United States v. Carlos Rodriguez-Colon ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 15, 2008
No. 07-15806 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00068-CR-ORL-18DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS RODRIGUEZ-COLON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 15, 2008)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Carlos Rodriguez-Colon appeals his 120-month mandatory minimum
sentence, which was imposed after he pleaded guilty to conspiracy to possess with
intent to distribute and to distribute five or more kilograms of cocaine, in violation
of 21 U.S.C. §§ 841(b)(1)(A), 846. On appeal, Rodriguez-Colon argues that the
district court clearly erred in finding that he did not satisfy the fifth prong of the
safety valve under section 5C1.2(a) of the U.S. Sentencing Guidelines. Rodriguez-
Colon contends that he did “truthfully provide to the Government all information
and evidence [he] had concerning the offense,” and thus qualifies for an
exemption from the mandatory minimum. U.S. S ENTENCING G UIDELINES M ANUAL
§ 5C1.2(a) (2007).
When reviewing denial of safety-valve relief, we review the district court’s
findings of fact for clear error and the application of the sentencing guidelines to
those facts de novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir.
2004) (per curiam). A district court must sentence a defendant without regard to
any statutory minimum if the defendant meets the five criteria under
section 5C1.2(a). See United States v. Brownlee, 204 F.3d 1302, 1304 (11th Cir.
2000); see also U.S. S ENTENCING G UIDELINES M ANUAL § 5C1.2. Section
2D1.1(b)(11) provides for a two-level decrease in the offense level if the defendant
satisfies the section 5C1.2(a) requirements. See U.S. S ENTENCING G UIDELINES
M ANUAL § 2D1.1(b)(11).
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Subsections 5C1.2(a)(1)-(4) state that a defendant must have no more than
one criminal history point; must not have been a leader in the offense; and, must
have been non-violent during commission of the offense. See U.S. S ENTENCING
G UIDELINES M ANUAL§ 5C1.2(a)(1)-(4). The district judge found that Rodriguez-
Colon satisfied the first four safety valve requirements.
However, the district judge found that Rodriguez-Colon had not satisfied the
fifth safety valve requirement. The fifth prong of the safety valve places on the
defendant “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 (quotation and citation omitted); U.S. S ENTENCING
G UIDELINES M ANUAL § 5C1.2(a)(5). “Thus, the burden is on the defendant to
come forward and to supply truthfully to the government all the information that he
possesses about his involvement in the offense, including information relating to
the involvement of others and to the chain of the narcotics distribution.” United
States v. Milkintas, 470 F.3d 1339, 1345 (11th Cir. 2006) (per curiam) (quotation
and alteration omitted). There is no initial burden on the government to solicit
information from the defendant. Id. at 1346. Moreover, a defendant cannot
qualify for the safety valve “merely by expressing a willingness to provide
information . . . .” Id. Thus, the burden was on Rodriguez-Colon to actually
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provide the government all of the information that he had about the narcotics
scheme.
Lies and omissions do not necessarily disqualify a defendant from
safety-valve relief as long as the defendant later makes a truthful and complete
proffer. Brownlee, 204 F.3d at 1305. A district court cannot apply the safety valve
if it determines that the defendant “withheld or misrepresented information,” even
if the information would not have aided further investigation or prosecution if
properly disclosed. United States v. Figueroa, 199 F.3d 1281, 1282-83 (11th Cir.
2000) (per curiam). In determining the honesty of a defendant, the district court
must independently assess the facts and may not rely on the government’s
assertion of dishonesty. United States v. Espinosa, 172 F.3d 795, 797 (11th Cir.
1999) (per curiam).
Here, the district court did not clearly err in finding that Rodriguez-Colon
failed to provide a full and truthful proffer. When Rodriguez-Colon sat down with
the police to provide a proffer, he lied and stated that he had not received his
Miranda warnings. The police concluded the proffer session because Rodriguez-
Colon started the session by not telling the truth. At no subsequent time did either
Rodriguez-Colon or his counsel ask the police to reconvene a proffer session. The
burden was on Rodriguez-Colon to request an opportunity to truthfully tell the
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police all he knew. See Milkintas, 470 F.3d at 1345.
Rodriguez-Colon did provide a Notice of Compliance in an attempt to
satisfy the fifth prong of the safety valve. The district court did not clearly err by
finding his written proffer inadequate. There are a number of inconsistencies
between his Notice of Compliance and his earlier confessions. For example, in his
written proffer, Rodriguez-Colon states that he had only ever opened one or two
parcels, which is belied by his earlier confession that he knew the prior contents of
four empty parcels found in his apartment. Additionally, in his written proffer,
Rodriguez-Colon states that he did not know the type or quantity of drugs
contained within the packages he transported. We cannot say that the district judge
clearly erred in disbelieving him, when Rodriguez-Colon confessed that he was
paid by the “kilo,” a term associated with cocaine, and further confessed that he
knew the drug could not be marijuana because it was a white powder.
Furthermore, Rodriguez-Colon failed in his proffer to identify all of his associates
in the narcotics scheme.
We conclude that the district court did not err in determining that Rodriguez-
Colon failed to make a complete and truthful proffer pursuant to
section 5C1.2(a)(5). Therefore, he is ineligible for safety-valve relief, and the
mandatory minimum of 10 years applies.
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CONCLUSION
Upon review of the parties’ briefs and the record, we discern no reversible
error. Accordingly, we affirm Rodriguez-Colon’s 120-month sentence.
AFFIRMED.
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