United States v. Gutierrez-Maldonado ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3868
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Minnesota.
*
Adolfo Gutierrez-Maldonado, * [PUBLISHED]
*
Appellant. *
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Submitted: May 15, 2003
Filed: May 21, 2003
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Before LOKEN, Chief Judge, FAGG and MURPHY, Circuit Judges.
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PER CURIAM.
Adolfo Gutierrez-Maldonado pleaded guilty to one count of conspiracy to
distribute and possess with intent to distribute over 500 grams of a mixture of
cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1). Before sentencing, Gutierrez-
Maldonado was given the opportunity to participate in an interview with the
government to convey his knowledge about the crime, but Gutierrez-Maldonado
refused the interview. At sentencing, defense counsel told the court Gutierrez-
Maldonado’s knowledge about the drug activity in the case was limited to what
Gutierrez-Maldonado told the court when he pleaded guilty. The district court*
explained Gutierrez-Maldonado’s refusal to participate in the proffer prevented
safety-valve relief and sentenced Gutierrez-Maldonado to the mandatory minimum
of sixty months in prison and four years of supervised release.
On appeal, Gutierrez-Maldonado contends the case should be remanded for
resentencing because he met all necessary criteria for safety-valve relief. The safety
valve, 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, provides that if a defendant, among
other things, provides the government with all information and evidence the
defendant has about the offense, the court may sentence the defendant under the
sentencing guidelines regardless of the statutory minimum sentence. 18 U.S.C. §
3553(f)(5); U.S.S.G. § 5C1.2(a)(5). We review the district court’s conclusion that
Gutierrez-Maldonado did not do so for clear error. See United States v. Velasquez,
141 F.3d 1280, 1283 (8th Cir. 1998).
Gutierrez-Maldonado contends the information he conveyed during his plea
colloquy and to the probation officer who prepared the presentence report are
sufficient to satisfy § 3553(f)(5) and § 5C1.2(a)(5). We disagree. The factual basis
of Gutierrez-Maldonado’s guilty plea was limited to a recitation of his own actions
about the crime, and his statements to the probation officer were also limited and
incomplete. Gutierrez-Maldonado’s refusal to submit to a government interview
precluded the government from determining whether Gutierrez-Maldonado had
provided truthful and complete information warranting safety valve relief. It is
Gutierrez-Maldonado’s burden to make this showing. See Velasquez, 141 F.3d at
1283. Indeed, a defendant who refuses a government interview does so at his peril.
See id. (defendant’s affidavit alone insufficient to satisfy safety valve); United States
v. Ramirez, 94 F.3d 1095, 1103 (7th Cir. 1996) (defendant’s failure to respond to
*
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
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government’s proffer letter or to answer government’s questions precluded safety
valve relief); United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996) (“defendant
who declines to offer himself for debriefing takes a very dangerous course”); United
States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996) (§ 3553(f)(5) requires defendants
to show, through affirmative conduct, they have supplied truthful information to the
government).
Having chosen not to meet with the government to permit testing of the extent
of his knowledge and the truthfulness of his account, Gutierrez-Maldonado failed to
meet his burden to show he was eligible for the safety valve. Thus, the district court
correctly sentenced Gutierrez-Maldonado to the statutory minimum sentence, and we
affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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