United States v. Oscar Alvarez ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2094 & 08-2675
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARCUS C ORSON and O SCAR A LVAREZ,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 06-CR-930-2 & 06-CR-930-3—Rebecca R. Pallmeyer, Judge.
A RGUED M AY 14, 2009—D ECIDED A UGUST 27, 2009
Before R IPPLE, M ANION, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Marcus Corson and Oscar Alvarez
were charged with two conspiracies, one to rob a drug
stash house and the other to sell what they planned to
steal. This seems straightforward enough. But there’s a
twist. There never was any stash house to rob. Nor were
there any drugs. And the two people who introduced
Corson and Alvarez to the stash house plan never
intended to rob anything. That’s because one was a gov-
2 Nos. 08-2094 & 08-2675
ernment agent and the other a confidential informant
(“CI”). This fictitious stash house plot was concocted by
law enforcement to entice all-too-eager gangsters to
agree to do something illegal.
In the end, there was no robbery, and nobody testified
that they saw the defendants with firearms. But the jury
convicted on both counts.
Corson and Alvarez appeal their convictions. If judges
sat in a policy-making role, perhaps we might have
reason to wonder whether this scheme was the right use
of law enforcement resources. But directing policy is not
within our province. Instead, in this case, our duty is to
assess whether the evidence was sufficient for a jury to
convict. It’s an uphill battle to overturn a jury verdict.
Assessing credibility of witnesses and interpreting the
evidence are tasks ordinarily left to the jury. After re-
viewing the record we conclude that there was sufficient
evidence for the jury to find guilt beyond a reasonable
doubt. We affirm their convictions, and we also affirm
Corson’s sentence.
I. Background
The Bureau of Alcohol, Tobacco and Firearms (“ATF”)
hatched their stash house sting operation in early Novem-
ber 2006. ATF agents met with the CI and asked whether
he knew anyone who might be interested in robbing a
drug stash house. The CI identified Marcus Corson and
his brother Aaron. (Aaron Corson was also tried and
convicted but he withdrew his appeal. To avoid confusion,
Nos. 08-2094 & 08-2675 3
we will hereafter refer to the Corson brothers by their
first names only.) So the ATF instructed the CI to make
contact. The CI called Marcus and told him about a
“business opportunity.” Marcus showed some interest
and on November 8 told the CI to meet him at the home
of the third defendant, Oscar Alvarez, that day.
The CI showed up to Alvarez’s place wearing a body
wire, a digital recording device that would capture their
conversations. The jury would hear and read a transcrip-
tion of all of what was said. The CI started to tell Marcus
and Alvarez about the plan, describing how he worked
security for a guy he met in prison named Loquito, or
“Loqs,” who worked for a Mexican drug organization. (Of
course, there was no Mexican drug organization and
“Loquito” was actually an undercover ATF agent.) Before
the CI mentioned the robbery, though, Marcus and
Alvarez jumped in and asked whether the CI was talking
about a “gank” (meaning a heist). When the CI responded
affirmatively, Alvarez asked, “How much you talkin’?” to
which the CI responded “bricks” of cocaine (the coke,
not money, was the target of the robbery). Marcus got
excited and Alvarez asked the CI whether he was talking
about “runnin and robbin’ some niggas” and to “make
it clear, the details.”
The CI explained the operation: Loquito would not
know the location of the stash house until just one
hour before the drugs arrived; but once he knew the
location, he would call the CI. Then the Corson-Alvarez
crew could execute the robbery. Marcus and Alvarez
probed the CI for details. Marcus asked if the stash
4 Nos. 08-2094 & 08-2675
house guards would be “strapped, too,” meaning carrying
firearms. The CI said they probably would be. But
that didn’t matter. Marcus and Alvarez said they were
in. Marcus: “I’m down, bro. That ain’t no thing. I’m
down. Ain’t a question.” Alvarez: “We in it. We in it a
hundred percent, bro.” As for the guards, Marcus said
he wouldn’t hesitate to kill them. Marcus then told the
CI that his brother Aaron would be involved too and
that the three of them had done robberies in the past.
They agreed to meet the next day.
During all this Marcus and Alvarez repeatedly
expressed their concern—not over whether the plan
was real, but whether the drugs would certainly be at the
stash house: “if you send us in, the shit gotta be there,
bro. He gotta know if it’s there.” Marcus repeated this
ultimatum: “But the only thing is . . . you gotta make
sure this shit’s there.” And so did Alvarez: “But, ya know
what I’m sayin’, if shit don’t go right, nigga, that falls
on you and him.” The CI assured them the drugs would
be there.
