ROGERS, Circuit Judge:
Appellants Rashaad G. Tate and Richard E. Young challenge their sentences and seek remands for resentencing. Upon reviewing the requirements of Rule 51 of the Federal Rules of Criminal Procedure for preserving error and 18 U.S.C. § 3553(a) for sentencing defendants, and of 18 U.S.C. § 3553(f)(5) for eligibility for safety-valve sentencing, we affirm.
Tate and Young were indicted on a single count of unlawful distribution of five grams or more of cocaine base on May 6, 2008, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and 18 U.S.C. § 2. Tate was also indicted for the same offense committed on May 14, 2008.
The government's evidentiary proffers stated that on May 6, 2008, a confidential informant had called Tate about purchasing 62 grams of crack cocaine. Tate said he would contact Young, and later told the informant where and when to meet Young. When the meeting occurred Young told the confidential informant that he did not have 62 grams at that time and sold 34.3 grams to the informant for $1,200. On May 14, 2008, Tate sold the confidential informant an additional 29.1 grams of cocaine base for $1,000. The proffer regarding Tate also referred to the May 14, 2008 sale and to 178 cell-phone conversations between Tate and Young between April 25, and May 7, 2008. Each proffer stated that it was "not intended to constitute a complete statement of all facts known by [each] defendant or the Government, but is
Tate pleaded guilty to a single count and was sentenced to 100 months' imprisonment and 48 months' supervised release, and was ordered to pay a $100 special assessment. Young also pleaded guilty and was sentenced to the mandatory minimum of 60 months' imprisonment and 60 months' supervised release, and was ordered to pay a $100 special assessment.
Tate contends that he is entitled to a remand for resentencing on three grounds of procedural error, because the district court: (1) mistakenly believed that the 2007 amendment to the crack guideline in the United States Sentencing Guidelines ("U.S.S.G.") had reduced the crack-to-powder disparity from 100 to 1 to a disparity "in the neighborhood" of 20 to 1 when the amendment brought the disparity to 70 to 1 as applied to Tate's offense level
Rule 51 of the Federal Rules of Criminal Procedure provides, in relevant part, that exceptions to the district court's rulings or orders are unnecessary, and that claims of error are preserved when a party informs the district court of the requested action, or of the objection and the grounds therefor.
Tate's counsel informed the district court that he believed the crack-to-powder cocaine disparity was between 60 and 80 to 1, not 20 to 1, and counsel requested imposition of a sentence for Tate no higher than the mandatory minimum pursuant to the district court's discretion to vary from the Guidelines, citing Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009). Having stated the facts and the law regarding the disparity and having requested that the district court exercise its discretion to sentence Tate based on a different crack-to-powder ratio, counsel preserved Tate's first two claims of error and counsel was not obligated to object when the district court rejected his request for a sentence at the mandatory minimum. Our review of these claims, therefore, is for abuse of discretion. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Our review of purely legal questions is de novo, see United States v. Bridges, 175 F.3d 1062, 1065 (D.C.Cir.1999), for "[a] district court by definition abuses its discretion when it makes an error of law," Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). We review the district court's findings of fact for clear error and accord "due deference" to the district court's application of the Guidelines to found facts. See United States v. Erazo, No. 10-3012, slip op. at 5 (D.C.Cir. circulated to the full court December 22, 2010) (internal citations and quotation marks omitted).
Although Tate's first two challenges were properly preserved, he fails to show legal error by the district court on either.
First, prior to accepting his guilty plea, the district court advised Tate that the Guidelines were "just recommendations," and that it would first look to the Guidelines and then proceed to analyze the factors in 18 U.S.C. § 3553(a) to impose a sentence "sufficient but not greater than necessary" to accomplish the goals of sentencing. Tr. 5 (Feb. 27, 2009). When Tate's counsel argued at the sentencing hearing for imposition of the mandatory minimum sentence, the district court challenged counsel's assumption that the disparity between crack and powder cocaine was 100 to 1, noting the Sentencing Commission's amendment to the Guidelines in 2007 and inquiring whether, in view of the two-level reduction in the offense level, the disparity was 20 to 1. Tate's counsel informed the district court that the recalibration had not brought the disparity down to 20 to 1 but "more like between 60 to 80 to 1." Tr. 10 (May 7, 2009). The district court responded, "it's not exactly 20 to 1 as you point out. But it is in that neighborhood." Id.
