United States v. Gustavo Gomez-Perez ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4168
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Gustavo Gomez-Perez, also known as *
Mario, *
*
Defendant - Appellant. *
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Submitted: June 15, 2006
Filed: June 21, 2006
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Before BYE, LAY, and RILEY, Circuit Judges.
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BYE, Circuit Judge.
Gustavo Gomez-Perez pleaded guilty to one count of conspiracy to distribute
500 grams or more of an illegal methamphetamine mixture. The district court1
sentenced Gomez-Perez to 135 months imprisonment, five years supervised release,
and ordered he pay a $100 special assessment. On appeal, Gomez-Perez claims the
district court erred by failing to grant him safety valve relief pursuant to United States
1
The Honorable Donald E. O’Brien, United States District Judge for the
Northen District of Iowa.
Sentencing Guidelines (U.S.S.G.) § 5C1.2(a)(5) and by establishing the quantity of
drugs through witness testimony without discussing whether the challenged evidence
lacked indicia of reliability. We affirm.
I
Gomez-Perez claims the district court erred by not providing him with safety
valve relief pursuant to U.S.S.G. § 5C1.2(a)(5). The district court held Gomez-Perez
did not meet the fifth requirement of the safety valve because he failed to provide
complete and truthful information to government interviewers regarding his
involvement in the present offense.
We review de novo a district court’s legal interpretation of the sentencing
guidelines. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005). We
review the district court’s findings as to the completeness and truthfulness of a
defendant’s safety valve proffer for clear error. United States v. Bolanos, 409 F.3d
1045, 1047 (8th Cir. 2005).
The district court held:
I can’t say that [the government is] wrong in saying that, “Judge,
he just didn’t debrief properly” and so forth. And he has told them,
before he ever got to court here, a couple of different statements and so
forth. And I think that’s enough. So he’s not going to get a safety valve.
...
The defendant does not appear to qualify for the two level safety
valve decrease because he did not truthfully provide all information to
the government related in the offense.
Now, I said there’s an argument about that, but unless the Court
can show that it’s almost impossible for the government not to agree to
safety valve, that it cannot be imposed.
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And I think in this particular case they have plenty of evidence to
show that he wasn’t always telling the same thing. And that’s about all
they need to cancel a safety valve.
Sent. Tr. Nov. 8 at 57, 68.
Gomez-Perez argues the district court improperly deferred to the government
regarding the truthfulness of the defendant’s information. See United States v.
Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir. 2005) (“The statute creating the safety
valve provides that it is the district court which is to determine at sentencing whether
the requirements for the benefit have been met, including whether a defendant has
furnished truthful information.”). Specifically, he argues the court erred by stating:
(1) “[U]nless the Court can show that it’s almost impossible for the government not
to agree to safety valve, that it cannot be imposed”; and (2) “I can’t say that they’re
wrong in saying that, ‘Judge, he just didn’t debrief properly.’”
However, reading the entire court’s statement demonstrates the court did not
merely defer to the government. The defendant bears the burden of showing by a
preponderance of the evidence he truthfully debriefed to qualify for safety valve, id.
at 947, and the district court held the defendant failed to meet his burden: “And I think
in this particular case they have plenty of evidence to show that he wasn’t always
telling the same thing.”
Regardless of the standard to be applied, Gomez-Perez claims he met the fifth
requirement by “pleading guilty, accepting responsibility, and having nothing to add
to the information he provided initially, or which was through the Government
interviewing or proffering other defendants who claimed they knew of Gomez-Perez’s
level of involvement with controlled substances.” Appellant’s Br. at 12-13. Gomez-
Perez asserts “he wasn’t always telling the same thing” is an insufficient basis on
which to deny safety valve relief. However, this is incorrect. A district court finding
a defendant told several different versions of a story is a sufficient basis to find the
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defendant failed to truthfully and completely disclose. See, e.g., id. at 948 (upholding
denial of safety valve relief in part because “[d]etails in the statements given by
appellants changed as the investigation progressed and during the course of their
proffers” and “[a]ppellants did not provide the district court any basis to believe that
their latest stories were more reliable than their discredited or withdrawn claims”).
This is not to say, however, a district court may not credit the last version of events
as truthful and grant safety valve relief on such basis. See United States v. Morones,
181 F.3d 888, 891 (8th Cir. 1999) (“Although the defendant in this type of case may
have told the government inconsistent stories, it serves the purposes of the safety
valve to grant relief if the sentencing court is persuaded that the last story is complete
and truthful.”). The district court in the instant case, however, failed to credit the final
version of Gomez-Perez’s story.
Undaunted, Gomez-Perez asserts the case should be remanded because the
district court improperly relied on the testimony of Martin Barragan-Torres, who was
also convicted in a drug conspiracy. Gomez-Perez argues the district court should
have made a further inquiry into whether Barragan-Torres’s testimony had a sufficient
indicia of reliability where the court merely stated: “I wasn’t too impressed with
Barragan. He said that he received a threat, and his parents say he wasn’t threatened,
seems to be contrary to what he was saying.” Sent. Tr. Nov. 8 at 48.