Marcus left but Alvarez stayed to meet Loquito (the
undercover agent), who was waiting in a car nearby.
Loquito explained how the Mexican drug operation and
the stash houses worked and said they were looking at
20 to 25 kilos of coke being in the stash house. Loquito
asked whether Alvarez and the Corsons were up to
the task, and Alvarez repeatedly recommitted: “You got
the crew. We got the crew”; “Everything sounds good . . . .
it’s gravy”; “Yeah. I’m in.” Alvarez explained that he
and the Corsons had done these kinds of robberies
Nos. 08-2094 & 08-2675 5
before and had no problem killing the guards in the
stash house. If the guards had guns, no problem; they
had their own. And Alvarez even debated how he’d like
to execute the robbery: at first “with the intentions of
quietness,” but later saying it might be better to do it
“like a police raid.” But again, through all this, Alvarez
reiterated the earlier concern about the drugs being at
the stash house. The drugs had to be there. Loquito
assured him they would be. So they agreed to meet the
next day.
They didn’t meet for a couple of weeks though. On
November 20, Alvarez and both Corsons met with the CI
and Loquito. These conversations were also recorded.
Before they met, the CI told Alvarez and Marcus that
Loquito was scared to enter their house. Alvarez re-
sponded: “Well, fuck that, man. If he on some scary
shit, ain’t no sense doin’ it. Tell, tell him to come on.”
Marcus, too, expressed some frustration. Eventually,
though, the defendants relented and met with Loquito
outside in a van. Loquito explained the robbery job to
everyone. He told them that the drug cartel used empty
houses to stash drugs and that he would only know the
location of one of those houses just hours before the
drugs arrived. There were usually 15 to 20 kilos of co-
caine. Loquito also said that the guards of the stash house
would be armed. The defendants asked about what kinds
of weapons the guards carried and Loquito responded that
they would have 9mm handguns, or “li’l baby thumpers,”
as he called them. “Just handguns?” Alvarez responded.
He and the Corsons weren’t worried: “we got somethin’
way bigger’n that.”
6 Nos. 08-2094 & 08-2675
All three repeatedly reconfirmed their commitment to
the robbery. Marcus: “you got your squad.” Aaron: “I’m
ready, man.” Loquito said he needed a “professional
crew.” They reiterated that they were experienced and
that they would be the “final crew.” Alvarez: “I assured
you it straight, so it straight.” Aaron: “I’m ready, man”;
“Just you do your part. We’re gonna do ours, bro.” Marcus:
“[Y]ou got your squad”; “Man, it’s on, dog.” Then, one
more time, Loquito confirmed the participation of all
three:
AARON: Who the fuck, who the fuck
ain’t gonna move on
some’in’ for 15, 20 keys (U/I)
MARCUS: Ya’ know? I’m sayin’, bro.
AARON: (U/I) Tell you some’in’, don’t
go lookin’ nowhere else man.
Signed, sealed, done deal,
man.
UCO [LOQUITO]: A’right, man. It’s a deal.
ALVAREZ: For sho.
UCO [LOQUITO]: It’s a deal.
ALVAREZ: (U/I)
UCO [LOQUITO]: Demon [Alvarez], I already
talked to you about this,
ALVAREZ: Yeah, (U/I)
UCO [LOQUITO]: bro.
ALVAREZ: (U/I) I’m sayin’ it’s all good.
Nos. 08-2094 & 08-2675 7
They finished the conversation discussing how they
would split the proceeds or the “chops,” as they called
it. After some back-and-forth, mostly between Marcus
and Alvarez, they settled on an equal share for all five
involved. They left with the expectation that Loquito
would call when he heard the deal was about to go
down. And Loquito could get ahold of them easily,
because “we’re all a team.” As Aaron put it, “You got the
president hotline right now, man. That call comes in,
everything stops, bro.”
On November 27, the CI called Marcus to tell him the
robbery might be the next day. On November 28, the CI
called Marcus after Marcus got off work and told him
that Loquito wanted to talk to them again about the
robbery. Marcus responded, “I don’t want to see dude
again,” referring to Loquito. The CI called back a few
minutes later and asked whether he was “in or not.”
