United States v. Pedro Sosa-Saucedo

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 15, 2006
No. 06-11618 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00173-CR-7-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO SOSA-SAUCEDO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 15, 2006)
Before BARKETT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Pedro Sosa-Saucedo appeals his 120-month sentence for conspiracy to
possess with intent to distribute 5 kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(A)(ii), 846; and possession with intent to distribute 5 kilograms of
cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii), and 18 U.S.C. § 2. On
appeal, Sosa-Saucedo argues that the district court clearly erred in denying him a
“safety-valve” reduction pursuant to U.S.S.G. § 2D1.1(b)(7) (2004).
“[We] review[] a district court’s factual determinations and subsequent
denial of ‘safety valve’ relief for clear error.” United States v. Poyato, 454 F.3d
1295, 1297 (11th Cir. 2006) (quoting United States v. Johnson, 375 F.3d 1300,
1301 (11th Cir. 2004)). The district court’s application of the Guidelines is
reviewed de novo. Id. The standards for reviewing the application of the
guidelines before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005), continue to apply after Booker as well. See United States v.
Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005). The defendant has the burden
of proving his eligibility for relief under U.S.S.G. § 5C1.2. United States v. Cruz,
106 F.3d 1553, 1557 (11th Cir. 1997).
The Sentencing Guidelines provide for a two-level reduction in the offense
level for certain drug-related crimes if the defendant meets five criteria as set forth
in U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). See U.S.S.G. § 2D1.1(b)(7). The
defendant must show: (1) he does not have more than one criminal history point;
2
(2) he did not use violence or possess a firearm or other dangerous weapon during
the offense; (3) death or serious bodily injury did not occur to any person as a
result of the offense; (4) he was not an “organizer, leader, manager, or supervisor
of others in the offense” and not engaged in a continuing criminal enterprise; and
(5) he truthfully provided the government with all information and evidence he has
concerning the offense. 18 U.S.C. § 3553(f); U.S.S.C. § 5C1.2(a). The record
supports, and the parties do not dispute, that Sosa-Saucedo meets the first four
criteria. The point of contention lies with the fifth factor under § 5C1.2(a).
The fifth factor of the safety-valve requires truthful and complete disclosure
of information known by the defendant. U.S.S.G. § 5C1.2(a)(5). “[T]he 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.’”
Johnson, 375 F.3d at 1302 (quoting United States v. Yate, 176 F.3d 1309, 1310
(11th Cir. 1999)). However, it is the responsibility of the district court to
determine the truthfulness of the information the defendant provided to the
government, and the court errs if it defers to the government on this issue. United
States v. Espinosa, 172 F.3d 795, 797 (11th Cir. 1999).
“[I]t is the offense for which the defendant is convicted that determines the
scope of information which the defendant must disclose.” Johnson, 375 F.3d at
3
1302. In Cruz, we held that the defendant, who was convicted of a drug-related
conspiracy, was obligated to disclose “all the information that he possesses about
his involvement in the offense, including information relating to the involvement
of others and to the chain of the narcotics distribution.” Cruz, 106 F.3d at 1557.
Upon review of the record and consideration of the briefs of the parties, we
find no reversible error because Sosa-Saucedo failed to meet his burden of proof
under U.S.S.G. § 5C1.2(a)(5). Sosa-Saucedo was convicted of conspiracy to
possess with intent to distribute cocaine and possession with intent to distribute
cocaine. Accordingly, he was required to disclose information about buyers,
suppliers, and anyone else he introduced into the conspiracy. However, the record
does not demonstrate that Sosa-Saucedo disclosed such information even though
he admitted to participating in other transactions. Specifically, he did not admit to
introducing his brother into the cocaine distribution chain until after the
government presented evidence of the intercepted phone calls. Later, in his
allocution, he contradicted his attorney’s representation and denied his brother’s
involvement in the intercepted phone call. Thus, Sosa-Saucedo has not shown that
the district court clearly erred in finding he failed to satisfy the fifth element of the
safety-valve provision. Accordingly, we affirm.
AFFIRMED.
4