However, even assuming such claim had merit, the district court’s decision did
not hinge on the testimony of Martin Barragan-Torres. The district court noted “he
has told them, before he ever got to court here, a couple of different statements and
so forth,” and “in this particular case they have plenty of evidence to show that he
wasn’t always telling the same thing.” Id. at 57, 68.
As the government points out, during Gomez-Perez’s post-Miranda interview,
he claimed he purchased pounds of methamphetamine and sold drugs to a confidential
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informant fifteen times. During his proffer, however, Gomez-Perez stated he only
purchased ounces of methamphetamine six or eight times and delivered
methamphetamine a few times. At such proffer, he only admitted amounts of
methamphetamine totaling less than 500 grams. His statements were inconsistent with
other defendants who discussed his drug activity.
At sentencing, co-defendant Eric Johnson testified he personally witnessed
Gomez-Perez sell him and co-conspirator Richard Clifford twelve ounces of
methamphetamine on five occasions. Richard Clifford testified he purchased at least
five pounds of methamphetamine from Gomez-Perez. Barragan-Torres testified he
purchased fifteen pounds of methamphetamine from Gomez-Perez, including two
pounds seized from Gomez-Perez’s residence when he was arrested.
Gomez-Perez then testified at sentencing he only purchased nine or ten ounces
of methamphetamine and never had anything to do with Johnson. He also denied
selling any methamphetamine to Barragan-Torres and testified he had not sold drugs
to a confidential informant fifteen times. He claimed he told the officers everything
he knew, and explained the change in his story by stating both his English and
interpreter were bad. On cross-examination, however, Gomez-Perez became confused
and stated he could not remember the amount of drugs involved. He also stated he did
not know the price of a pound of methamphetamine, despite an officer’s testimony
describing how Gomez-Perez supplied officers with the figure of $3,000 in his post-
Miranda interview.
On the next day of the sentencing hearing, Gomez-Perez remembered receiving
fourteen ounces of methamphetamine, as well as an additional four ounces of
methamphetamine from Barragan-Torres (but asserts he returned the four ounces).
This change allowed Gomez-Perez to maintain his guilty plea by establishing more
than 500 grams of methamphetamine.
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While Gomez-Perez asserts translation issues led to his evolving story, he
acknowledged he understood English to the point of answering two questions during
sentencing before the interpreter could translate. Sent. Tr. Nov. 7 at 57. Moreover,
his story changed even with a court-certified translator and despite exhortations to
think very carefully and to search his memory. See, e.g., id. at 55.
Therefore, because a “District Court’s findings regarding the credibility of
witnesses are virtually unreviewable on appeal,” United States v. Santana, 150 F.3d
860, 864 (1998), it was not clear error for the court to deny safety valve relief by
finding Gomez-Perez did not meet his burden of showing he provided complete and
truthful disclosure to government interviewers regarding his involvement in the
present offense.
II
Gomez-Perez next asserts the case should be remanded because the district
court established the quantity of drugs through witness testimony without discussing
whether the challenged evidence lacks indicia of reliability. He does not argue the
district court improperly credited testimony; he only asserts the court failed to state
whether the challenged evidence lacks indicia of reliability. See United States v.
Reynolds, 49 F.3d 423, 426 (8th Cir. 1995) (remanding where district court failed to
discuss whether hearsay evidence bore indicia of reliability).
We review the district court’s determination of drug quantity for clear error.
United States v. Gonzales-Rodriguez, 239 F.3d 948, 953 (8th Cir. 2001). The district
court’s finding of the credibility of witnesses is “virtually unreviewable on appeal.”
United States v. Jones, 160 F.3d 473, 480 (8th Cir. 1998).
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Here, the district court stated, regarding the testimony of Barragan-Torres, “I
have to ask one of the probation officers where we’d be if I took off and didn’t believe
anything that Barragan said and then what that would do, if anything, to the matter of
quantity.” Sent. Tr. Nov. 8 at 54. After a recess the court noted:
And it is true that if we didn’t take any quantity from Barragan,
that it would reduce it from a 36 down. But I am not finding that
Barragan didn’t do something, didn’t have some relationship to the
situation, Barragan didn’t – or what he said was a hundred percent lie.
So I can’t in good conscience, say I’m not added anything up that
Barragan would have – or did say. So we’re not going to change the
quantity . . .
Id. at 59.
Gomez-Perez asserts the statement “I am not finding that . . . what he said was
a hundred percent lie” is confusing and contradictory and thus a remand is warranted.
The government replies the court, while acknowledging some level of uncertainty,
chose to credit and accept the testimony of Barragan-Torres. We agree the district
court expressly declined to not credit Barragan-Torres’s testimony. The district court
can determine drug quantity using “imprecise evidence, so long as the record reflects
a basis for the court’s decision.” United States v. Roach, 164 F.3d 403, 413-14 (8th
Cir. 1998). Here, the district court credited Barragan-Torres’s testimony, and such
credibility determination is “virtually unreviewable on appeal.” Jones, 160 F.3d at
480. The district court did not clearly err.
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III
For the reasons stated above, Gomez-Perez’s sentence is affirmed.
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