United States v. Jose Salutiano-Hernandez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 31, 2007
No. 06-12179 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00508-CR-T-24EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SALUTIANO-HERNANDEZ,
a.k.a Jose Salutiano Hernandez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 31, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Jose Salutiano-Hernandez appeals his 168-month sentence imposed
following his guilty plea for conspiracy to possess and possession with intent to
distribute five kilograms or more of cocaine while aboard a vessel subject to the
jurisdiction of the United States. On appeal, Salutiano-Hernandez argues that the
district court clearly erred in denying him a safety-valve reduction because he met
the five criteria set forth in U.S.S.G. § 5C1.2. While acknowledging that his
statements to investigators differed in certain respects from those of his co-
defendants, he argues that he fully and truthfully provided all information about the
offense. In support, he argues that his disclosure coincided with many of the facts
offered by his co-defendants. Salutiano-Hernandez also contends that he should
have been given the opportunity to cross-examine his co-defendants.
When considering a district court’s denial of safety-valve relief, we review
findings of fact for clear error and the application of the Guidelines to those facts
de novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004).
U.S.S.G. § 5C1.2 (the “safety-valve” provision), implements 18 U.S.C. § 3553(f)
and requires a district court to sentence a defendant in certain drug-possession
cases without regard to any statutory minimum sentence if the defendant meets the
five criteria enumerated in the guideline. See United States v. Brownlee, 204 F.3d
1302, 1304-05 (11th Cir. 2000). U.S.S.G. § 2D1.1(b)(7) provides for a two-level
decrease in offense level if the defendant meets the criteria set forth in U.S.S.G.
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§ 5C1.2. 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); United States v. Espinosa,
172 F.3d 795, 797 (11th Cir. 1999).
The final 5C1.2(a)(5) factor requires a defendant to truthfully and fully
disclose information within his knowledge relating to the crime for which he is
being sentenced. See United States v. Figueroa, 199 F.3d 1281, 1283 (11th Cir.
2000). “This final factor is a ‘tell-all provision: to meet its requirements, the
defendant has an affirmative responsibility to truthfully disclose to the government
all information and evidence that he has about the offense and all relevant
conduct.” United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004)
(emphasis in original; internal punctuation omitted). A district court cannot apply
the safety valve if it determines that the defendant withheld or misrepresented
information, even if the information would not have aided further investigation or
prosecution if properly disclosed. See Figueroa, 199 F.3d at 1283. A defendant’s
prior lies and omissions, however, “do not, as a matter of law, disqualify a
defendant from safety-valve relief so long as the defendant makes a complete and
truthful proffer not later than the commencement of the sentencing hearing.”
Brownlee, 204 F.3d at 1305. A district court may exercise its discretion to
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continue the sentencing hearing, and thus give the defendant an opportunity to
make a complete and truthful statement, or to correct a prior incomplete or
untruthful statement. United States v. Garcia, 405 F.3d 1260, 1275 (11th Cir.
2005).
Upon review of the record and the sentencing transcript, and upon
consideration of the briefs of the parties, we discern no reversible error. The
district court did not clearly err in determining that Salutiano-Hernandez had not
truthfully and fully disclosed information within his knowledge relating to the
crime. Salutiano-Hernandez failed to disclose important facts, including who hired
him, who was in charge of the venture, who was to pay him, and the location
where the venture began and was to end. The facts that he did disclose differed
from the mutually consistent accounts offered by his co-defendants. For example,
the co-defendants testified that Salutiano-Hernandez was the captain of the boat,
which Salutiano-Hernandez denied. The other defendants also testified that
Salutiano-Hernandez was present when the cocaine was loaded on the boat, which
he also denied.
Salutiano-Hernandez admits that his statement was inconsistent with his co-
defendants’ statements in certain respects. He nevertheless argues that some of the
information he offered coincided with the statements of his co-defendants. Partial
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consistency, however, does not show either that Salutiano-Hernandez disclosed
everything he knew, or that what he did disclose was truthful. To the contrary, the
fact that he disclosed less than his co-defendants did tends to show he was not
completely forthcoming. And the fact that some of the details he offered were, as
he acknowledges, different from his co-defendants’ mutually consistent statements
tends to show that what he in fact disclosed was not fully truthful. The district
court therefore did not clearly err in determining that Salutiano-Hernandez had not
truthfully and fully disclosed information within his knowledge relating to the
crime and that the safety-valve provisions, U.S.S.G. §§ 5C1.2 and 2D1.1(b)(7), did
not apply to his convictions.
Finally, Salutiano-Hernandez argues that he should have been given an
evidentiary hearing where he could have cross-examined his co-defendants. We
normally review a district court’s denial of an evidentiary hearing before denying
safety-valve relief for abuse of discretion. United States v. Gay, 251 F.3d 950, 951
(11th Cir. 2001). But where, as here, the defendant did not request an evidentiary
hearing in the district court, we review for plain error. United States v. Peters, 403
F.3d 1263, 1270 (11th Cir. 2005). To prevail, Salutiano-Hernandez must identify
an error that is plain, affects substantial rights, and seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
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Here, the district court did not plainly err because Salutiano-Hernandez has
failed to show that the denial of an evidentiary hearing affected his substantial
rights. At the sentencing hearing, the district court had before it evidence tending
to show that Salutiano-Hernandez had not fully and truthfully disclosed
information relating to the crime, and no evidence to the contrary. Salutiano-
Hernandez did not allege that his co-defendants were lying. Rather, after the
district court advised the defendant of the legal consequences of his apparent lack
of truthfulness, Salutiano-Hernandez merely expressed a desire to be sentenced
right away. The evidence before the district court therefore did not permit any
inference of entitlement to the safety-valve reduction. The district court
legitimately concluded that an evidentiary hearing was not necessary, and certainly
did not plainly err. Moreover, the district court offered to continue the sentencing
hearing to allow Salutiano-Hernandez to offer a statement that would allow him to
qualify for safety-valve relief. He refused the court’s offer. The district court was
therefore doubly entitled to conclude that Salutiano-Hernandez had no further
arguments to make, and that an evidentiary hearing would have been futile.
Accordingly, the district court is
AFFIRMED.
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