United States v. David Danso , 664 F.3d 936 ( 2011 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2011 Decided December 27, 2011
No. 10-3094
UNITED STATES OF AMERICA,
APPELLEE
v.
DAVID NANA DANSO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00281-2)
Jerry Ray Smith Jr., appointed by the court, argued the
cause and filed the briefs for appellant. John O. Iweanoge II
and A. J. Kramer, Federal Public Defender, entered
appearances.
John L. Hill, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen
Jr., U.S. Attorney, and Roy W. McLeese III and John K. Han,
Assistant U.S. Attorneys.
Before: BROWN, Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.
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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: To be eligible for the
so-called “safety-valve” reduction in sentence under 18
U.S.C. § 3553(f), a defendant must “truthfully provide[] to the
Government all information and evidence the defendant has
concerning the offense.” 18 U.S.C. § 3553(f)(5). Appellant
David Danso pleaded guilty to a relatively simple drug deal—
he arranged a sale between one supplier and one buyer. But
the deal also involved two samples, one acquired for
marketing purposes from the supplier of the drugs ultimately
sold (but never actually delivered to the buyer here), the other
delivered to the buyer (but acquired from an apparently
unrelated source). The question is whether Danso could
qualify under § 3553(f)(5) without disclosing the fate of the
sample provided by the seller but not delivered in this
transaction, or the origin of the sample that he did deliver to
the buyer. The district court held that he could not qualify; we
agree, and thus affirm.
Danso pleaded guilty to conspiracy to distribute and
possess with intent to distribute 100 grams or more of a
mixture and substance containing heroin, in violation of 21
U.S.C. §§ 841, 846. In his factual proffer, he admitted
brokering a drug deal between Mouloukou Toure (the
supplier) and a confidential witness (“CW”) (the purported
buyer). Toure had given Danso a sample of heroin to
distribute to potential customers. But when Danso, Toure,
and the CW met to discuss the deal, Danso told Toure he had
not given the CW Toure’s sample, but rather had used another
sample and had told the CW that Toure’s heroin was better.
The three then agreed to proceed with the deal; they
completed it later that day.
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In anticipation of sentencing, the government took the
position that Danso, in a special safety-valve debriefing, had
not provided all the information required for satisfying
§ 3553(f)(5). Specifically, it argued that to be eligible Danso
should at a minimum have disclosed (1) the identity of the
person from whom Danso had received the non-Toure sample,
and (2) the identity of the person to whom he gave the Toure
sample. Gov’t’s Mem. in Aid of Sentencing Re:
Inapplicability of Safety Valve ¶ 15 (Aug. 19, 2010),
Appellant’s Appendix (“App.”) 37-38.
The district court denied the safety-valve reduction,
relying on Danso’s failures to provide (among other things)
the identities of the non-Toure-sample supplier and the Toure-
sample recipient. It concluded that Danso failed to show “that
he truthfully revealed what he [knew] about the circumstances
of the offense of conviction.” Sentencing Tr. 29 (Sept. 8,
2010), App. 88. The court imposed a 60-month sentence, the
mandatory minimum under the Sentencing Guidelines in the
absence of safety-valve eligibility.
It is the defendant’s burden to establish by a
preponderance of the evidence that he is entitled to safety-
valve relief. United States v. Mathis, 216 F.3d 18, 29 (D.C.
Cir. 2000). We review the district court’s legal conclusions
de novo, and its factual findings, including credibility
determinations, for clear error. See In re Sealed Case, 105
F.3d 1460, 1462 (D.C. Cir. 1997); United States v. Gales, 603
F.3d 49, 53 (D.C. Cir. 2010).
* * *
The parties agree that Danso met four out of the five
requirements for safety-valve eligibility. The disputed fifth
provision requires that
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not later than the time of the sentencing hearing, the
defendant has truthfully provided 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, but 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.
18 U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(a)(5). The
last half of the provision, the entire “but . . .” clause, manifests
the drafters’ effort to address the anomaly presented by
§ 5K1.1 of the Sentencing Guidelines, which by requiring
“substantial assistance” to the government tends to render
small fry ineligible—they are likely to be relatively
uninformed. See Gales, 603 F.3d at 52; United States v.
Shrestha, 86 F.3d 935, 938 (9th Cir. 1996). Danso contends,
as every circuit to address the issue has held, that the relevant
information can be provided any time before sentencing, even
if the defendant previously lied about it. See United States v.
Schreiber, 191 F.3d 103, 106 (2d Cir. 1999); United States v.
Powell, 387 F. App’x 491, 494-95 (5th Cir. 2010); United
States v. Mejia-Pimental, 477 F.3d 1100, 1105-06 (9th Cir.
2007); United States v. Brownlee, 204 F.3d 1302, 1305-06
(11th Cir. 2000); United States v. Tournier, 171 F.3d 645,
647-48 (8th Cir. 1999); United States v. Gama-Bastidas, 142
F.3d 1233, 1242-43 (10th Cir. 1998); see also United States v.
