United States v. Cesar Alarcon-Garcia ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1549
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Cesar Alarcon-Garcia, *
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Defendant - Appellant. *
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Appeals from the United States
No. 02-1648 District Court for the
__________ District of Minnesota.
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Daniel Bueno-Gardea, also known as *
Abel Hidalgo-Escarcega, *
*
Defendant - Appellant. *
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Submitted: December 11, 2002
Filed: April 28, 2003
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Before McMILLIAN, JOHN R. GIBSON, and BYE, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Cesar Alarcon-Garcia and Daniel Bueno-Gardea1 pleaded guilty to charges of
conspiracy to distribute marijuana and possession of marijuana with intent to
distribute. Since the amount of marijuana charged in the conspiracy exceeded one
thousand kilograms, the district court2 imposed a mandatory minimum sentence of ten
years on each defendant. On appeal, Alarcon-Garcia and Bueno-Gardea both claim
that the district court erred by not finding that they were entitled to the "safety valve"
exception to these mandatory minimum sentences, which would have allowed the
court to sentence them according to their sentencing guideline range. We affirm.
I.
On May 22, 2001, DEA agents executed a search warrant at a house on 3608
Morgan Avenue North in Minneapolis, Minnesota. At this house, the agents
encountered three individuals: the defendants, Bueno-Gardea and Alarcon-Garcia,
and a third person named David Armandariz-Chavez. In the course of their search
of the house, the agents discovered and seized approximately 1,652 pounds of
marijuana, mostly wrapped in four pound "bricks," and $76,000 in cash, along with
two scales and a large quantity of discarded wrapping materials identical to the
1
According to Bueno-Gardea's presentence report, his true name is Abel
Hidalgo-Escarcega. Since he was charged, convicted, and filed his appeal under the
name Daniel Bueno-Gardea, we will refer to him by this name throughout this
opinion.
2
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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packaging that encased the marijuana. They also found several notebooks that
documented numerous marijuana sales and recorded proceeds from these sales in
excess of one million dollars. Bueno-Gardea, Alarcon-Garcia, and Armandariz-
Chavez were charged with conspiracy to distribute and possess with intent to
distribute more than one thousand kilograms of marijuana3 under 21 U.S.C. §§ 846and 841(b)(1)(A) (2000) as well as possession with intent to distribute 1,650 pounds
of marijuana under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (2000). Armandariz-
Chavez was tried separately from the defendants and convicted of both counts. Both
Bueno-Gardea and Alarcon-Garcia pleaded guilty to both counts without entering
into a plea agreement with the government. The guideline range for both defendants,
based on the calculations in their presentence reports, was 87 to 108 months.
However, their conviction for the conspiracy to distribute more than one thousand
kilograms of marijuana called for a ten year mandatory minimum sentence. See 21
U.S.C. § 841(b)(1)(A).
In order to avoid this minimum sentence and receive a sentence within the
guideline range, Bueno-Gardea agreed to an interview with the government in which
he would disclose information necessary to qualify for the safety valve under 18
U.S.C. § 3553(f) (2000) and Sentencing Guideline § 5C1.2. The information
disclosed by Bueno-Gardea in this interview was summarized in a letter written by
the prosecutor to the district court, in which the prosecutor urged the court not to
grant safety valve relief because he believed Bueno-Gardea had not completely and
truthfully disclosed all of the information concerning his crime. At sentencing, the
judge agreed with the prosecutor that Bueno-Gardea's disclosure was not complete
and truthful and refused to grant him safety valve relief. Consequently, Bueno-
3
The quantity of marijuana in the conspiracy charge was calculated using the
marijuana found in the house as well as an estimate of the marijuana already sold
from this location. The estimate was based on the 408 empty wrappers found in the
house. These wrappers were identical to the wrappers that wrapped the four pound
"bricks" of marijuana that were seized during the search.
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Gardea was sentenced to 120 months pursuant to the mandatory minimum set forth
in § 841(b)(1)(A). Alarcon-Garcia, on the other hand, refused to be interviewed. At
sentencing, he conceded that as a result he did not qualify for the safety valve, and
likewise received the 120 month mandatory minimum sentence. Both defendants
appeal these sentences.
II.
The safety valve provision in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 allows
the district court to apply the guideline range in lieu of a mandatory minimum
sentence prescribed by statute if the defendant satisfies five conditions. The first four
conditions, which do not concern us in this case, address the criminal history of the
defendant and the nature of the instant crime. At issue in this case is whether the
defendants have satisfied the fifth condition, which requires a defendant to truthfully
provide to the government "all information and evidence the defendant has
concerning the offense or offenses that were part of the same course of conduct or of
a common scheme or plan" no later than the time of sentencing. 18 U.S.C. §
3553(f)(5). Although the safety valve requires the defendant to completely disclose
all information relating to the crime, "the fact that the defendant has no relevant or
useful other information to provide or that the Government is already aware of the
information shall not preclude a determination by the court that the defendant has
complied with this requirement." Id.Bueno-Gardea argues that the district court erred by finding that he did not
make the complete and truthful disclosure necessary to receive the benefit of the
safety valve. We review the district court's finding that Bueno-Gardea did not meet
the requirements of § 3553(f) for clear error. United States v. Romo, 81 F.3d 84, 86
(8th Cir. 1996).
