United States v. John L. Anthony

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1205
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
John L. Anthony, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 26, 2004
Filed: September 2, 2004
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Before LOKEN, Chief Judge, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
John Anthony appeals the district court's1 refusal to apply "safety valve" relief
pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a) to his sentence for violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1) and 21 U.S.C. § 846. We affirm because the
district court did not clearly err.
On October 14, 2003, John Anthony pleaded guilty to conspiracy to distribute
and possess with intent to distribute 500 grams or more of methamphetamine, in
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
violation of 21 U.S.C. § 841(a)(1) and (b)(1) and 21 U.S.C. § 846. The district court
sentenced Anthony to the statutory minimum of ten years' imprisonment, followed by
five years of supervised release. Before sentencing, Anthony participated in a proffer
interview with Officer Stuart Nadgwick of the Fremont Police Department. Officer
Nadgwick asked Anthony about his participation in the distribution of
methamphetamine and his involvement with identified co-conspirators. The
Presentence Investigation Report (PSR) contained several co-conspirator accounts of
methamphetamine sales to or by Anthony and detailed his direct involvement in the
conspiracy. Anthony did not object to these relevant portions of the PSR. Anthony
moved for safety valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a). The
government objected, arguing that Anthony had not truthfully provided the
government with all information and evidence he had concerning the offense as
required by 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5). The district court
relied on a report of the proffer interview, the PSR, a recorded telephone
conversation, drug ledgers, testimony by Officers Nadgwick and Smoot of their
investigation in the case, and Anthony's testimony to render its sentence.
A court shall impose a sentence without regard to any statutory minimum
sentence if the court finds at sentencing that, inter alia, "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 ." 18 U.S.C.
3553(f)(5), U.S.S.G. § 5C1.2(a)(5). A district court may accept as true all factual
allegations contained in a PSR that are not specifically objected to by the parties.
United States v. Beatty, 9 F.3d 686, 690 (8th Cir. 1993). A criminal defendant has
the burden to prove he is entitled to the safety valve relief available under 18 U.S.C.
§ 3553(f). United States v. O'Dell, 204 F.3d 829, 838 (8th Cir. 2000). Our review
of the district court's factual findings in such cases is for clear error. Id. "The
sentencing court's assessment of the credibility of witnesses is nearly unreviewable."
United States v. Dierling, 131 F.3d 722, 736 (8th Cir. 1997).
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The district court did not clearly err in denying Anthony safety valve relief.
Numerous contradictions between evidence provided by the PSR, the recorded
conversation, drug ledgers, and Officers Nadgwick's and Smoot's testimony on the
one hand; and Anthony's proffer interview and testimony at sentencing on the other,
provided sufficient grounds for the district court's determination. The district court
was entitled to assess the credibility of the witnesses as part of that finding, and we
do not second-guess that determination today.
Accordingly, we affirm the judgment of the district court.
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