Marcus said, “I’m straight.” After a few more calls,
Marcus agreed to meet up.
Alvarez and the Corsons drove to a shopping mall
parking lot to meet the CI and Loquito, who were
already there. The CI (wearing the body wire) went
over and got in Marcus’s car. Marcus expressed some
frustration about Loquito. Alvarez asked if Loquito was
“just waitin’ on the call and shit,” and the CI responded
affirmatively. Then Marcus complained that the CI and
Loquito had parked their car in a way that might stick
out to law enforcement. So Marcus started driving
around the mall parking lot. (An ATF agent opined at
trial that such a tactic is known as a “heat run,” where
8 Nos. 08-2094 & 08-2675
a suspect drives around to see if he’s being followed.)
Aaron asked whether the Mexican cartel had people
following them; the CI said he didn’t know. Aaron then
asked the CI, “Are you strapped, too, right now or
what?” referring to whether the CI was armed. The CI
said he had a gun in Loquito’s car. Marcus chimed in, “So,
it’s basically a waiting game, right?” The CI responded,
“Yep, Waitin’ on that call.”
While they waited, they discussed some more of the
mechanics of the robbery. Marcus said he didn’t want
Loquito to see his “get-away” car: “We don’t even need
to go in dude’s car, man. That’s the only thing. I just
don’t want dude to see this car, man, ‘cause this our get-
away ride right here.” Marcus and Aaron offered to
have the CI ride with them and let Loquito ride alone.
But the CI declined, saying that Loquito would get suspi-
cious. Marcus agreed and they continued to discuss
how they wanted to execute the robbery. Marcus sug-
gested that the CI and Loquito lead the way, with the
three of them following behind. When the CI and Loquito
got to the stash house, Marcus would pull up after the
CI and Loquito started walking up to the house. After
that, Aaron suggested they “bum rush.”
After the CI took a call from Loquito, the CI started to
get out and head back to Loquito’s car to check on things.
The CI asked the defendants whether he should call
them when Loquito got the location on the stash house.
Marcus said, “We just gonna go relocate in another
spot . . . . as soon as you get the call, just call us, and then
we’re just gonna be waitin’.” The defendants drove away
Nos. 08-2094 & 08-2675 9
and never came back. Loquito called them several times to
try to salvage the sting but to no avail. He asked them
to reconfirm their commitment to the robbery but they
refused. The sting was over.
The defendants weren’t arrested that day, but about
two weeks later. A search of defendants’ residences
revealed little evidence, only a baggie of bullets at
Alvarez’s apartment. The defendants were indicted on
two conspiracy counts: (1) conspiracy to possess with
intent to distribute five or more kilograms of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846; and
(2) conspiracy to obstruct, delay or affect commerce, and
the movement of a commodity in commerce, by means
of robbery, in violation of 18 U.S.C. § 1951. After hearing
from ATF agents, including “Loquito,” as well as hearing
the recordings of the conversations picked up over the
body wire, the jury convicted the defendants of both
counts.
At sentencing, Marcus requested a sentence below the
mandatory minimum sentence of 10 years based on the
“safety valve” provision under 18 U.S.C. § 3553(f)
and U.S.S.G. § 5C1.2. In support, Marcus’s counsel prof-
fered a letter to the government outlining his version of
the events. That letter was submitted to the court. But
ultimately, the court denied the safety valve without
much discussion. In the end, Marcus received 135 months
of imprisonment, Alvarez received 165, and Aaron re-
ceived 192.
Only Marcus and Alvarez appeal. They both appeal their
convictions, arguing insufficient evidence. And Marcus
10 Nos. 08-2094 & 08-2675
appeals his sentence on the basis that the court should
have applied the safety valve.
II. Sufficiency of the Evidence (Both Marcus
and Alvarez)
Marcus and Alvarez face a “nearly insurmountable
hurdle” in this challenge to the sufficiency of the
evidence to sustain their convictions. United States v. Moore,
572 F.3d 334, 337 (7th Cir. 2009) (quotation omitted).
To reverse, we must be convinced that even “after
viewing the evidence in the light most favorable to the
prosecution, no rational trier of fact could have found
him guilty beyond a reasonable doubt.” Id. We will not
“weigh the evidence or second-guess the jury’s credi-
bility determinations.” United States v. Stevens, 453 F.3d
963, 965 (7th Cir. 2006) (quotation omitted). Nor will
we “overturn a conviction because we would have voted
to acquit.” Id. Rather, “we will overturn a conviction
based on insufficient evidence only if the record is
devoid of evidence from which a reasonable jury could
find guilt beyond a reasonable doubt.” United States v.
