United States v. Hector Perez-Cordova , 260 F. App'x 158 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 14, 2007
No. 07-10731 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20520-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR PEREZ-CORDOVA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 14, 2007)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Hector Perez-Cordova appeals his concurrent 120-
month sentences for conspiracy to possess with the intent to distribute a mixture
and substance containing a detectable amount of cocaine, and attempted possession
with the intent to distribute a mixture and substance containing a detectable amount
of cocaine, both in violation of 21 U.S.C. §§ 841(a)(1), 846. After review, we
affirm Perez-Cordova’s convictions and sentences.
On appeal, Perez-Cordova argues that the district court erred in denying him
safety-valve relief based on Perez-Cordova’s failure to provide complete and
truthful information about his offenses to the government.1
The safety-valve provision requires a district court to calculate the advisory
guidelines range of certain drug offense defendants without regard to any
mandatory-minimum sentence if the district court finds that the defendant meets
the five criteria set forth in U.S.S.G. § 5C1.2. 18 U.S.C. § 3553(f); United States
v. Quirante, 486 F.3d 1273, 1275 (11th Cir. 2007). In addition, a defendant who
meets the safety-valve criteria is entitled to a two-level reduction in his offense
level. U.S.S.G. § 2D1.1(b)(11).
Of the five criteria, the only one at issue in this appeal requires the defendant
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 the statutes
and sentencing guidelines.” United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir. 2006)
(alterations and quotation marks omitted).
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“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 a common scheme or plan. U.S.S.G. § 5C1.2(a)(5); 18 U.S.C. §
3553(f)(5). “The question of whether the information [that 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).
“[L]ies and omissions do not, as a matter of law, disqualify a defendant from
safety-valve relief so long as the defendant makes a complete and truthful proffer
not later than the commencement of the sentencing hearing.” Id. The defendant
bears the burden of proving the truthfulness of his proffer. United States v.
Milkintas, 470 F.3d 1339, 1345 (11th Cir. 2006); United States v. Espinosa, 172
F.3d 795, 797 (11th Cir. 1999).
We find no clear error in the district court’s safety-valve ruling.2 Perez-
2
We reject Perez-Cordova’s contention that the district court’s safety-valve ruling is
insufficient to permit meaningful appellate review. The district court made an explicit finding
that Perez-Cordova did not qualify for safety-valve relief because he did not truthfully provide
all of the information and evidence that he had concerning the offenses and that Perez-Cordova
was not being completely candid about his role in the offenses.
Furthermore, we reject Perez-Cordova’s argument that the district court merely deferred
to the government’s assessment of the truthfulness of Perez-Cordova’s statement. The record
demonstrates that, after reviewing the transcripts of the taped conversations with the
government’s informant and hearing testimony from both Perez-Cordova and his co-conspirator,
Ramon Otero-Montijo, the district court made independent safety-valve findings, specifically
noting that its safety-valve determination was “based on what [it] heard” from Perez-Cordova at
the second sentencing hearing.
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Cordova did not satisfy his burden of proving that his safety-valve statement
truthfully provided the government with all of the information he had concerning
his offense conduct. The government disputed whether Perez’s oral statement,
which was given to the government outside the presence of the district court and
was never reduced to writing, was truthful. In response, Perez-Cordova proffered
his testimony at the sentencing hearing. This testimony, which related to his role
in the drug conspiracy, was inconsistent with other evidence in the record.
First, Perez-Cordova’s sentencing testimony was inconsistent with the facts
to which he stipulated at his change of plea hearing. Specifically, Perez-Cordova
admitted at his change of plea hearing that he asked one of the co-conspirators,
Ramon Otero-Montijo, to drive from Orlando to Fort Lauderdale and instructed
Otero-Montijo to be the driver for a third co-conspirator, Amador Suarez, who was
completing a drug transaction. At sentencing, however, Perez-Cordova testified
that it was Suarez, rather than himself, who asked Otero-Montijo to come to Fort
Lauderdale from Orlando to be Suarez’s driver and told Otero-Montijo about the
upcoming drug transaction. Perez-Cordova did not attempt to reconcile these
inconsistencies or explain which version of events was the truth.
Second, Perez-Cordova’s testimony at sentencing was inconsistent with the
testimony of Otero-Montijo as to whether Perez-Cordova recruited him to join the
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drug conspiracy during a barbeque in Texas. Perez-Cordova did not demonstrate
that his testimony, as opposed to Otero-Montijo’s testimony, was the truth.
Finally, Perez-Cordova’s testimony that he had nothing further to do with the drug
deal or with the government’s confidential informant after his wife was
hospitalized in Texas was inconsistent with the taped telephone conversations
submitted by the government at the sentencing hearing. For all of these reasons,
the district court did not clearly err in discrediting Perez-Cordova’s testimony
when it concluded that Perez-Cordova was not “being completely candid” about
his role in the offenses.
While earlier lies and omissions do not, as a matter of law, disqualify a
defendant from safety-valve relief, here, Perez-Cordova failed to provide any
explanation for his inconsistencies at sentencing. These inconsistencies and the
fact that Perez-Cordova’s sentencing testimony attempted to portray him as playing
a more limited role in the drug conspiracy provided a sufficient basis for the
district court to conclude that Perez-Cordova did not provide complete and truthful
information and to deny Perez-Cordova safety-valve relief.
AFFIRMED.
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