United States v. Pedro Mario Caro-Perez ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14165 ELEVENTH CIRCUIT
FEBRUARY 11, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00156-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO MARIO CARO-PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 11, 2009)
Before HULL, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Pedro Mario Caro-Perez appeals his 87-month sentence for possession with
intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). Caro-Perez argues that he was entitled to a two-level safety-valve
reduction in his offense level pursuant to U.S.S.G. § 2D1.1(b)(11). After review,
we affirm.
I. BACKGROUND
On December 15, 2006, Caro-Perez was arrested after a Richmond Hill,
Georgia police officer observed him driving erratically and speeding while
traveling north on Interstate 95. Caro-Perez had blood on his face and appeared to
have a broken nose. A field sobriety test indicated that Caro-Perez was under the
influence of alcohol. During a search of Caro-Perez’s car, officers found empty
beer bottles, an opened package of beer, $16,760 and 3.9 kilograms of cocaine
divided into four packages. Caro-Perez also had $429.38 on his person. The car
was registered to Lidia Ecira Gonzalez and Jorge Galindo Perez in Phoenix,
Arizona.
The next day, a Georgia Bureau of Investigation (“GBI”) special agent
interviewed Caro-Perez. Caro-Perez told the agent he had traveled from Phoenix
with a man named Javier to visit Javier’s friends in Florida and was en route back
to Phoenix when he took a wrong turn leading him to Richmond Hill, Georgia.
Caro-Perez stated that the cocaine was already inside the car when he entered it
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and denied knowing the source of the cocaine. Caro-Perez also denied that Javier
was involved with the cocaine, but refused to reveal Javier’s location. Caro-Perez
indicated that the car he was driving belonged to a friend in Phoenix.
After pleading guilty, Caro-Perez was interviewed by his probation officer
on October 24, 2007. Caro-Perez admitted that he owned the cocaine found in the
car and was looking to sell it. However, Caro-Perez did not disclose where he got
the cocaine or where he was taking it when he was arrested.
In the Presentence Investigation Report (“PSI”), dated January 14, 2008, the
probation officer recommended that Caro-Perez was ineligible for a safety-valve
reduction because he had not truthfully provided all information he had concerning
his offense. Caro-Perez objected, arguing that he had no additional information.
The probation officer responded that, because Caro-Perez had given inconsistent
statements during his two interviews and had not disclosed the source or
destination of the cocaine, he had not been truthful nor given full disclosure. Caro-
Perez filed a motion requesting an evidentiary hearing so that he could “proffer his
testimony” and the district court could determine whether he had provided truthful
and complete information, entitling him to the safety-valve reduction.
At the February 11, 2008 sentencing hearing, Caro-Perez requested a
continuance “for investigation” and argued that he “did not know enough
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information to provide to the government.” Caro-Perez stated that the continuance
was so the government could “question him to determine whether or not what little
bit of information he has could be useful,” but alternatively asked the district court
“to make that determination in querying him now in order for him to receive that
safety-valve relief.”
The district court denied the continuance request, finding there was no
reason to delay the sentencing. The district court also overruled Caro-Perez’s
objection to the PSI, concluding that the safety-valve requirements had not been
met. The district court adopted the PSI’s calculations of an advisory guidelines
range of 70 to 87 months’ imprisonment and imposed an 87-month sentence. This
appeal followed.
II. DISCUSSION
On appeal, Caro-Perez argues that the district court erred in deny him a
safety-valve reduction without first: (1) making an explicit, independent finding as
to whether Caro-Perez had provided truthful and complete information to the
government; (2) granting Caro-Perez’s request for a continuance so he could be
further debriefed by the government; or (3) permitting Caro-Perez to testify at the
sentencing hearing.1
1
“When reviewing a district court’s safety-valve decision, we review for clear error a
district court’s factual determinations . . . [and] de novo the court’s legal interpretation of
4
The Sentencing Guidelines provide for a two-level reduction to a
defendant’s offense level if he meets the criteria for the safety-valve reduction set
forth in U.S.S.G. § 5C1.2. See U.S.S.G. § 2D1.1(b)(11). The defendant has the
burden to prove his eligibility for safety-valve relief. United States v. Cruz, 106
F.3d 1553, 1557 (11th Cir. 1997).
Of the five safety-valve criteria, the only one at issue in this appeal requires
the defendant “not later than the time of the sentencing hearing” to provide truthful
and complete information “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 shall not preclude
a determination by the court that the defendant has complied with this
requirement.” U.S.S.G. § 5C1.2(a)(5). It is the defendant’s obligation to come
forward and truthfully supply all the information he has relating to his offense, and
the government is not required to solicit information from the defendant. United
States v. Milkintas, 470 F.3d 1339, 1345-46 (11th Cir. 2006) (per curiam). A drug
defendant’s obligation to provide full disclosure includes any “information relating
to the involvement of others and to the chain of the narcotics distribution.” Cruz,
statutes and sentencing guidelines.” United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir.
