United States v. Padilla-Colon

United States Court of Appeals
For the First Circuit
No. 07-2372
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ PADILLA-COLÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and DiClerico, District Judge.*
Hector L. Ramos-Vega, Assistant Federal Public Defender, with
whom Joseph C. Laws, Jr., Federal Public Defender, was on brief,
for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, was on brief,
for appellee.
July 31, 2009
*
Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. José Padilla-Colón ("Padilla") was
charged with one count of possession with intent to distribute 7.1
grams of cocaine base, or "crack," in violation of 21 U.S.C. §
841(a)(1), (b)(1)(B)(iii). Pursuant to a plea agreement, Padilla
pled guilty and waived his right to appeal. At sentencing the
district court determined that Padilla did not qualify for the
"safety valve" provision, 18 U.S.C. § 3553(f), and thus was subject
to a mandatory minimum sentence of five years. On appeal, Padilla
argues that the district court erred in finding that he did not
meet the requirements of the safety valve, and that, despite the
waiver, the plea agreement does not bar his appeal. Applying the
test established in United States v. Teeter, 257 F.3d 14, 24-26
(1st Cir. 2001), we find that the waiver of appeal is invalid.
However, because the district court did not err in denying Padilla
the benefit of the safety valve, we affirm the sentence.
I
Where an appeal follows a guilty plea, we draw the facts
from the plea colloquy, the unchallenged portions of the
presentence investigation report, and the transcript of the
sentencing hearing. United States v. Mercedes Mercedes, 428 F.3d
355, 357 (1st Cir. 2005). In this case we also rely on the signed
statement of facts accompanying the appellant's plea agreement.
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See United States v. Laguna-Estela, 394 F.3d 54, 55 (1st Cir.
2005).
After receiving a telephone call from a source claiming
that Padilla was armed and stored weapons for another individual,
Puerto Rico police surveilled his property on January 20 and 24,
2006. On both occasions, they observed Padilla carrying a weapon
in his waistband.1 On the second occasion, they saw him holding a
bag from which the barrel of a rifle was protruding. He was also
observed getting into and out of his car, a white Suzuki Vitara.
On February 3, police executed a search warrant for Padilla's home
and car. While searching the vehicle, officers discovered a gym
bag containing 160 vials of crack and 121 rounds of .40 caliber
ammunition.
On May 24, 2006, a federal grand jury returned a two-
count indictment against Padilla, charging him with possession with
intent to distribute several controlled substances. At
arraignment, Padilla pled not guilty and then moved to suppress the
evidence recovered in the search of his car. After the district
court denied the motion, Padilla and the government executed a plea
agreement on November 30. Under its terms, the government promised
to move to dismiss the indictment. Padilla would then plead guilty
to an information charging him with one count of possession with
1
The visual display of a firearm is a crime under Puerto Rico
law. See P.R. Laws Ann. tit. 25, § 456a(d)(1).
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intent to distribute 7.1 grams of crack. Padilla also agreed not
to appeal his sentence, as long as the district court "accept[ed]
[the plea] agreement and sentence[d] him according to its terms and
conditions."
Based on the quantity and kind of drugs recovered, the
plea agreement calculated Padilla's base offense level under the
Sentencing Guidelines as 26, but identified reductions for
acceptance of responsibility and compliance with the safety valve,
resulting in an adjusted base offense level of 21. The agreement
then stated,
A total base offense level of 21 and a
Criminal History Category I results in a
guideline sentencing range of 37-46 months.
In the event the defendant fails to comply
with all of the provisions of the safety
valve, the adjusted base offense level remains
at 23 which has a corresponding imprisonment
range of 46-57 months. As the parties are
aware, however, for possession of five (5)
grams or more of cocaine base the statutory
penalty is not less than five years
imprisonment.
Shortly thereafter, the agreement specified the safety valve
requirements and noted, "Should defendant meet all the requirements
of the 'safety valve' provisions . . . , defendant's Base Offense
Level shall be reduced by two (2) levels."
A change-of-plea hearing was held on November 30. At the
hearing, the magistrate judge inquired into Padilla's understanding
of the sentencing recommendation. At the magistrate's request, an
Assistant United States Attorney explained the sentencing
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guidelines calculation and the maximum penalties possible for the
offense, including the mandatory minimum sentence of five years.