Farris, 532 F.3d 615, 618 (7th Cir.) (citation omitted),
cert. denied, 129 S. Ct. 967 (2008).
The jury convicted Marcus and Alvarez of conspiring
to rob a drug stash house and sell their loot. “Conspiracy
is agreement to violate some other law.” United States
v. Bartlett, 567 F.3d 901, 905 (7th Cir. 2009); see also
United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993)
(en banc). Though it might seem odd, the fact that the
stash house, the drugs—indeed the whole plot—was fake
Nos. 08-2094 & 08-2675 11
is irrelevant. That the crime agreed upon was in fact
impossible to commit is no defense to the crime of con-
spiracy. United States v. Shively, 715 F.2d 260, 266 (7th
Cir. 1983). The crime of conspiracy is the agreement
itself.† See United States v. Shabani, 513 U.S. 10, 11 (1994).
†
Proof of an overt act is not required for drug conspiracies
under 18 U.S.C. § 846. See United States v. Shabani, 513 U.S. 10, 11
(1994).
As for Hobbs Act conspiracies, 18 U.S.C. § 1951, we note
that some of our decisions list an overt act as an element,
without discussion of the issue. See, e.g., United States v. Stodola,
953 F.2d 266, 272 (7th Cir. 1992) (“To prove conspiracy to
commit extortion, the government was only required to prove
that ‘there was an agreement between two or more persons to
commit an unlawful act, that the defendant was a party to
the agreement, and that an overt act was committed in furtherance
of the agreement by one of the coconspirators.’ ” (emphasis added)
(quoting United States v. Tuchow, 768 F.2d 855, 869 (7th Cir.
1985))). A number of other circuits, however, have expressly
held that a Hobbs Act conspiracy does not require proof of an
overt act. See, e.g., United States v. Palmer, 203 F.3d 55, 63 (1st
Cir. 2000); United States v. Pistone, 177 F.3d 957, 959-60 (11th
Cir. 1999); United States v. Clemente, 22 F.3d 477, 480 (2d Cir.
1994). In this case, the jury instructions did not include an
overt act requirement for the Hobbs Act conspiracy count. The
defendants do not appeal on those grounds, though. And
indeed, at oral argument, appellants’ counsel conceded that, in
her view, there is no difference between the proof required
for drug conspiracy and that required for a Hobbs Act con-
spiracy. Therefore, we will not consider whether proof of an
overt act was required in this case.
12 Nos. 08-2094 & 08-2675
The law has long punished the agreement to commit a
crime as its own offense. See id. at 16 (citing Regina v. Bass,
(1705) 88 Eng. Rep. 881, 882 (K.B.)); Callanan v. United
States, 364 U.S. 587, 593 (1961). This is so because such
agreements are dangerous in and of themselves. A collec-
tive criminal agreement “increases the likelihood that
the criminal object will be successfully attained,” “de-
creases the probability that the individuals involved will
depart from their path of criminality,” and “makes
possible the attainment of ends more complex than
those which one criminal could accomplish.” Callanan, 364
U.S. at 593. Moreover, conspiracies often breed other
crimes to further the ultimate criminal objective, like
acquiring firearms or stealing getaway cars, and can
even spawn “the commission of crimes unrelated to the
original purpose for which the group was formed,” id.
at 594.
So in this case, the government must prove just that
Marcus and Alvarez agreed to rob the stash house and sell
the drugs, and that they “knowingly and intentionally
join[ed] the agreement.” United States v. Rollins, 544
F.3d 820, 835 (7th Cir. 2008). Alone, idle chitchat or
mere boasting about one’s criminal past is insufficient to
establish a conspiracy. Specifically, proof of a drug con-
spiracy under 18 U.S.C. § 846 requires “substantial evi-
dence that the defendant knew of the illegal objective of
the conspiracy and agreed to participate.” United States v.
