United States v. Elba Nubia Paz-Barona ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 27, 2006
No. 05-11182 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20711-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELBA NUBIA PAZ-BARONA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 27, 2006)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Elba Nubia Paz-Barona appeals her 60-month sentence for the importing
100 grams or more of heroin in violation of 21 U.S.C. §§ 952(a) and 960(b)(2).
We find that the district court did not clearly err in finding Paz-Barona ineligible
for safety-valve relief, pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2
(2004), and so imposing the statutory mandatory minimum sentence for her
offense. Accordingly, we AFFIRM.
I. BACKGROUND
Paz-Barona pled guilty, pursuant to a plea agreement with the government,
to importing 100 grams or more of heroin. In a plea agreement, she and the
government agreed that the government, pursuant to U.S.S.G. § 5C1.2 (“safety-
valve”), would recommend to the district court that Paz-Barona be sentenced
within the calculated guideline range without regard to the statutory mandatory
minimum sentence for her offense, “provided that . . . not later than the time of the
sentencing hearing [Paz-Barona] provide[d] to the [government] a written
statement truthfully setting forth all information and evidence she ha[d] concerning
the offense . . . that [was] part of the same course of conduct or of a common
scheme or plan as charged in the indictment.” R1-14 at 3. At Paz-Barona’s plea
hearing, the government and Paz-Barona’s counsel both stated that they believed
the safety-valve provision was likely to apply. R2 at 7. Nevertheless, the court
informed Paz-Barona that, unless the safety-valve provision applied, she would be
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subject to “a mandatory minimum sentence of five years.” Id. Paz-Barona said
that she understood the possible penalties. Id. at 7-8.
According to the presentence investigation done by the probation office,
Paz-Barona and her sister had arrived at the Miami International Airport on a flight
from Cali, Colombia. During an inspection by U.S. Customs and Border
Protection officials, an x-ray revealed that Paz-Barona had foreign objects in her
lower intestine. The officials transported Paz-Barona to a hospital where she
expelled nine pellets that contained 271.5 grams of heroin.
After her arrest, Paz-Barona provided a written acceptance of responsibility.
According to this statement, she and her sister were contacted by some people she
knew, who knew of her difficult financial situation, and, after some discussion, got
her to agree to smuggle the drugs into the country. See R-3 at 4, 7. Based on Paz-
Barona’s offense conduct, the probation officer assigned a base offense level of 26,
pursuant to U.S.S.G. § 2D1.1(c)(7). This was decreased by three, pursuant to
U.S.S.G. §§ 3E1.1(a) and (b), for her acceptance of responsibility and timely notice
of her intent to plead guilty. The probation office also determined, however, that
she had not met the requirements for application of the safety-valve provision.
With an adjusted offense level of 23, and a criminal history category of I, Paz-
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Barona’s resulting guideline range was 46 to 57 months imprisonment, but the
statutory mandatory minimum was five years.
Prior to the sentencing hearing, in response to the finding that Paz-Barona
had not met the requirements for application of the safety-valve provision, her
counsel provided a letter to the government purporting to set forth all the
information Paz-Barona had concerning her offense. This letter was also appended
to Paz-Barona’s filed objections to the presentence investigation report (“PSI”).
See R1-20 Attachment. The letter began by describing how Paz-Barona and her
sister had gone to the airline office to change their flight date due to hurricanes in
Florida. Id. at 1. The letter then stated that:
Upon leaving the American Airlines office, two (2) individuals
approached the sisters from behind, told them not to turn around and
stuck a hard object in their backs. The men demanded them to
continue to walk. They told the sisters they knew where they lived
and how many children they had and that if they did not bring the
packages that they were going to hand them to New York, they or
their children would be killed. The men told the sisters that when they
arrived in New York their representative would retrieve the pellets
from the sisters at their apartment.
Id. According to Paz-Barona’s counsel, the government did not agree that the
letter met the requirements for the application of the safety-valve provision. Paz-
Barona also argued that the PSI ought to have recommended a downward
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departure, pursuant to U.S.S.G. § 5K2.12, because, she asserted, she had smuggled
the heroin as a result of coercion and duress.
At the sentencing hearing, Paz-Barona renewed her objection with regard to
the application of the safety-valve. In support of her argument, Paz-Barona
testified to the circumstances under which she smuggled heroin into the United
States, specifically stating that “[i]t was a person that [she] did not know who
offered [her], due to the fact that this person realized the financial situation that
[she and her sister] were undergoing, this person offered [she and her sister] to
bring the drugs, so [she and her sister] accepted.” R3 at 5. Paz-Barona’s counsel
then stated that, because he did not believe that this testimony was “substantive
enough . . . for the Court to obtain a clear picture,” he and Paz-Barona would rely
on the letter earlier submitted to the government. Id. at 5-6.