He discussed the safety valve reduction, explaining,
should [Padilla] comply with all of the
provisions of the safety valve, he is also
looking at an additional two (2) point
reduction . . . . The Defendant understands
that should he fail to meet safety valve, then
of course he is looking at a base offense
level of 23 . . . . All of that
notwithstanding Judge, there is a five (5)
years [sic] mandatory minimum . . . .
The magistrate judge confirmed that Padilla understood the
explanation, asking,
Do you understand that in order to be entitled
to the two (2) level reduction under the safet
[sic] valve, you shall comply with five (5)
requirements, as stated in paragraph nine (9)
of your plea agreement, [including the
requirement that you] must have provided
truthful information to the Government prior
to sentencing?
Padilla answered affirmatively.
The magistrate judge inquired into Padilla's
understanding of his waiver of appellate rights. After identifying
the waiver and reading its terms to Padilla, she asked, "Are you
aware that depending on the facts the court finds and the sentence
it eventually imposes, both you and the Government may appeal the
sentence in this case subject to that waver [sic]?" Padilla said
he was so aware, and then entered his guilty plea. The magistrate
judge found that Padilla knew the terms of the plea agreement and
had entered it "in an intelligent and voluntary manner." See Fed.
-5-
R. Crim. P. 11(b). She filed her Report and Recommendation on
December 11, 2006, recommending that the district court accept
Padilla's guilty plea. On December 21, the district court accepted
the plea.
In April 2007, two DEA agents and an Assistant United
States Attorney interviewed Padilla as part of the safety valve
process. During the interview, Padilla told the agents that he did
not own the gym bag seized from his car in the February 3, 2006
search. He had stolen it the night before, he said, from the trunk
of an abandoned car, where it had been stored by local drug dealers
who owed him money. Padilla had previously observed the dealers
place drugs and money in a bag and hide the bag in the car trunk.
Believing that the bag would contain money, he retrieved it from
the trunk; instead, it contained only drugs and ammunition.
Padilla did not know what to do with the contraband, and the next
morning it was seized by police. Before the interview ended, the
Assistant United States Attorney expressed some skepticism to
Padilla about his story.
In a sealed motion filed with the district court soon
after, the government indicated that it found Padilla's testimony
"not totally truthful." Several of Padilla's claims, prosecutors
said, lacked credibility: that he stole the gym bag from drug
dealers, that he had never possessed it before being arrested by
Puerto Rico police, and that he had never sold drugs or possessed
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a weapon. The claims conflicted with the sworn affidavit of a
Puerto Rico police officer, Agent Héctor Figueroa-Velázquez ("Agent
Figueroa"), who had surveilled Padilla in January 2006. Because
Padilla had not been totally truthful, the government said, he did
not qualify for the safety valve reduction. In his response,
Padilla emphasized that he had provided extensive detail to the
government agents about how he knew where the bag was, what it
might contain, and who owned it. He pointed out that his story was
consistent with other facts in the record and was corroborated in
part by the DEA agents present at the safety valve interview. In
contrast, Padilla claimed, the government had produced no evidence
proving that he had been untruthful. Prosecutors simply found his
story hard to believe.
On June 22, 2007, the district court issued a sealed
order finding Padilla ineligible for safety valve benefits. The
court observed that Padilla had "had trouble with his version [of
the facts] since his interview with the U.S. Probation Officer,"
one month before the safety valve debriefing. Padilla had changed
several parts of his story in response to questions raised by the
Probation Officer. Padilla repeated the changed story to the DEA
agents and the Assistant United States Attorney during his safety
valve interview. Moreover, the story contradicted the sworn
affidavit of Agent Figueroa.
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At his sentencing hearing on August 2, 2007, Padilla
moved the district court to reconsider its order denying him the
benefit of the safety valve. In response to the court's concern
that Padilla's story contradicted the sworn testimony of a police
officer, Padilla emphasized that he had long maintained that Agent
Figueroa lied in the affidavit, having moved on those grounds to
suppress the evidence obtained from the search of his car.
Moreover, Padilla insisted that he had only clarified his story in
response to doubts from the Probation Officer, not changed it. As
early as February 3, 2006, after he was arrested, and May 12, 2006,
in his preliminary hearing, Padilla had stated that he stole the
bag containing the drugs -- the same testimony he provided in the
safety valve interview. Finding nothing new in Padilla's request,
the court denied the motion.
Before sentencing Padilla, the court returned to his
waiver of appeal. It noted,
Mr. Padilla, although you pled guilty and
pursuant to the terms of your plea agreement
you waived your right to appeal the judgment
and the sentence imposed in this case, the
Court advises you that you can appeal your
conviction if you believe that your plea of
guilty was unlawful or involuntary, or if
there is some other fundamental defect in the
proceedings that was not waived by your plea
agreement.