Longstreet, 567 F.3d 911, 918-19 (7th Cir. 2009) (quotation
omitted). Yet, “[t]he agreement need not be formal, and
the government may establish that agreement, as it may
other elements of the charge, through circumstantial
Nos. 08-2094 & 08-2675 13
evidence.” United States v. Gilmer, 534 F.3d 696, 701 (7th
Cir. 2008) (quotation omitted); see also United States v.
Turner, 93 F.3d 276, 282 (7th Cir. 1996). For instance, “[a]
conspiracy may be shown by evidence which shows that
the co-conspirators embraced the criminal objective of
the conspiracy, that the conspiracy continued towards
its common goal, and that there were co-operative rela-
tionships.” Gilmer, 534 F.3d at 703.
Moreover, an agreement must exist among cocon-
spirators, that is, those who actually intend to carry out
the agreed-upon criminal plan. United States v. Mahkimetas,
991 F.2d 379, 383 (7th Cir. 1993). A defendant is not
liable for conspiring solely with an undercover govern-
ment agent or a government informant. Id.Marcus and Alvarez challenge their conspiracy convic-
tions in two ways. First, they contend that they never
agreed to violate the law. Instead, they merely boasted
and “talked tough,” but, they submit, that talk never
crystallized to form an agreement to do something ille-
gal. (They assert no claim of entrapment.) Second, they
contend that they never agreed with one another. If
they agreed with anyone, they argue, they each agreed
with the CI or the undercover agent, which is not a con-
spiracy.
The record proves them wrong on both points. Marcus
and Alvarez did much more than talk tough. There was
ample evidence to support the jury’s finding that the
defendants agreed to rob the stash house and sell their
loot (keep in mind that the government gets the benefit
of all reasonable inferences that can be drawn from the
14 Nos. 08-2094 & 08-2675
trial evidence, United States v. Lee, 558 F.3d 638, 641 (7th
Cir. 2009)): (1) the defendants met with the CI multiple
times to discuss the robbery; (2) during each meeting
the defendants sought details about the plan, such as
whether the stash house guards were armed, how much
coke would be there, and when the robbery would take
place; (3) the defendants said they were willing to kill if
necessary and indicated they had strong firepower to
counter that of the guards; (4) they repeatedly discussed
how they would execute the robbery—who would ride
with whom, how the defendants would drive to the
stash house, how many lookouts to have, and whether
to go in quietly or “bum rush” like a “police raid”; (5) they
acknowledged the quantity of drugs they expected (“15, 20
keys”) and discussed the “chops,” or how they would
divide up their loot; (6) they repeatedly expressed concern
that the coke had to be there; if it wasn’t, the defendants
made clear that there would be consequences for the
CI and “Loquito”; (7) the defendants showed up at the
staging location on the day the robbery was to take
place; (8) Aaron asked the CI if he was “strapped, too,”
implying the defendants were armed as well; (9) Marcus
said his car was the “getaway ride” and that he didn’t
want Loquito to see it; (10) Marcus did a “heat run” to
avoid police detection and said he felt Loquito had
parked too conspicuously; and (11) the defendants time
and again reaffirmed their commitment to doing the
robbery—“I’m in,” “it’s gravy,” “I’m down,” “done deal,”
“we got the crew,” “it’s on, dog,” “we in it a hundred
percent, bro.”
All of this evidence showed an intent to carry out the
stash house robbery. Moreover, it showed an agreement
Nos. 08-2094 & 08-2675 15
among the defendants to do so. Accordingly we must
conclude that a rational jury could find the defendants
guilty of conspiracy beyond a reasonable doubt.
Marcus and Alvarez try to poke holes in this evidence,
but to no avail. For instance, they argue that Aaron’s
“strapped, too” question did not imply that the
defendants were armed. This squares with the district
court’s conclusion at sentencing that the defendants
were not armed. This is because, according to the defen-
dants, Aaron actually said “strapped-to,” which simply
meant “armed,” rather than the government’s translation
“strapped, too,” which meant “armed as well.” (The gov-
ernment’s transcription of the body-wire recording says
“strapped, too.” The defense did not offer an alternate
transcription for the jury.) In support, the defendants
point to another occasion when Marcus used the same
phrase in asking whether the stash house guards were
armed. In that situation, the defendants contend, Marcus
couldn’t have meant “armed as well” since he wouldn’t
have been referring to himself, and therefore “strapped,
too” should have been understood as “strapped-to.”