The court denied Paz-Barona’s request for application of the safety-valve
provision, explaining that, “[b]ased on the discrepancies between the statements
and the failure to explain in any detail what happened or give the [g]overnment all
the information she has about the offense[,] I find that aspect of the safety-valve
requirement has not been met.” Id. at 7. The court concluded that Paz-Barona’s
offense level was 23, her criminal history category was I, and the applicable
statutory mandatory minimum sentence was 60 months. The court then asked the
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parties if there was any argument to be made that it had “any discretion on this.”
Id. Paz-Barona’s counsel replied,
[t]he only discretion you would have is under a [Fed. R. Crim. P.] 35
type of situation, which I would request the Government make at this
time as a result of Miss Paz Barona supplying them with the letter
dated February eighth, 2005, and seek a reduction in sentence via
substantial assistance motion by the Government.
Id. at 7-8. The government declined to file a Rule 35 motion. The court then
sentenced Paz-Barona to 60 months imprisonment, to be followed by four years
supervised release.
On appeal, Paz-Barona argues that she provided the government with
complete, truthful information concerning her offense, and so the district court
erred in failing to apply the safety-valve provision in imposing her sentence
because she had met all the requirements. She also contends that her sentence is
excessive and unreasonable and, further, that the court erred in failing to grant a
downward departure under § 5K2.12. Finally, she asserts that the court also erred
in failing to consider the factors set forth in 18 U.S.C. § 3553(a).
II. DISCUSSION
“When reviewing the denial of safety-valve relief, we review for clear error
a district court’s factual determinations,” and “[w]e review de novo the court’s
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legal interpretation of the statutes and sentencing guidelines.” United States v.
Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004) (per curiam).
Where a defendant is convicted under 21 U.S.C. § 960, the district court
“shall impose a sentence pursuant to [the sentencing guidelines] without regard to
any statutory minimum sentence, if the court finds at sentencing” that five
enumerated factors are present. 18 U.S.C. § 3553(f). “This provision, as well as
U.S.S.G. § 5C1.2 which employs the same list of factors, is commonly called the
‘safety valve.’” Johnson, 375 F.3d at 1302. As the parties concede, the fifth factor
under these provisions is the only one at issue here. The fifth factor provides:
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 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 or that the Government is already aware of the information
shall not preclude a determination by the court that the defendant has
complied with this requirement.
18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5).
We have determined that this fifth factor “is a ‘tell-all’ provision: to meet its
requirements, the defendant has an affirmative responsibility to ‘truthfully disclose
to the government all information and evidence that he has about the offense and
all relevant conduct.’” Johnson, 375 F.3d at 1302 (citation omitted). “The burden
is on the defendant to come forward and to supply truthfully to the government all
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the information that [s]he possesses about [her] involvement in the offense,
including information relating to the involvement of others and to the chain of the
narcotics distribution.” United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir.
1997).
Here, the record reflects that Paz-Barona submitted two inconsistent
statements with regard to how she became involved in the heroin smuggling
venture. In neither account did she provide any information concerning the
individuals who recruited her participation, nor did she explicitly state that she did
not have any such information. The district court took note of these
inconsistencies and found that, “[b]ased on the discrepancies between the
statements and the failure to explain in any detail what happened or give the
[g]overnment all the information she ha[d] about the offense[,] . . . that aspect of
the safety-valve requirement has not been met.” R3 at 7. Based on the record, it
cannot be said that the district court clearly erred in making this determination.
See Johnson, 375 F.3d at 1302.
Because we have concluded that the district court did not clearly err in
denying Paz-Barona’s request for application of the safety valve, we need not
address her arguments that the district court erred (1) in failing to apply a
downward departure pursuant to U.S.S.G. § 5K2.12; (2) in failing to consider the
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§ 3553(a) factors; or (3) in imposing an unreasonable sentence. Barring safety-
valve relief or a Rule 35 “substantial assistance” motion, the sentencing court
remains bound by the statutory mandatory minimum provided by 21 U.S.C. § 960.
See United States v. Simpson, 228 F.3d 1294, 1302-03 (11th Cir. 2000); see also
United States v. Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005) (confirming
that statutory mandatory minimums remain binding post-Booker). Paz-Barona’s
guidelines range, even without a downward departure, was already below that
mandatory minimum, thus no downward departure could have made any
difference. See Cruz, 106 F.3d at 1555 n.3.
III. CONCLUSION
Paz-Barona appeals her 60-month sentence for the importation of 100 grams
or more of heroin. We find the district court did not clearly err in declining to
apply the safety-valve provisions to her sentence, or in imposing the statutory
mandatory minimum sentence provided for her offense. Accordingly, we
AFFIRM Paz-Barona’s sentence.
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