On the latter sentence, and specifically on the last word, hangs Tate's first claim of error. He contends this statement indicates that the district court misunderstood
The ensuing sentencing proceedings, however, show that unlike in King v. Hoke, 825 F.2d 720 (2d Cir.1987), on which Tate relies, where there was clear evidence that the district court's sentence was motivated by an error of law, id. at 722, the district court's motivation for imposing a within-Guidelines sentence of 100 months was based on Tate's escalating criminal conduct within a brief period of time. Considering Tate's counsel's argument for imposition of the mandatory minimum sentence of 60 months' imprisonment, the district court stated:
Tr. 13-14 (May 7, 2009).
The prosecutor agreed that Tate's criminal conduct, as revealed in his record, constituted a "case specific aggravating factor which justifies opposition to variance," and did not warrant the requested "substantial variance . . . from the [G]uidelines," Tr. 16 (May 7, 2009), notwithstanding statements by Executive Branch officials to Congress that the sentencing disparity should be eliminated. The district court confirmed with the prosecutor that the Commission's 2007 amendment had reduced the guideline range from 121-151 months to 100-125 months and sentenced Tate to 100 months' imprisonment. Tate thus fails to show a legal error by the district court. See United States v. Pickett, 475 F.3d 1347, 1352 (D.C.Cir.2007).
Second, Tate's related claim that the district court erred by failing to appreciate
Finally, Tate fails to show that the district court plainly erred, see Coles, 403 F.3d at 767, in stating that it was "acting on the assumption," Tr. 25 (May 7, 2009), that the Sentencing Commission would implement a retroactive amendment to the crack guideline and that it would not oppose resentencing Tate in that event. He relies on cases arising under Federal Rule of Criminal Procedure 35 where, for example in United States v. Drown, 942 F.2d 55, 59 (1st Cir.1991), the proceedings indicated that the prosecutor's strategy to postpone its evaluation of a defendant's assistance until his services were completed in another proceeding "improperly merge[d] the temporal boundaries" of U.S.S.G. § 5K1.1's reward for presentencing assistance and Rule 35's reward of subsequent assistance. In contrast, the record shows that the district court's reason for not imposing the mandatory minimum sentence on Tate was not premised on its future reduction pursuant to Rule 35, as in United States v. Recla, 560 F.3d 539, 546 (6th Cir.2009), United States v. Barnette, 427 F.3d 259, 262 (4th Cir.2005), and United States v. Bureau, 52 F.3d 584, 595 (6th Cir.1995), but on Tate's "alarming" criminal background. Tr. 14 (May 7, 2009).
Young, also seeking resentencing, contends that the district court erred in ruling that he was required to debrief the government in order to qualify for safety-valve treatment. Our review of this legal question is de novo. See Erazo, No. 10-3012, slip op. at 5.
Section 3553(f) of Title 18 provides for a limitation on the applicability of a mandatory minimum sentence where the district court finds that a defendant meets five conditions. At issue here is the fifth condition which provides:
18 U.S.C. § 3553(f)(5).
The plain text of the statute does not require a debriefing, i.e., a face-to-face interrogation with government prosecutors. Id.; see U.S.S.G. § 5C1.2(a)(5). As several circuit courts of appeal have observed, the statute does not specify the form, place, or manner of disclosure, and a defendant may comply without submitting to a debriefing. United States v. Altamirano-Quintero, 511 F.3d 1087, 1092 n. 7 (10th Cir.2007); United States v. Schreiber,
The government properly acknowledges on appeal that a debriefing is not required to fulfill the disclosure requirements under section 3553(f)(5). See Appellee's Br. 36. Before the district court, however, the government argued that a debriefing was required to qualify for safety-valve sentencing. The district court ruled by order of May 12, 2009 that because "a defendant seeking the benefit of the [s]afety [v]alve must go through the process of talking with he the Government," and Young had not done so, he was not entitled to a sentence below the mandatory minimum. At the subsequent and final hearing, the district court stated:
Tr. 3-4 (June 2, 2009). Before imposing sentence, the district court inquired whether Young wanted time to think about what he wanted to do. Young's counsel, after conferring with his client, advised the district court that "Mr. Young is ready to go forward with sentencing." Id. at 5.