The court then sentenced Padilla to the statutory mandatory minimum
of five years' imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii).
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II
Padilla appeals his sentence. Recognizing the potential
obstacle posed by the waiver of appeal in his plea agreement, he
asks that we not honor it because his claim falls outside its scope
and the waiver is invalid. As a substantive matter, he argues that
the district court erred in denying him the benefits of the safety
valve. The government contests both claims. Because Padilla's
right to seek relief from his sentence in this court turns on the
validity of the waiver of appeal, we determine the waiver's effect
before considering the substantive claim. See United States v.
Edelen, 539 F.3d 83, 85 (1st Cir. 2008).
A. Waiver of Appeal
We enforce a waiver of appeal if it is valid and the
defendant's claim lies within its scope. See United States v.
Acosta-Roman, 549 F.3d 1, 3 (1st Cir. 2008); United States v.
McCoy, 508 F.3d 74, 77 (1st Cir. 2007) ("Even a knowing and
voluntary appeal waiver only precludes appeals that fall within its
scope."). In this case, because we find that the waiver is
invalid, we need not reach the question of whether the defendant's
appeal falls within its scope.
A waiver of appellate rights is valid if the defendant
entered into it knowingly and voluntarily. United States v. Gil-
Quezada, 445 F.3d 33, 36 (1st Cir. 2006). We determine whether a
waiver was knowing and voluntary by applying the three-prong test
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announced in Teeter, 257 F.3d at 24. Under this test, an appellate
waiver is valid as long as: (1) the written plea agreement contains
a clear statement elucidating the waiver and delineating its scope;
(2) at the plea hearing the district court inquired specifically
about any waiver of appellate rights, and its interrogation of the
defendant sufficed to ensure that the waiver was knowing and
voluntary; and (3) the denial of the right to appeal would not
constitute a miscarriage of justice. See Teeter, 257 F.3d at 24-
25.
The written plea agreement satisfies the first prong of
the Teeter test. The language of the waiver itself elucidates the
right being waived by the defendant, namely, the "right to appeal
the judgment and sentence." The scope of the waiver is limited to
"this case" and to any sentence consistent with the plea
agreement's terms and conditions. We have previously held that the
same language satisfied the first Teeter prong. Gil-Quezada, 445
F.3d at 36; United States v. De-La-Cruz Castro, 299 F.3d 5, 10 (1st
Cir. 2002). Padilla does not contend otherwise.
The second prong of Teeter requires us to examine the
transcript of the colloquy between the court and the defendant at
the change-of-plea hearing. Teeter, 257 F.3d at 24. Our focus in
doing so is "to ascertain whether the court's interrogation
suffices to ensure that the defendant freely and intelligently
agreed to waive her right to appeal her forthcoming sentence."
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Id.; see also De-La-Cruz Castro, 299 F.3d at 10. As Federal Rule
of Criminal Procedure 11(b)(1)(N) requires, the colloquy must
include a specific inquiry "into any waiver of appellate rights."
Teeter, 257 F.3d at 24. In explaining the extent of the waiver and
what right of appeal remains, if any, the court "should be
especially careful in its choice of words, taking pains to explain
to the defendant that her right to appeal is circumscribed by her
preexisting waiver." Teeter, 257 F.3d at 25. Context is also
important in determining whether a statement is sufficiently
misleading to nullify a waiver. See United States v. Soto-Cruz,
449 F.3d 258, 261 (1st Cir. 2006) ("The context in which such a
statement is made is important to our determination . . . ."); De-
La-Cruz Castro, 299 F.3d at 11-12 ("Context is important . . . .");
Teeter, 257 F.3d at 24-25.
Padilla argues that statements by the court during his
change-of-plea and sentencing hearings were so misleading that they
abrogated his waiver of appeal. During the change-of-plea hearing,
the magistrate judge asked Padilla whether he understood that
"depending on the facts the court finds and the sentence it
eventually imposes, both you and the government may appeal the
sentence in this case subject to that waver [sic]?" Padilla points
out that the court posed this question shortly after explaining
that the guidelines sentencing range would depend on his
satisfaction of the safety-valve requirements, including the
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interview. In this context, he says, his affirmative answer to the
judge's question meant that he understood that he would retain the
right to appeal if the district court found that he was ineligible
for the safety valve. Padilla suggests that his misunderstanding
was subsequently "compounded" by the district court at sentencing,
when it stated that Padilla could appeal if he believed his guilty
plea "was unlawful or involuntary," or there was "some other
fundamental defect in the proceedings that was not waived by [the]
plea agreement."
