United States v. Jose Enrique Barreto , 486 F. App'x 16 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10149
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-20345-FAM-3
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JOSE ENRIQUE BARRETO,
a.k.a. Carlos,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 2, 2012)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Jose Barreto appeals his 60-month sentence, imposed after he pleaded guilty
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to conspiracy to distribute 100 grams or more of heroin, in violation of 21 U.S.C.
§ 846. On appeal, he argues that the district court erroneously declined to
consider evidence from Barreto’s investigator when determining whether Barreto
was eligible for safety-valve relief under U.S.S.G. § 5C1.2. For the reasons set
forth below, we affirm Barreto’s sentence.
I.
In 2009, Barreto conspired with Alexis Quiros and Dionide Ramos to sell
heroin to an undercover officer. After Barreto pleaded guilty to conspiracy to
distribute 100 grams or more of heroin, a probation officer prepared a presentence
investigation report. The probation officer did not recommend granting Barreto
safety-valve relief.
At the sentencing hearing, Barreto objected that, among other things, he was
eligible for safety-valve relief. The government stated that Barreto had been
debriefed, but the agents stopped the interview when he refused to identify his
co-conspirators in photographs. Thus, the government opposed granting Barreto
safety-valve relief. Barreto, through counsel, stated that he had told the agents
how he met Ramos and Quiros, described the time he spent living with Ramos,
and stated that a person in Orlando was named Oscar. The government responded
that the agents did not know who Oscar was because Barreto had refused to look
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at the photographs. The court stated that Barreto was not eligible for safety-valve
relief because he had not looked at the photographs, but the court was willing to
hear Barreto testify in open court to resolve the safety-valve dispute.
Barreto stated that his investigator was at the debriefing, and he asked to
admit her report into evidence. He also argued that the agents had already
identified the individuals and obtained their photographs. Barreto informed the
court that he was not willing to testify. The court found that Barreto had not met
his burden to show that he had provided the government with complete and
truthful information regarding the offense, including information as to the
involvement of others. Barreto asked to introduce his investigator’s report, his
investigator’s resume, and the government’s wiretap application, which contained
facts relevant to the debriefing. The court allowed Barreto to file the documents,
but declined to consider them. The court explained that it would only be able to
determine whether Barreto’s statement was truthful if it heard Barreto testify. The
court was unable to make such a finding based on Barreto’s past statements or
based on the investigator’s view of what had occurred during the debriefing.
After the court sentenced him to the statutory minimum sentence of 60
months’ imprisonment, Barreto reiterated his objection that the court should have
heard more evidence. Barreto noted that both his investigator and the
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government’s agent were in court. The government stated that the investigator’s
report did not cover everything that was discussed during the debriefing, and the
government repeated its argument that Barreto had not identified the individuals in
photographs. Barreto agreed that he had refused to look at photographs. The
court again explained that it could only determine whether Barreto’s statement was
complete and truthful after hearing Barreto testify. As the investigator and agent
were not the persons deciding whether Barreto had made a statement that would
render him eligible for safety-valve relief, their opinions were irrelevant. Because
the court was not at the debriefing, a report summarizing that meeting was not
helpful in making that determination.
II.
We review the denial of an evidentiary hearing for an abuse of discretion.
United States v. Hill, 643 F.3d 807, 874 (11th Cir. 2011), cert. denied, 132 S.Ct.
1988 (2012). “A court, by definition, abuses its discretion when it bases a
decision on an erroneous legal premise” or on a clear error in judgment. Id. We
review a district court’s factual determinations regarding safety-valve relief for
clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). The
defendant bears the burden of proving his eligibility for safety-valve relief. Id.A defendant is eligible for safety-valve relief if he meets the five criteria set
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forth in U.S.S.G. § 5C1.2. Cruz, 106 F.3d at 1557. The fifth prong, which is the
only factor in dispute here, requires the defendant to truthfully provide the
government with “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.” U.S.S.G. § 5C1.2(a)(5). Information that the defendant must
disclose includes “information relating to the involvement of others and to the
chain of the narcotics distribution.” Cruz, 106 F.3d at 1557. The defendant even
must disclose information of which the government is already aware. United
States v. Figueroa, 199 F.3d 1281, 1283 (11th Cir. 2000). The district court, not
the government, must make the factual finding as to whether the defendant
provided complete and truthful information to the government. United States v.
Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000).
The district court did not abuse its discretion in declining to consider
evidence from Barreto’s investigator. See Hill, 643 F.3d at 874. To receive
safety-valve relief, Barreto was required to give a statement that was both truthful
and complete. See U.S.S.G. § 5C1.2(a)(5). The district court was required to
make its own determination as to whether Barreto’s statement was truthful. See
Brownlee, 204 F.3d at 1305. The district court’s determination that it needed to
hear Barreto’s version of events, rather than a summary of his statements as
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recounted by an investigator or an agent, was not a clear error in judgment. See
Hill, 643 F.3d at 874. Hearing Barreto testify would have allowed the court to
assess his candor and truthfulness based on his answers and demeanor.
Nor did the court abuse its discretion in determining that Barreto’s
testimony was necessary as to the issue of completeness. See id. Barreto and the
government agreed that Barreto had refused to confirm the identities of individuals
that he had discussed during the debriefing. Such information was required to
obtain safety-valve relief. See Cruz, 106 F.3d at 1557. The court gave Barreto the
opportunity to provide this information, but he declined to do so. Because the
parties agreed that Barreto had not identified the individuals involved in the
conspiracy in photographs, testimony from an investigator or an agent confirming
that fact would not have shed additional light on the situation. Thus, the district
court did not abuse its discretion in declining to consider evidence from Barreto’s
investigator in regards to whether Barreto’s statement was both truthful and
complete.
For the foregoing reasons, we affirm Barreto’s sentence.
AFFIRMED.
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