But the record does not require that conclusion. Even
though the district court came to a different conclusion
at sentencing, we must view the evidence in a different
light. (Remember that on a sufficiency-of-the-evidence
challenge, we draw all reasonable inferences in the gov-
ernment’s favor. Id.) Why couldn’t Marcus have been
referring to himself as being armed as well? The defen-
dants repeatedly talked about their own firearms and
their willingness to kill when asking about the stash
16 Nos. 08-2094 & 08-2675
house guards. Moreover, the jury heard the word
“strapped” referring to “armed” two more times, without
hearing the word “too” (or “-to”) along with it. In one
instance, Aaron asked if the guards would be “strapped-
up.” And then later, when discussing how they would
enter the stash house, Marcus said, “We could come
around the corner, Joe, strapped, and get in that door, Joe.”
(emphasis added). So the contention that the defendants
always used the term “strapped-to” to mean “armed” is
belied by these other statements. With that, we conclude
that the inference that “strapped, too” meant “armed as
well” was a reasonable one, and as such, must conclude
that Aaron asked the CI whether he, like the defendants,
was also carrying firearms.
Likewise, when Marcus told the CI, “I’m straight,” on
November 28, the day the robbery was to take place,
the jury need not necessarily have concluded, as the
defendants suggest, that Marcus meant that he didn’t
want any part of the robbery. Nothing in the record
requires that conclusion. In fact, the record suggests the
opposite. During the November 20 meeting, Alvarez
reconfirmed to Loquito his commitment to the robbery
plan by saying, “I assured you it straight, so it straight.”
Essentially, the defendants ask us to reweigh the evi-
dence. They argue that the defendants never contacted
the CI on their own, the CI always called first; that
they met infrequently; that the defendants exhibited an
uneasiness about the undercover officer (e.g., “I don’t
want to see dude again”); that Marcus worked on the
day of the robbery, contrary to prior plans; and that
Nos. 08-2094 & 08-2675 17
despite boasting about being experienced thieves, neither
the CI nor the agents saw or found any cash, guns, or
anything else typically associated with that activity
(indeed, there was some evidence that Alvarez lived on
the floor of his mother’s apartment—though this
might have been construed as an incentive for Alvarez
to participate in a lucrative robbery). But these are argu-
ments more appropriate for a jury than for an appellate
court—in fact, these were the defendants’ arguments to
the jury in this case. (Trial Tr. vol. 4, 664-70, 678-79, 682,
687, August 22, 2007.) We will not reweigh the evidence
on appeal. United States v. Squibb, 534 F.3d 668, 672 (7th
Cir. 2008).
The fact that the defendants drove away before actually
going to the “stash house” falls in this category as well.
The agreement—and thus the crime of conspir-
acy—was already complete. Even if their disappearance
from the staging area is viewed as withdrawal, it would
not absolve them of all liability. See United States v. Read,
658 F.2d 1225, 1232 (7th Cir. 1981). The defendants
argue that this is evidence that a conspiracy never
existed in the first place. But the jury rejected that inter-
pretation in finding the defendants guilty. We cannot
conclude that was an erroneous decision. The evidence
was sufficient to establish that the defendants agreed to
rob the fictitious stash house.
So was the evidence establishing that the defendants
agreed with one another, and not just with the CI or the
undercover agent. The defendants bantered back and
forth between each other about the plan of attack. They
18 Nos. 08-2094 & 08-2675
discussed among themselves how they would divide the
loot, or the “chop,” as they called it. They talked about
their prior experience doing robberies together. They
showed up to the mall parking lot on the day of the
robbery riding in the same car together. And, of course,
they each reiterated their willingness to participate,
while in each other’s company and referring to themselves
as a group. They were a “team,” a “squad,” the “final
crew.” We conclude that this was sufficient evidence for
a rational jury to conclude that the defendants agreed,
amongst themselves, to the robbery plan. Accordingly,
we affirm the defendants’ convictions.
III. Safety Valve (Marcus Only)
Marcus also challenges his sentence. The “safety valve”
gives first-time offenders a lower sentencing guidelines
range, U.S.S.G. § 5C1.2(a), and is one of only two ways
the court can impose a sentence below a mandatory
minimum, 18 U.S.C. § 3553(f); see also id. § 3553(e). Though
Marcus contends that the district court erred by denying
him the benefits of the safety valve, Marcus’s point is
really a procedural one. Marcus makes barely any argu-
ment on appeal that he actually deserved the safety
valve. Instead, he focuses on the district court’s explana-
tion, or lack thereof, for denying the safety valve. We
review a district court’s denial of a safety valve departure
for clear error, United States v. Olivas-Ramirez, 487 F.3d
512, 516 (7th Cir. 2007), but we review its sentencing
procedures de novo, United States v. Castaldi, 547 F.3d 699,
706 (7th Cir. 2008).