We agree that, taken in context, the court's statement at
the change-of-plea hearing was so misleading that it nullified
Padilla's waiver of appeal. The court's choice of language -- that
Padilla could appeal "depending on the facts this court finds" --
reasonably suggested to Padilla that he retained a right to appeal
adverse factual findings. The context of the statement reinforced
this view. Because the statement closely followed the court's
explanation of the safety-valve, the phrase "the facts this court
finds" could reasonably have been understood by Padilla to refer to
safety-valve eligibility, and, in particular, to a finding that he
had failed to provide truthful information to the government. In
such a context, the magistrate judge's statement that Padilla could
appeal "depending on the facts this court finds" suggested that he
retained a right to appeal an adverse determination of his
eligibility for safety-valve relief.
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This suggestion by the court, rather than illuminating
the meaning of the written waiver of appeal, contradicted its
terms, which are not similarly limited in language or effect. By
its terms, Padilla's waiver covers appeals of his judgment and
sentence, and applies as long as the district court sentences him
according to the terms and conditions of the plea agreement. The
terms of the plea agreement do not guarantee Padilla that he will
be found eligible for safety-valve relief. Thus, Padilla waived
his right to appeal his sentence regardless of whether the court
found him eligible for the safety valve. See Acosta-Roman, 549
F.3d at 4 (discussing the terms of a similar waiver). By
suggesting that Padilla retained appellate rights in the event of
an adverse finding of safety-valve eligibility, the plea colloquy
was so misleading that we cannot regard Padilla's waiver as knowing
and voluntary.2
We therefore decline to enforce Padilla's waiver of
appeal. Because there is no need to reach the third prong of
Teeter, we now turn to the substantive claim on appeal.
2
Because we conclude that the statement made at the change-
of-plea hearing "mudd[ied] the waters," see Teeter, 257 F.3d at 25,
we need not reach the issue of the court's statement at sentencing.
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B. Safety Valve Eligibility
1. General principles
The standard of review applicable in safety-valve appeals
"varies according to the foundation upon which [the safety-valve]
determination is based." United States v. Matos, 328 F.3d 34, 38
(1st Cir. 2003). We review de novo safety-valve determinations to
the extent they rest on conclusions of law. Id. We review for
clear error safety-valve determinations to the extent they depend
on findings of fact. Id. The clear error standard is "extremely
deferential." United States v. Bermúdez, 407 F.3d 536, 542 (1st
Cir. 2005) (citing United States v. Marquez, 280 F.3d 19, 26 (1st
Cir. 2002)). Under it, "an appellate court ought not to disturb
either findings of fact or conclusions drawn from the record unless
the whole of the record compels a strong, unyielding belief that a
mistake has been made." Bermúdez, 407 F.3d at 542 (internal
quotation marks and citation omitted). Evaluation of witness
testimony is reviewed for clear error, since it involves "fact-
sensitive judgments and credibility calls." Matos, 328 F.3d at 40.
The "safety valve" provision exempts certain drug
offenders from mandatory minimum sentences. See 18 U.S.C. §
3553(f); U.S.S.G. § 5C1.2. Congress's purpose in enacting the
provision was to "mitigate the harsh effect of mandatory minimum
sentences" on first-time, low-level offenders in drug trafficking
schemes. United States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st
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Cir. 2000).3 To qualify for relief under the safety valve, a
defendant must meet five requirements. See 18 U.S.C. § 3553(f)(1)-
(5). Only the last requirement is at issue here.4 Under it, the
defendant must "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." See 18 U.S.C. § 3553(f)(5). "'[N]othing
short of truthful and complete disclosure will suffice.'" United
3
According to a House Report on the matter, while sentence
reductions for mitigating factors were available to the most
culpable, they did not operate to the benefit of the least
culpable, whose guideline sentences already fell below the
applicable mandatory minimums. See H.R. Rep. No. 103-460 (1994),
cited in United States v. Miranda-Santiago, 96 F.3d 517, 527 n.22
(1st Cir. 1996). In response, the House sought to exempt a "narrow
class" of drug defendants -- those least culpable -- from the
mandatory-minimum sentencing scheme. Id.4
The first four requirements are:
(1) the defendant does not have more than 1 criminal
history point, as determined under the sentencing
guidelines;
(2) the defendant did not use violence or credible
threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to do so)
in connection with the offense;
(3) the offense did not result in death or serious bodily
injury to any person;
(4) the defendant was not an organizer, leader, manager,
or supervisor of others in the offense, as determined
under the sentencing guidelines and was not engaged in a
continuing criminal enterprise, as defined in section 408
of the Controlled Substances Act . . . .
