United States v. Margarito Cortez , 256 F. App'x 862 ( 2007 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-1128
    ___________
    United States of America,                 *
    *
    Appellee,                    * On Appeal From the United
    * States District Court for the
    v.                           * Northern District of Iowa.
    *
    Margarito Cortez,                         *    [UNPUBLISHED]
    *
    Appellant.                   *
    ___________
    Submitted: November 14, 2007
    Filed: December 7, 2007
    ___________
    Before MELLOY, BEAM, SHEPHERD, Circuit Judges.
    ___________
    PER CURIAM.
    Margarito Cortez pleaded guilty to (1) conspiracy to distribute 500 grams or
    more of methamphetamine mixture, fifty grams or more of actual methamphetamine,
    and cocaine salt, and (2) distribution of fifty grams or more of actual
    methamphetamine. At sentencing, the only issue was whether Cortez provided a
    complete and truthful statement as required by United States Sentencing Guideline §
    5C1.2(a)(5) to qualify for safety valve relief. The district court1 held that Cortez failed
    to demonstrate by a preponderance of the evidence that he had been truthful and
    1
    The Honorable Mark W. Bennett, United States District Judge for the Northern
    District of Iowa.
    sentenced Cortez to the mandatory minimum–concurrent 120-month sentences of
    imprisonment. Cortez appeals, claiming the district court erred in its safety valve
    determination. We affirm.
    "We will overturn a district court's findings with respect to safety valve
    eligibility only if they are clearly erroneous." United States v. Guerra-Cabrera, 
    477 F.3d 1021
    , 1024-25 (8th Cir. 2007). It is a defendant's burden to establish that he has
    met each of the eligibility requirements and "[a]ffirmance is required so long as the
    record supports those findings, regardless of which party is favored." 
    Id. at 1025
    .
    Additionally, we generally do not disturb a district court's credibility finding. United
    States v. Soto, 
    448 F.3d 993
    , 996 (8th Cir. 2006).
    The district court based its credibility determination on three main facts.
    Demonstrated below, Cortez gave inconsistent accounts concerning the amount of
    cocaine he distributed as well as whether he saw two other men, who were in the
    bathroom of his trailer with him at the time the police executed the search warrant,
    flush cocaine down the toilet. Additionally, there was conflicting testimony at
    sentencing as to whether Cortez ever sold drugs to two particular men.
    During Cortez's initial interview with the police following his arrest, Cortez told
    the officer, among other things, that he distributed around twenty ounces of cocaine.
    At a subsequent proffer interview, Cortez said he sold only eight ounces of cocaine
    and, when asked specifically, that he did not sell drugs to Raymond Barrone, Sr. or
    Raymond Barrone, Jr. At sentencing, Cortez testified that, in fact, he sold around
    twenty ounces and that he was not truthful with the police during his proffer
    interview.
    In rebuttal, the investigating officer testified about his involvement in the
    investigation and subsequent arrest of Cortez, including the officer's daily contact with
    a confidential informant who was living with Cortez. This officer testified that based
    -2-
    upon the information received from the confidential informant, Ray Barrone, Sr. first
    introduced Cortez to the confidential source and Cortez sold drugs to Ray Barrone, Jr.
    Further, the officer testified that Ray Barrone, Jr. frequented Cortez's trailer. Finally,
    the officer testified that the bathroom in the trailer was quite small and it would be
    physically impossible for Cortez not to observe two others flushing cocaine down the
    toilet. Cortez testified at sentencing that he was in the bathroom brushing his teeth but
    did not see anything. The officer stated that there were three men, including Cortez,
    in the trailer bathroom at the time the police executed the search warrant, cocaine was
    on the faces of two of the men as well as on the floor and rim of the toilet, and that
    cocaine was flying everywhere.
    Given these inconsistencies, the record supports the district court's finding that
    Cortez was untruthful and failed to meet his burden to prove he qualified for safety
    valve relief. The court did not clearly err in denying Cortez safety valve relief. We
    therefore affirm.
    ______________________________
    -3-
    

Document Info

Docket Number: 07-1128

Citation Numbers: 256 F. App'x 862

Judges: Melloy, Beam, Shepherd

Filed Date: 12/7/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024