United States v. Francesco Longo

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-13206 ELEVENTH CIRCUIT
JUNE 6, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 05-00263-CR-T-17MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCESCO LONGO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 6, 2008)
Before EDMONDSON, Chief Judge, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Francesco Longo appeals his conviction and 78-month
sentence for conspiracy to manufacture, distribute and possess with intent to
distribute methylenedioxymethamphetamine (“MDMA”), in violation of 21 U.S.C.
§§ 841, 846. No reversible error has been shown; we affirm.
On appeal, Longo argues that his lawyer rendered ineffective assistance
when he allowed Longo to testify at sentencing about drug quantity because his
testimony resulted in the denial of safety-valve and acceptance of responsibility
reductions. Because the record is not sufficiently developed to evaluate Longo’s
ineffective assistance of counsel claims at this time, we will not consider them.
United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (explaining that we
generally will not consider claims of ineffective assistance of counsel on direct
appeal “where the district court did not entertain the claim nor develop a factual
record”).
Longo next argues that his rights under Article 36 of the Vienna Convention
on Consular Relations (“VCCR”)1 were violated because the government failed to
advise him of his right to a Canadian lawyer; he says that statements he made
should be suppressed and that his case should be remanded so the district court
can determine whether he was prejudiced by the violation. We have concluded
1
The VCCR, to which the United States is a party, provides that a foreign national who is arrested
has the right to contact the consular post of his home country and that arresting authorities must
inform the detainee of that right; if the detainee asserts that right, the arresting authorities must
forward any desired communications to the local consulate’s office. Maharaj v. Sec’y, Dep’t of
Corr., 432 F.3d 1292, 1304 (11th Cir. 2005).
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that the VCCR does not confer judicially enforceable individual rights and,
therefore, that the only remedies for a violation of the VCCR are diplomatic,
political, or derived from international law. Maharaj, 432 F.3d at 1307; see also
United States v. Duarte-Acero, 296 F.3d 1277, 1281-82 (11th Cir. 2002)
(determining that suppression of evidence and dismissal of a criminal indictment
were not available remedies for an alleged violation of Article 36 of the VCCR).
Because Longo does not have an enforceable individual right under the VCCR, the
remedies he seeks for the alleged violation are unavailable to him; and his
argument for remand fails.2
We turn to Longo’s sentencing argument. He argues that the district court
erred in denying him safety-valve and acceptance of responsibility reductions
based on testimony at sentencing by him and a law enforcement officer about drug
quantity because the evidence did not show that he knowingly committed perjury
but, instead, showed that he simply did not remember his prior debriefing
testimony.
Under U.S.S.G. § 5C1.2(a), a district court shall sentence a defendant in
certain drug cases “without regard to any statutory minimum sentence” if the
2
Longo also submits that the district court should have treated the VCCR violation as a sentencing
factor. But a treaty violation is not a sentencing factor that the district court is required to consider.
See 18 U.S.C. § 3553(a).
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defendant meets five listed criteria. When reviewing the denial of safety-valve
relief, we review a district court’s factual determinations for clear error. United
States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004). And the burden is on the
defendant to show that he has satisfied all of the safety-valve factors and that the
information he has provided is truthful. United States v. Cruz, 106 F.3d 1553,
1557 (11th Cir. 1997).
Section 5C1.2(a)(5) requires a defendant to disclose truthfully and fully the
information within his knowledge about the crime for which he is being sentenced.
See United States v. Figueroa, 199 F.3d 1281, 1283 (11th Cir. 2000). At
sentencing, Longo testified about the number of pills of MDMA for which he
should be held accountable. During his testimony, he stated that he did not
remember the exact number of successful “cooks” he had conducted after his co-
conspirator taught him how to make MDMA, but thought that it was one or two.
The government asked if he recalled his prior debriefing where he told a law
enforcement officer that he had conducted four or five successful cooks. Longo
testified that he remembered the debriefing, did not remember how many cooks he
had said he made, but specifically denied ever saying that he conducted four or
five cooks. The officer who debriefed Longo then testified that Longo told him,
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during the debriefing, that Longo conducted four to five successful cooks of
MDMA.
We conclude that the district court did not clearly err in denying safety-
valve relief. The district court determined that the officer’s testimony was credible
and Longo’s was not; we defer to this determination. See United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (explaining that credibility
determinations are the province of the fact-finder and that, in evaluating the
factual version of events between a law enforcement officer and a witness, we will
defer to the district court’s determinations “unless [its] understanding of the facts
appears to be ‘unbelievable’”). Based on the officer’s testimony, Longo did not
testify truthfully either about his debriefing or about the number of successful
MDMA cooks he conducted. As such, he failed to carry his burden in showing
that he was eligible for safety-valve relief.
The district court also did not clearly err in denying Longo an acceptance of
responsibility reduction. United States v. Moriarty, 429 F.3d 1012, 1022 (11th
Cir. 2005) (reviewing factual determination about the denial of acceptance of
responsibility for clear error). Where, as here, a defendant pleads guilty but
falsely denies relevant conduct that the court determines to be true, he fails to meet
his burden in showing he clearly demonstrated acceptance of responsibility under
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U.S.S.G. § 3E1.1. United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005);
see also Moriarty, 429 F.3d at 1022-23 (“[t]he sentencing judge is in a unique
position to evaluate a defendant’s acceptance of responsibility;” such
determination is entitled to great deference on review and will not be reversed
unless the record clearly demonstrates that the defendant has accepted
responsibility).
AFFIRMED.
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