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The district court's decision was based on Bueno-Gardea's proffer interview
with the government as summarized in the prosecutor's letter to the court. At
sentencing Bueno-Gardea conceded that his counsel was present at this interview and
the letter accurately and completely described his admissions. In order to obtain the
benefit of the safety valve, Bueno-Gardea bears the burden of showing that he gave
the government truthful information about his crime at this interview. See Romo, 81
F.3d at 85-86.
We conclude that the district court did not clearly err in finding that Bueno-
Gardea did not meet this burden. Bueno-Gardea was required to disclose the
identities and participation of others involved in the crime. United States v. Morones,
181 F.3d 888, 890 (8th Cir. 1999). Bueno-Gardea claimed he knew David
Armandariz-Chavez, and the latter was also present at 3608 Morgan with Bueno-
Gardea at the time of their arrests. Nevertheless, Bueno-Gardea never implicated
David Armandariz-Chavez in the sale of marijuana from the house at 3608 Morgan.
Rather, he claimed that the only people involved in the sale of marijuana from this
location were himself, his co-defendant Alarcon-Garcia, and a third individual named
Miguel Ortega, whom Bueno-Gardea maintained was a different person from
Armandariz-Chavez. As the prosecutor pointed out, the district court had recently
presided over the trial at which Armandariz-Chavez was convicted of both the
conspiracy and the possession charges. The district court was permitted to consider
this evidence in evaluating the credibility of Bueno-Gardea's claim that he was not
aware of Armandariz-Chavez's involvement in the conspiracy to distribute marijuana.
See United States v. Velasquez, 141 F.3d 1280, 1283 (8th Cir. 1998). Based on the
facts that Armandariz-Chavez had been convicted for his participation in the
conspiracy and Bueno-Gardea and Armandariz-Chavez were both found at 3608
Morgan at the time of the search, the district court could conclude that Bueno-Gardea
was in fact aware of Armandariz-Chavez's role in the conspiracy and doubt the
truthfulness of Bueno-Gardea's proffer to the government.
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Furthermore, Bueno-Gardea stated in his interview that Miguel Ortega was
solely responsible for all the marijuana sales conducted out of 3608 Morgan. Bueno-
Gardea also claimed that Ortega had allegedly left Minnesota for Mexico eight days
before Bueno-Gardea and Alarcon-Garcia were arrested. However, the record of
marijuana sales found at 3608 Morgan revealed that some sales had been conducted
after the time Ortega allegedly left and before the arrests, clearly contradicting either
Bueno-Gardea's statement that Ortega was solely responsible for drug sales or that
Ortega had fled Minnesota. Considering this evidence that Bueno-Gardea
misrepresented important facts in his safety valve proffer, the district court did not
clearly err in finding that Bueno-Gardea's disclosure was not complete and truthful
as required by § 3553(f) and § 5C1.2.
III.
Defendant Alarcon-Garcia likewise argues that the district court erred in not
finding him entitled to the safety valve. Unlike his codefendant, Alarcon-Garcia
never submitted to an interview with the government to make the disclosure required
by the safety valve provision. At sentencing, he conceded that since he did not make
a proffer, he was not entitled to safety valve relief. Now, on appeal, he claims for the
first time that his disclosure of information relating to his crime at the hearing on his
guilty plea sufficed to fulfill the requirements for the application of the safety valve,
and that the district court erred in not granting him relief under this provision at
sentencing. Since he raises this claim for the first time on appeal, we review it only
for plain error. Fed R. Crim. P. 52(b); United States v. Rios, 171 F.3d 565, 567 (8th
Cir. 1999).
We conclude that the district court did not commit plain error by finding that
Alarcon-Garcia did not qualify for the safety valve. Alarcon-Garcia correctly points
out that neither § 3553(f) nor § 5C1.2 specifies a particular form, place, or manner for
the disclosure required of a defendant seeking the benefit of the safety valve. United
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States v. Dukes, 147 F.3d 1033, 1035 (8th Cir. 1998). Therefore, a defendant seeking
safety valve relief is not obliged to submit to an interview with the government or
make a formal safety valve proffer. Nevertheless, "a defendant who declines to offer
himself for a debriefing takes a very dangerous course" because he ultimately bears
the burden of persuading the district court that he has made a complete, truthful
disclosure to the government. United States v. Montanez, 82 F.3d 520, 523 (1st Cir.
1996). The record shows that Alarcon-Garcia's disclosure of the basic facts of his
crime did not meet this burden. He disclosed little more than the circumstances of the
seizure of drugs from his house, the quantity of drugs in his possession, and his
knowledge that he was a participant in a conspiracy to distribute these drugs.
However, as we noted above, § 3553(f) and § 5C1.2 require the defendant to disclose
the identities and participation of others involved in the crime. Morones, 181 F.3d
at 890. Alarcon-Garcia did not disclose any information concerning the identity of
his co-conspirators or the source of the supply of drugs involved in the operation at
3608 Morgan, information which the government and the district court could have
reasonably expected him to have. Therefore, the district court did not commit plain
error by refusing to grant him a safety valve reduction on the basis of his disclosure
at the plea hearing.
We affirm the sentences imposed by the district court on Bueno-Gardea and
Alarcon-Garcia.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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