On appeal Young nonetheless contends that the district court imposed an in-person debriefing requirement to qualify for safety-valve sentencing. He points not only to the district court's statement at the initial sentencing hearing but to the district court's statement to Young shortly after the above-quoted statement, in the final minutes of his sentencing hearing, that "you either have to talk to the government, and tell them everything you know, or I will sentence you to the mandatory minimum of 60 months." Id. at 4. Young overreads the district court's last statement about his choice. Where the district court had moments before disavowed a debriefing requirement, the words "talk" and "tell," which have less specific definitions than the word "debriefing,"
Young also contends that but for the asserted debriefing requirement error he would have received safety-valve treatment because his agreement to the government's factual proffer upon entering his guilty plea was all that was required. He acknowledges, however, that he had the burden to establish by a preponderance of evidence that he was entitled to safety-valve relief. See United States v. Gales, 603 F.3d 49, 52-53 (D.C.Cir.2010) (quoting United States v. Mathis, 216 F.3d 18, 29 (D.C.Cir.2000)). Given that he does not dispute that he declined to provide any information to the government, whether by debriefing or otherwise, the district court's conclusion that his stipulation to the government's factual allegations in the plea proffer was neither candid nor complete is not clearly erroneous and its denial of safety-valve sentencing is properly accorded deference.
Generally, a defendant's agreement with the factual allegations in a government plea proffer is considered insufficient to fulfill the requirements of section 3553(f)(5) to the extent it is limited to a recitation of the defendant's own actions in the crime charged, United States v. Gutierrez-Maldonado, 328 F.3d 1018, 1019 (8th Cir.2003), and fails to disclose information about co-conspirators, United States v. O'Dell, 247 F.3d 655, 675-76 (6th Cir.2001); United States v. Wrenn, 66 F.3d 1, 2-3 (1st Cir.1995), much less about the defendant's chain of distribution, United States v. Arrington, 73 F.3d 144, 148 (7th Cir.1996). In Gales, this court took a similar approach, stating that "the district court . . . was entitled to consider the government's point" that during a debriefing the defendant's inability to identify more concretely his supplier was simply not credible "and make reasonable inferences from the evidence." 603 F.3d at 54 (citing Montanez, 82 F.3d 520, where the defendant unsuccessfully relied on a letter to the government about the drug sales while omitting who supplied him with the drugs). In United States v. Evans, 216 F.3d 80, 91 (D.C.Cir.2000), this court affirmed the denial of safety-valve treatment in view of sufficient record evidence that the defendant knew, but had not fully disclosed, inter alia, the nature and source of his drug supply. Accord United States v. Rodriguez, 69 F.3d 136, 143 (7th Cir.1995) (same).
Young responds that the district court erred in foreclosing safety-valve sentencing without first finding that the proffer was incomplete, that there was information beyond the proffer in his possession, or that his account was less than credible. Section 3553(f)(5) requires the district court to determine if the defendant has truthfully provided all information. As the First Circuit explained in United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996), where a defendant had offered "a facially plausible tale of limited involvement":
Id. at 529 (internal citation omitted); accord Gales, 603 F.3d at 52. Further, the court explained, section 3553(f)(5) "does not invite . . . speculation" because "[i]f mere conjecture based on personal relationships could bar application of section 3553(f)(5), [then] in all cases where minor participants knew others more involved, the safety valve provision would be beyond their grasp." Miranda-Santiago, 96 F.3d at 529. As this "was not intended by Congress," the court concluded, the district court's "bare conclusion that [the defendant] did not `cooperate fully,' absent either specific factual findings or easily recognizable support in the record, cannot be enough to thwart [the defendant's] effort to avoid imposition of a mandatory minimum sentence." Id. at 529-30.
There is "easily recognizable support in the record," id. at 529, for the district court to have been unpersuaded that Young had made a full disclosure in the absence of some form of communication to the government. Although Young's memorandum in aid of sentencing stated that "[t]he government was already aware of the codefendant's drug practices, and therefore, there was nothing new for Mr. Young to report," and that he had "told everything that he knew about the May 6, 2008 sale," Mem. in Aid of Sentencing at 4, drug paraphernalia—Pyrex glasses and a scale coated with white residue—was found during a search of Young's residence. Tr. 11 (Feb. 9, 2009). At the initial sentencing hearing Young's counsel offered to provide, in exchange for safety-valve sentencing, additional information regarding "the extent of [Young's] drug selling in the District of Columbia." Tr. 4 (May 8, 2009). Indeed, counsel's statement was equivocal in arguing not that Young did not possess information regarding his supplier but that he was not required to provide such information to the government under section 3553(f)(5). Id. Additionally, the proffer itself made Young's claim implausible. According to the proffer, Young was able to provide and sell 34.3 grams of crack cocaine within a matter of hours of receiving Tate's call. Young either had information about the source of the drugs he sold to the confidential informant or, alternatively, was in a position to say why he had no such information.
Accordingly, we affirm the judgments of conviction.
FED.R.CRIM.P. 51.