United States v. Tello , 210 F. App'x 301 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4766
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EFRAINE PEREZ TELLO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:05-cr-01078-HFF-1)
Submitted: December 21, 2006 Decided: December 29, 2006
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, CRAVEN & WILKES, Greenville, South Carolina, for
Appellant. Reginald I. Lloyd, United States Attorney, Isaac L.
Johnson, Jr., Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Efraine Perez Tello pled guilty to conspiracy to possess
with intent to distribute and to distribute 500 grams or more of
cocaine in violation of 21 U.S.C.A. § 841(a), (b)(1)(B) (West 1999
& Supp. 2006). He was sentenced to the mandatory minimum term of
five years imprisonment. Although he did not raise the issue at
sentencing, Tello contends on appeal that he qualified for a
sentence below the mandatory minimum and that the district court
plainly erred by not sua sponte giving him the benefit of the
safety valve provisions in 18 U.S.C. § 3553(f) (2000) and U.S.
Sentencing Guidelines Manual § 5C1.2 (2005). We affirm.
A defendant who meets all five criteria set out in
§ 5C1.2 (incorporating § 3553(f)(1)-(5)) is eligible for a sentence
below the mandatory minimum. The government apparently concedes
that Tello met the first four criteria, but not the fifth, which
requires the defendant to reveal, no later than the sentencing
hearing, “all he knows concerning both his own involvement and that
of any co-conspirators.” United States v. Ivester, 75 F.3d 182,
184 (4th Cir. 1996). The defendant has the burden of showing that
he has affirmatively acted to supply truthful information to the
government. Id. at 185. In support of his claim, Tello states
that he cooperated with the government. The only support in the
record for this assertion is defense counsel’s statement at the
sentencing hearing that his client had “cooperated in the sense
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that he has been to every court appearance and he has turned
himself in any time they have asked [him] to turn himself in
. . . .” We conclude that the district court did not plainly err
in sentencing Tello without applying the safety valve provisions.
See United States v. Olano, 507 U.S. 725, 732-37 (1993) (stating
standard of review for plain error).
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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