18 U.S.C. § 3553(f)(1)-(4).
The appellant asserts in his brief that the government does
not contest his satisfaction of the first four safety-valve
requirements. The government appears to agree.
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States v. Rodriguez-Ortiz, 455 F.3d 18, 25 (1st Cir. 2006) (quoting
Matos, 328 F.3d at 38). The defendant bears the burden of proving,
by a preponderance of the evidence, that he has satisfied this
requirement. See Miranda-Santiago, 96 F.3d at 529 n.25 (discussing
all five requirements under § 3553(f)). We now turn to the
specific claims of error, both of law and fact, raised by Padilla.
2. Legal claims
a. Burden of proof
Padilla argues that the defendant's burden of proof "does
not arise until the government has made some preliminary showing,
based on something more than opinion or disbelief, that the
[safety-valve] proffer is incomplete or untruthful." Here, Padilla
says, the government simply asserted to the district court that it
found Padilla's story implausible. Taken alone, he argues, such an
assertion is insufficient to support a finding that Padilla was
untruthful.
There is no support in our law for the proposition that
the government must make a "preliminary showing" before the
defendant's burden of proof arises. The cases cited by the
defendant establish only that "when the record, taken as a whole,
will not support a finding that the defendant has failed to provide
a truthful and complete proffer, the government's lack of
confidence in the proffer is insufficient, in and of itself, to
justify a denial of access to the safety valve." Marquez, 280 F.3d
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at 24; see United States v. White, 119 F.3d 70, 73-74 (1st Cir.
1997); Miranda-Santiago, 96 F.3d at 529. Where the record does
provide some support, "a sentencing court may reject a safety valve
proffer based on its reasoned assessment of the defendant's
credibility in light of the facts." Marquez, 280 F.3d at 24
(citing White, 119 F.3d at 74). It need not base its determination
on "independent rebuttal evidence" introduced by the government.
Id.Within this framework, a defendant's insistence that he
has provided truthful and complete information does not necessarily
overcome an unfriendly record. See id. at 24-25 (observing that
otherwise, "district courts would be bound to accept even the most
arrant nonsense from a defendant's mouth so long as the government
could not directly contradict it by independent proof," in effect
"turn[ing] the burden of persuasion inside out"). Rather, when
faced with a defendant who insists that he proffered truthful
information, the sentencing court may make its own reasoned
determination, in light of the facts on record, whether to credit
the defendant's assertion. See United States v. Bravo, 489 F.3d 1,
12 (1st Cir. 2007) (upholding rejection of admittedly "consistent"
story in light of agent's testimony that it was "illogical");
Rodriguez-Ortiz, 455 F.3d at 25 (upholding denial of safety valve
where district court did not credit defendant, who "simply den[ied]
the charges against him," in light of his contradiction by record
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evidence); Marquez, 280 F.3d at 24-25. In the present case, the
sentencing court followed precisely this method, identifying in its
order specific facts on the record, see supra section I, in light
of which the court refused to credit Padilla's assertion that he
provided truthful information.
b. Proper basis for safety-valve determination
Padilla argues that the sentencing court erred in basing
its determination on information other than the safety-valve
proffer itself, namely, an earlier interview conducted by the case
Probation Officer. That interview, he says, was conducted "only
for acceptance of responsibility purposes." As such, it was "more
limited" than the safety-valve interview and should not be
considered.
Once again Padilla fails to adduce any legal authorities
in support of his position. In fact, sentencing courts assessing
eligibility for the safety valve routinely rely on a variety of
record materials in determining whether a defendant has provided
truthful and complete information. See Bermúdez, 407 F.3d at 542(upholding determination based on comparison between safety-valve
proffer and testimony at trial of co-defendant); Marquez, 280 F.3d
at 24 (noting "internal inconsistencies between the proffer and
other statements that the [defendant] himself had made"); Matos,
328 F.3d at 40 (upholding district court's determination in light
of "other evidence that can be gleaned from the record"). There is
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no sensible reason to limit the assessment of truthfulness to the
safety-valve proffer itself. Inconsistencies between statements
made during the proffer and statements made to the authorities on
other occasions are not necessarily disqualifying. But the court
may legitimately consider such inconsistencies in deciding on the
truthfulness of the proffer.