Nos. 08-2094 & 08-2675 19
Marcus points out that the district court must give a
sufficient explanation for its sentence. Though “[t]hat
explanation need not be exhaustive[,] . . . it must be
adequate to allow for meaningful appellate review and
to promote the perception of fair sentencing.” United
States v. Scott, 555 F.3d 605, 608 (7th Cir. 2009) (quotation
omitted). Here, the court’s discussion of the safety valve
was not elaborate. The court did acknowledge Marcus’s
request for the safety valve and described what the guide-
lines range would be if the safety valve applied, which
was 121 to 151 months, as opposed to 151 to 188 months
without it. And the court ultimately imposed a sentence
of 135 months, within the reduced range. Still, the court
indicated it was not applying the safety valve. The
court said it was “not inclined to go below the mandatory
minimum sentence . . . because I do think that the
offense conduct was very serious and frightening.” And
when specifically asked about the safety valve, the court
stated, “I am denying the safety valve and imposing
a sentence under 3553.” This final statement does not
provide much in the way of an explanation for denying
the safety valve.
But whether a sentencing court must specifically
outline its reasons for denying a safety valve request, or
whether the court’s discussion in this case was insuf-
ficient, are issues we need not reach. For even if Marcus
is correct that the district court’s explanation was
faulty, any error was harmless. Marcus did not meet the
requirements for the safety valve.
To qualify for the safety valve, a defendant must meet
five criteria. 18 U.S.C. § 3553(f); see also United States v.
20 Nos. 08-2094 & 08-2675
Ponce, 358 F.3d 466, 468 (7th Cir. 2004) (defendant bears
burden of proving eligibility for safety valve). The only
one at issue here is the fifth, which requires that “not
later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government
all information and evidence the defendant has con-
cerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan.”
18 U.S.C. § 3553(f)(5). That information need not neces-
sarily be useful to the government, as long as a defendant
made a good faith effort to cooperate fully. United States
v. Thompson, 106 F.3d 794, 800-01 (7th Cir. 1997).
Marcus attempted to meet this fifth requirement with a
letter from his attorney sent to the government and
ultimately submitted to the court. In the letter, Marcus
essentially denied the existence of a conspiracy. The letter
proffered that Marcus, Aaron, and Alvarez were very
suspicious of the stash house plot from the get-go: they
thought that the CI was a snitch and that Loquito’s
plan sounded implausible. The letter also asserts that
they never initiated contact with the CI or the under-
cover agent, noting that they were concerned about
turning down the plot because the CI had a position of
authority in their gang (the Latin Kings) and could
severely punish them if they disobeyed. In the end, the
letter states that Marcus, Aaron, and Alvarez “con-
firmed that they did not intend to take part in the rob-
bery,” and that when they showed up to the parking lot
on the day of, they each “expressly told [the CI] that
he was not interested in the robbery.”
Nos. 08-2094 & 08-2675 21
But a letter merely reiterating one’s innocence, which is
belied by the evidence in the case as shown to the jury,
does not satisfy the fifth criterion for the safety valve.
“Continu[ing] to cling to a false version of events and
dispute [one’s] culpability . . . is a sufficient basis for
refusing to invoke the safety valve provision.” Id. at 801.
The letter from Marcus’s counsel essentially rehashes a
jury argument—that he never intended to rob the stash
house—and throws in what his attorney asserts were
purportedly some of Marcus’s and his co-conspirators’
personal thoughts and discussions. The jury rejected
that version of the events, and as we discussed above,
was rational in doing so. Consequently, Marcus’s proffer
failed to meet Congress’s purpose for enacting the
safety valve statute, “to allow lenience toward low-level
defendants who did their best to cooperate.” United States
v. Marin, 144 F.3d 1085, 1095 (7th Cir. 1998) (quotation
omitted). So we affirm the denial of the safety valve.
IV. Conclusion
We A FFIRM Corson’s and Alvarez’s convictions. We also
A FFIRM Corson’s sentence.
8-27-09