 2017
Filed: March 2, 2018
[Unpublished]
____________
Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
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PER CURIAM.
Jose Yepez pleaded guilty to conspiracy to distribute 500 grams or more of
methamphetamine and one kilogram or more of heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846 (“Count 1”); and conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (ii), and (h) (“Count 2”). The
district court1 denied Yepez’s requested safety-valve relief, concluding that Yepez
failed to “truthfully provide[] to the Government all information and evidence [he]
ha[d] concerning the . . . offenses that were part of the same course of conduct or of
a common scheme or plan.” 18 U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(a)(5).
As a result, the district court sentenced Yepez to 120 months’ imprisonment, the
statutory minimum. Yepez appeals the denial of safety-valve relief. We affirm.
I. Background
Yepez pleaded guilty to Counts 1 and 2. Count 1 charged Yepez and ten
codefendants with conspiracy to distribute 500 grams or more of methamphetamine
and one kilogram or more of heroin. The statutory minimum for Count 1 was 120
months’ imprisonment. Count 2 charged Yepez and 13 codefendants with conspiracy
to conceal the drug sale proceeds from the drug-trafficking offenses charged in Count
1.
The unobjected-to facts in the presentence investigation report (PSR) revealed
that Yepez was a mid-level supplier and distributor. His brother, Mario Yepez, was
the primary source for heroin and methamphetamine beginning in January 2011 to
January 27, 2015. Yepez’s specific conduct associated with the conspiracy occurred
between June 2013 and February 2015. The PSR attributed 3,222.55 grams of
methamphetamine and 273.85 grams of heroin to Yepez. Much of the factual
information in the PSR was derived from a confidential informant’s (CI) statement.
The PSR initially determined that Yepez had a total offense level of 31 and a
criminal history category of I. Yepez objected to, among other things, the total
offense level, arguing that he qualified for the safety valve because “he ha[d]
provided a full statement of his involvement at the time of the guilty plea and
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
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otherwise qualifies for Safety Valve.” PSR at 23, United States v. Yepez, No.
5:15-cr-06002-HFS-4 (W.D. Mo. Nov. 4, 2016), ECF No. 231.
Yepez had first provided the government with a typed and signed statement of
his involvement. Then, on the morning of sentencing, Yepez provided a handwritten
statement to the government and the court.2
Before sentencing commenced, counsel, the probation officer, and the district
court met in the jury room to discuss whether Yepez “want[ed] to be more specific
in disclosures.” Sentencing Transcript at 2, United States v. Yepez, No.
5:15-cr-06002-HFS-4 (W.D. Mo. Jan. 6, 2017), ECF No. 272. Defense counsel
acknowledged that Yepez’s handwritten statement was “pretty specific about a couple
of the incidents” but “not pretty specific about every incident involved in this” case.
Id. The government responded that it would give Yepez the opportunity to be more
specific as to the whole conspiracy. But defense counsel replied, “He’s indicated to
me that he doesn’t remember anything other than what he’s written down.”
Id. at 4.
The court then suggested that another factor was potentially influencing Yepez’s
motivation not to provide additional information—Yepez’s “reluctan[ce] to talk about
family members.”
Id. While Yepez had not “directly expressed this” sentiment to
defense counsel, counsel agreed with the district court, stating, “I feel like he is very
reluctant to talk about family. I can ask him again, but I sort of feel like his answer
is not going to change much from the ‘I don’t remember anything other than what
I’ve already provided you.’”
Id. at 5.
After a short break in which the court reviewed Yepez’s statements, the
sentencing commenced. Yepez did not ask for a delay in sentencing to provide
additional information. Defense counsel continued to ask for the safety valve,
2
We granted Yepez’s motion to file under seal the addendum containing these
statements.
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recognizing that Yepez had “provided two statements, one [of which] is pretty general
and vague.” Id. at 8. Defense counsel asked the court to consider the two statements
together as a “full statement of [Yepez’s] . . . participation in the crimes.”
Id. at 9.
The district court concluded that Yepez failed to satisfy the disclosure element
of safety-valve qualification, noting that the defendant failed “to deal with the full
range of information that the government had from confidential informants,” id. at 10,
did not fully acknowledge his involvement with methamphetamine activities, and did
not “recit[e] on his own as much as he remembers with the assistance of the
information that’s been provided in the presentence report,”
id. at 11.
The district court sentenced Yepez to the statutory minimum of 120 months’
imprisonment on each count to be served concurrently.
II. Discussion
On appeal, Yepez argues that the district court clearly erred in denying him
safety-valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a). See United
States v. Delgrosso, 852 F.3d 821, 829 (8th Cir. 2017). Specifically, he contends that
the district court clearly erred in its “findings regarding the completeness and
truthfulness of information” that he provided to the government.
Id. (citation
omitted).
Section 3553(f) and § 5C1.2(a) “allow a district court to impose a sentence
below the statutory minimum sentence if the defendant satisfies each of five
requirements.” Id. (citation omitted). The only issue here is “whether [Yepez]
satisfied the fifth requirement: ‘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.’”
Id. (quoting 18 U.S.C.
§ 3553(f)(5); U.S.S.G. § 5C1.2(a)(5)). We have explained that “a defendant must do
more than disclose the basic facts of his crime” to obtain safety-valve relief. United
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States v. Guerra–Cabrera, 477 F.3d 1021, 1025 (8th Cir. 2007) (citation omitted).
“He must disclose whatever information he has about his offense, and the district
court can hold him accountable for revealing the identities and participation of others
involved in the offense if it could reasonably be expected he would have such
information.”
Id. (citation omitted).
Here, the district court found that Yepez did not satisfy this requirement
because Yepez did no “more than disclose the basic facts of his crime.” Id. Yepez
provided two statements to the government. Defense counsel admitted that one of
those statements was “pretty general and vague.” Sentencing Transcript at 8. As to
the second statement, defense counsel admitted that it was “only pretty specific about
a couple of the incidents. It’s not pretty specific about every incident involved in this”
case.
Id. at 2. This concession matches the district court’s observation that Yepez’s
statements did not “deal with the full range of information that the government had
from confidential informants and others.”
Id. at 10. Defense counsel also agreed with
the district court that Yepez’s motivation not to provide further information was
likely influenced by his reluctance to speak about family members. Defense counsel
stated, “I feel like he is very reluctant to talk about family. I can ask him again, but
I sort of feel like his answer is not going to change much from the ‘I don’t remember
anything other than what I’ve already provided you.’”
Id. at 5.
Having reviewed the record, we find no clear error in the district court’s denial
of safety-valve relief to Yepez.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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