3. Factual claims
Padilla argues that the district court committed clear
error in finding that his safety-valve proffer had not been
truthful. He makes several discrete challenges.
a. The change in Padilla's story
Padilla argues that the district court clearly erred in
concluding that he had changed his account of the offense. We
disagree. Even assuming, arguendo, that the two interviews
differed in purpose, as Padilla argues, that difference cannot
account for the material alterations Padilla made to his story on
retelling. According to Padilla's initial account, he stole the
bag containing the contraband when he was "visiting a friend [and]
observed a man hiding a gym bag in the trunk of a vehicle." He
stole it "thinking that maybe it was full of cash." After the
Probation Officer expressed concern that Padilla had not provided
her with "complete, accurate and truthful information," Padilla
told a different story. He stated that he knew the owners of the
bag, that they owed him $5,000, and that they had failed to pay him
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back. During his safety-valve interview, he also stated that he
had previously purchased drugs from the owners of the bag and that
he expected the bag to contain drugs when he stole it. Even if the
rough outlines of the two stories are consistent, the details and
their implications differ markedly, and it cannot be clear error
for a sentencing court to take note of such differences and find in
those differences a lack of truthfulness.
b. Agent Figueroa's affidavit
Padilla argues that the sentencing court committed clear
error by crediting Agent Figueroa's affidavit. Again, we disagree.
To be sure, Padilla has long insisted that Agent Figueroa falsified
his affidavit. On the basis of this allegation and the required
preliminary showing, Padilla obtained a hearing under Franks v.
Delaware, 438 U.S. 154 (1978), to determine the validity of the
February 3, 2006 search warrant, which was based on the affidavit.
In her Report and Recommendation, the magistrate judge who presided
over the Franks hearing identified several reasons to question the
veracity of Agent Figueroa's affidavit. Yet the magistrate judge
also credited Agent Figueroa's testimony during the hearing, noting
that he was "forthright in demeanor" and that "some evidence . . .
corroborated Figueroa's version of events." She ultimately upheld
the validity of the search warrant, and submitted Proposed Findings
of Fact based on Agent's Figueroa's testimony. In light of this
outcome and the substance of the magistrate judge's report, we
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cannot conclude that the district court committed clear error in
giving the affidavit the weight that it did. See Matos, 328 F.3d
at 40-41 ("[W]hen more than one sensible interpretation . . . can
supportably be drawn, a sentencing court's decision to credit one
alternative and reject another cannot be deemed clearly
erroneous."). Taking the measure of a sworn statement in view of
its attempted impeachment is typical fact-finding, and the record
simply does not compel a "strong, unyielding belief that a mistake
has been made." See Bermúdez, 407 F.3d at 542 (internal quotation
marks and citation omitted).
c. The bag
Lastly, Padilla argues that the sentencing court
committed clear error by determining that the bag seized from his
car during the February 3, 2006 search was the same bag Agent
Figueroa observed Padilla using to carry a rifle on January 24,
2006. It is true that the bag described in Agent Figueroa's
affidavit was "blue and grey," while the bag discovered in the
search of Padilla's automobile is described as being simply blue.
However, the colors and features of the bags are not so dissimilar
that it amounts to clear error to conclude that they were the same.
The court might have discounted Agent Figueroa's testimony that the
bag observed on January 24 was blue and grey, and not entirely
blue, on the basis of his line of sight -- a matter thoroughly
discussed during the Franks hearing. Agent Figueroa himself
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testified that the bags were similar, although he was unsure
whether they were the same. In light of the descriptions of the
bags, the court's determination that they were the same was not
clear error.
d. Summary
As the record reveals, the story Padilla told at his
safety-valve debriefing differed in material respects from Agent
Figueroa's affidavit. Padilla denied ever possessing a weapon,
while Agent Figueroa stated that he observed Padilla with three
weapons. Moreover, Padilla altered his own account of how he
acquired the bag of drugs and ammunition seized from his car during
the February 3, 2006 search. There were no clear errors in the
district court's specific factual findings, as set forth in its
order rejecting Padilla's eligibility for the safety valve.
District courts may reject safety-valve proffers based on a
"reasoned assessment of the defendant's credibility in light of the
facts" on record. Marquez, 280 F.3d at 24. Such was the case
here.
Affirmed.
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