United States v. Avila-Leon, Alejandr , 203 F. App'x 721 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 11, 2006
Decided October 23, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-1753
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
ALEJANDRO AVILA-LEON, No. 05-CR-315-1
Defendant-Appellant.
Amy J. St. Eve,
Judge.
ORDER
Alejandro Avila-Leon and co-defendant Pedro Carret-Rivero were arrested
and charged after they delivered over five kilograms of cocaine to a confidential
informant. Avila-Leon entered a plea of guilty to one count of conspiracy to possess
with intent to distribute cocaine. See 21 U.S.C. §§ 846, 841(a)(1). Although he was
subject to a statutory minimum of 120 months’ imprisonment because of the
quantity of cocaine, id. § 841(b)(1)(A), Avila-Leon sought a lesser sentence under the
“safety valve,” see 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). The district court found
that Avila-Leon was ineligible for the reduced sentence because he failed to make a
complete and truthful proffer and determined that a sentence of 120 months was
No. 06-1753 Page 2
proper. Avila-Leon appeals, but his appointed counsel opines that she is unable to
discern a nonfrivolous basis for the appeal and moves the Court to allow her to
withdraw. See Anders v. California, 386 U.S. 738 (1967). Since counsel's
supporting brief is facially adequate and Avila-Leon has failed to respond to his
attorney’s motion, see Cir. R. 51(b), we review only the potential issue that counsel
has identified. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per
curiam).
Since Avila-Leon has given no indication that he wants his guilty plea
vacated, counsel has appropriately avoided any discussion addressing the
voluntariness of the plea or the adequacy of the colloquy. See United States v. Knox,
287 F.3d 667, 670-71 (7th Cir. 2002). Counsel considers only one potential
argument: whether the district court erred by not applying the safety valve in
sentencing Avila-Leon. The safety valve allows certain non-violent, first-time drug
offenders to avoid application of statutory mandatory minimum sentences, if they
cooperate with the government before sentencing. See 18 U.S.C. § 3553(f)(1)-(5);
U.S.S.G. § 5C1.2; United States v. Alvarado, 326 F.3d 857, 860 (7th Cir. 2003). The
defendant bears the burden of establishing his eligibility for the safety valve by a
preponderance of evidence. See United States v. Montes, 381 F.3d 631, 634 (7th Cir.
2004). We review the trial court's determination that a defendant failed to meet
this burden for clear error. See United States v. Harrison, 431 F.3d 1007, 1014 (7th
Cir. 2005); United States v. Ponce, 358 F.3d 466, 468 (7th Cir. 2004).
The trial judge found that Avila-Leon met all of the safety-valve criteria
except for one: he failed to cooperate with the government. See 18 U.S.C.
§ 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). To satisfy that criterion, Avila-Leon was
required to truthfully disclose “all information and evidence” he had concerning his
offense to the government. Id. Avila-Leon gave information to the government on
two occasions, but the authorities were not convinced that Avila-Leon had
truthfully disclosed all of the information he had concerning the transaction. After
a hearing on the matter—at which Avila-Leon testified extensively—the trial judge
agreed that the information that Avila-Leon had provided was neither truthful nor
complete. Avila-Leon and his co-defendant both insisted that this was their first
drug deal and that they were acting on the orders of others. Avila-Leon’s attempt to
portray himself as a simple courier is belied by the admissions in his plea
agreement that he negotiated the quantity and price of the cocaine and named the
location where the transaction would be completed. At the evidentiary hearing
Avila-Leon contradicted these facts during his direct testimony, but did concede on
cross-examination that the version set forth in the plea agreement was accurate.
Moreover, Avila-Leon does not dispute that during his first hour-long proffer he
failed to state that a third partner was involved in the cocaine sale. He revealed
this information only after the government threatened to withdraw its
recommendation for the safety valve. A district court may consider a defendant's
No. 06-1753 Page 3
lack of candor when determining eligibility under the safety valve provision. Ponce,
358 F.3d at 468-469. The district court’s denial of the safety valve is amply
supported in the record and thus was not clearly erroneous. Arguing otherwise
would be frivolous.
We GRANT the motion to withdraw and DISMISS this appeal.