2006) (quotation marks omitted) (alterations in original). We note that Caro-Perez does not
challenge the district court’s safety-valve ruling on the merits, but rather makes the three
procedural arguments listed above.
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106 F.3d at 1557.
First, we reject Caro-Perez’s contention that the district court failed to make
an independent factual finding as to the completeness and truthfulness of Caro-
Perez’s information. “The question of whether the information [the defendant]
supplied to the government . . . was truthful and complete . . . is a factual finding
for the district court.” United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir.
2000). In other words, the district court may not defer to the government in
making this determination. See United States v. Espinosa, 172 F.3d 795, 796-97
(11th Cir. 1999) (per curiam).
Here, nothing in the record suggests the district court deferred to the
government’s assessment of the truthfulness and completeness of Caro-Perez’s
information. To the contrary, the sentencing transcript shows that the district court
independently found that Caro-Perez had not fully disclosed all he knew about his
drug offense. The district court specifically noted that Caro-Perez possessed a
substantial amount of drugs, which he either obtained from someone else or
brought into the country himself. The district court further noted that the size of
the drugs indicated that the source of those drugs trusted Caro-Perez. In other
words, the district court found incredible Caro-Perez’s claim that he had no
information about where or how he got the drugs. The district court further noted
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that Caro-Perez had ample time (over a year since his arrest) to provide this
information to the government, but had not done so. Thus, the district court
fulfilled its obligation to make an independent finding as to whether Caro-Perez
made a complete and truthful disclosure.2
Second, the district court did not abuse its discretion in denying Caro-
Perez’s request for a continuance or for an evidentiary hearing.3 “If the district
court finds that the factual circumstances warrant a continuance, then it may
continue the sentencing hearing to give the defendant more time to fully debrief
and give a formal safety-valve statement.” United States v. Garcia, 405 F.3d 1260,
1275 (11th Cir. 2005) (per curiam).4 Caro-Perez’s position at sentencing was that
2
To the extent Caro-Perez argues that the district court’s safety-valve ruling is
insufficient to permit meaningful appellate review, we disagree. Reviewing the ruling as a
whole, it is readily apparent the district court found that Caro-Perez did not qualify for a safety-
valve reduction because he did not truthfully provide all the information he had as to his offense.
3
We review for abuse of discretion a district court’s refusal either to continue a
sentencing hearing, United States v. Douglas, 489 F.3d 1117, 1128 (11th Cir. 2007) (per
curiam), or to hold an evidentiary hearing on a sentencing issue, United States v. Gay, 251 F.3d
950, 951 (11th Cir. 2001) (per curiam).
4
Caro-Perez mischaracterizes Garcia. Garcia does not entitle a defendant to a
continuance for additional safety-valve debriefing. Rather, Garcia leaves the decision whether to
grant a continuance to the sound discretion of the sentencing court. See 405 F.3d at 1275
(stating that the district court “may continue a sentencing hearing” if it finds the circumstances
warrant it). Nor has Caro-Perez presented the kind of circumstances found in Garcia–a failure to
fully disclose due to a good faith misunderstanding–that might justify a last minute continuance.
See id. Here, Caro knew on January 14, 2008, a month before the sentencing hearing, that the
government believed Caro-Perez had not made a full disclosure, and thus opposed a safety-valve
reduction, because Caro-Perez did not identify the source or destination of his cocaine.
Nonetheless, at the February 11, 2008 sentencing hearing, Caro-Perez maintained that he did not
have this information.
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he could provide no additional information to the government. Under the
circumstances, we cannot say the district court was required to continue the
sentencing hearing to permit additional debriefing.
Furthermore, Caro-Perez has identified no factual dispute requiring an
evidentiary hearing. The parties did not dispute the contents of Caro-Perez’s
October 2007 safety-valve statement to his probation officer or his December 2007
interview with the GBI agent. Nor did the parties dispute that Caro-Perez claimed
to have no further information. Although Caro-Perez did not make a formal
proffer of his testimony or explain how it would have shown he was entitled to a
safety-valve reduction, it appears from the record that he would have repeated what
he had already told his probation officer. Under the circumstances, we cannot say
the district court was required to hold an evidentiary hearing before ruling on Caro-
Perez’s safety-valve request.
AFFIRMED.
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