Bermudez, 407 F.3d 536, 543 (1st Cir. 2005) (assuming
without deciding same); but see United States v. Alvarado,
326 F.3d 857, 862 (7th Cir. 2003) (reserving question whether
“eleventh-hour cooperation immediately before the sentencing
hearing begins will always be regarded as timely”). The
government appears to acquiesce.
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There is also no dispute as to what information Danso did
and did not provide the government. The two primary pieces
of information not disclosed and at issue on appeal are the
same two identified by the government in its sentencing
memorandum. The open question is whether those items
qualify as “information . . . concerning the offense.” We
discuss each in turn.
Non-Toure sample. Danso did not dispute at sentencing,
or on appeal, that he failed to provide the government with the
identity of this sample’s provider. Sentencing Tr. 28, App.
87. Rather, he argues that “there was insufficient evidence for
concluding that Mr. Danso’s conduct in relation to that sample
was part of the conspiracy offense he was being sentenced
on,” Appellant’s Br. 18-19, so that his naming the supplier
wasn’t essential to safety-valve eligibility.
Danso reads the district court’s decision as relying on the
fifth criterion’s reference to information concerning the
offense of conviction itself; i.e., he understands the court not
to have classified the missing information as “concerning . . .
offenses that were part of the same course of conduct or of a
common scheme or plan” (the latter portion of § 3553(f)(5)’s
opening clause). We agree. So Danso’s argument that the
sample played no role in the offense of conviction is relevant.
The trouble for Danso is that the evidence contradicts his
factual premise. Danso’s factual proffer in support of his
guilty plea explains that when Danso, the CW, and Toure met
to negotiate the deal,
Toure asked Danso if Danso had given his “sample” to
the CW. Danso stated that he had given the CW a
“sample,” but not Toure’s sample. Danso stated that he
had told the CW that Toure’s heroin is much better.
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App. 28. See also Appellee’s Br. 18. In short, Danso himself
told the government that he used the other sample both
directly and as a benchmark for proclaiming the superiority of
Toure’s drugs. So the sample was integrally linked to the
offense of conviction, and Danso’s acquisition of it “concerns
the offense.” Thus we think the case falls comfortably within
the range of cases denying safety-valve treatment for a
defendant who declines to identify his supplier, see, e.g.,
Gales, 603 F.3d at 53-54, even though ultimately the sample
in question was not part of the direct “chain of distribution”
from Toure to the CW, see United States v. Tate, 630 F.3d
194, 202 (D.C. Cir. 2011).
Danso’s most analytical argument is that because it would
have been consistent with the proffer for him to have given
the sample to the CW before the onset of the conspiracy, it
follows that such conduct was not “part” of the offense.
Appellant’s Br. 18, 21-22. But given that Danso used the
sample for marketing the Toure supply, information about its
acquisition “concerned” the offense. In fact, information
about many acts or circumstances might “concern” an offense
but not be a “part” of it in any legal sense. If the government
asked a bank robber how he got access to the getaway car, and
the truthful answer were an (innocent) friend or a car-rental
agency, the information would still “concern” the offense.
Toure sample. The district court also found that Danso
“[did] not rebut that he refused to answer any question about
whom he gave the Toure heroin sample to.” Sentencing Tr.
29, App. 88. Danso does not contest the propositions that
Toure gave him the sample for the purpose of recruiting
customers and that, when asked to whom he gave the sample,
“[h]e refused to answer that question.” Sentencing Tr. 26,
App. 85. On appeal Danso in effect invokes the rule of trial
practice against questions that assume a fact not in evidence
(the most infamous example being, “When did you stop
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beating your wife?”). He points out that “no evidence was
ever presented or referred to to indicate that Mr. Danso had
ever given the sample to anyone.” Appellant’s Br. 24. True
enough. But Danso offers nothing to support the idea—which
flies in the face of common sense—that he could not have
responded by truthfully telling the government agents his
actual method of disposition, whatever it may have been:
transferring it to a third party, dropping it into a river, hiding it
under a stone. He gives no reason to think the government’s
framing of the question precluded a truthful response slightly
beyond its literal wording.
Apart from that, Danso’s argument about the Toure
sample adds nothing to what we just considered in relation to
its converse.
In sum, we find that both the identity of the non-Toure
supplier and what Danso did with the Toure sample are pieces
of information that concerned his offense of conviction; his
providing them to the government on request was thus
essential to safety-valve relief. Thus we need not consider
the government’s arguments that Danso’s responses (or non-
responses) to other questions supplied additional bases for
rejecting the safety valve. Danso’s omission of the above
items clearly represented a failure to provide “all information
. . . concerning the offense.”
* * *
The judgment of the district court is
Affirmed.