United States v. Mejia-Pimental

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30604
Plaintiff-Appellee, D.C. No.
v.  CR-99-00147-001-
BRIJIDO MEJIA-PIMENTAL, RBL
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
October 18, 2006—Seattle, Washington
Filed February 26, 2007
Before: Dorothy W. Nelson, David R. Thompson, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
2157
UNITED STATES v. MEJIA-PIMENTAL 2159
COUNSEL
Peggy Sue Juergens, Seattle, Washington, for the defendant-
appellant.
2160 UNITED STATES v. MEJIA-PIMENTAL
John McKay, United States Attorney, and Douglas James
Hill, Assistant United States Attorney, Tacoma, Washington,
for the plaintiff-appellee.
OPINION
PAEZ, Circuit Judge:
This case provides the occasion to explore the parameters
of the statutory safety valve, which grants relief from certain
mandatory minimum sentences when five criteria are met. See
18 U.S.C. § 3553(f). We have previously decided that the fifth
factor, which requires a defendant to “truthfully provide[ ]”
all his knowledge about the crime to the Government before
sentencing, see § 3553(f)(5), is aimed at defendants “who
‘have made a good-faith effort to cooperate with the govern-
ment.’ ” United States v. Shrethsa, 86 F.3d 935, 940 (9th Cir.
1996) (quoting United States v. Arrington, 73 F.3d 144, 147
(7th Cir. 1996)). We have never, however, defined precisely
what “good faith” means in this context. We now hold that to
demonstrate “good faith,” a defendant need only show what
the statutory language directs: that by the time of sentencing,
he has “truthfully provided to the Government all information
and evidence [he] has concerning the offense or offenses.”
§ 3553(f)(5). In this case, the district court construed good
faith too broadly in determining that Mejia-Pimental was inel-
igible for relief. Because the court thus erred in its application
of the safety valve and then sentenced Mejia-Pimental with
reference to a mandatory minimum term, we vacate his sen-
tence and remand for resentencing.1
1
We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
UNITED STATES v. MEJIA-PIMENTAL 2161
I. OVERVIEW
This is the third time that Brijido Mejia-Pimental has
appealed his sentence.2 Not surprisingly, the procedural pos-
ture is somewhat complicated. In April 1999, a grand jury
indicted Mejia-Pimental and four co-defendants on multiple
counts for participating in a large drug trafficking conspiracy
involving cocaine, heroin, and methamphetamine. Conviction
on several of these charges triggers a 120-month mandatory
minimum sentence unless the defendant can demonstrate eli-
gibility for the safety valve.3 Mejia-Pimental pled guilty in
November 1999; in the plea agreement, the Government
acknowledged Mejia-Pimental’s eligibility for the safety
valve so long as he “provided a truthful statement to the gov-
ernment” about the crime — in accordance with § 3553(f)(5).
Mejia-Pimental withdrew his plea, however, when the district
court rejected the plea agreement because Mejia-Pimental had
“lied about his uncle’s involvement in the criminal enterprise
and the extent to which he even knew his uncle.”4
A jury convicted Mejia-Pimental of all counts. On February
2, 2001, the Honorable Jack E. Tanner sentenced Mejia-
Pimental to 210 months in prison. On appeal, we reversed and
remanded for resentencing because the district court had
failed to resolve “significant . . . objections” to the PSR. See
United States v. Mejia-Pimental, 60 F. App’x 687, 689 (9th
Cir. 2003). On remand, Judge Tanner imposed the same sen-
2
Also pending before us are two motions. We deny Mejia-Pimental’s
informal motion, contained in his Reply Brief, to strike references to the
Presentence Report (“PSR”) from the Government’s brief, and we grant
his motion to correct the docket to reflect accurately the date on which he
submitted sealed appellate exhibits.
3
21 U.S.C. § 841(b)(1)(A) establishes a ten-year minimum sentence for
conspiracy to distribute heroin and possession of heroin with intent to dis-
tribute in violation of 21 U.S.C. § 841(a).
4
Mejia-Pimental’s uncle, Cristino Tejeda-Mejia, whom both parties
acknowledge as the “true and ultimate leader” of the drug conspiracy, was
later indicted separately on lesser charges.
2162 UNITED STATES v. MEJIA-PIMENTAL
tence. We again reversed and remanded for resentencing in
light of United States v. Booker, 543 U.S. 220 (2005), and our
panel opinion in United States v. Ameline, 400 F.3d 646 (9th
Cir. 2005).5 See United States v. Mejia-Pimental, 122 F.
App’x 382 (9th Cir. 2005). Over the course of this procedural
roller coaster, Mejia-Pimental’s co-defendants all pled guilty
and received sentences of two years or less. His uncle, Cris-
tino Tejeda-Mejia, pled guilty, according to an affidavit from
Tejeda-Mejia’s attorney, to “one count of possession of a
listed chemical (pseudoephedrine)” and received thirty-
months imprisonment.
Before his third sentencing hearing, Mejia-Pimental con-
tacted the Government and offered to provide an in-person
safety valve proffer. The Government refused, primarily
because Mejia-Pimental had previously lied and declined to
cooperate, and because his uncle had already pled guilty, ren-
dering the information useless. In response, Mejia-Pimental
wrote a letter to the Government detailing his involvement in
the charged offenses, as well as his knowledge of the involve-
ment of others, including his uncle. On December 6, 2005,
a different district court judge, the Honorable Ronald B.
Leighton, held a full resentencing hearing and found that
Mejia-Pimental had not met the five criteria for safety valve
eligibility. Specifically, the court found that Mejia-Pimental
had failed to satisfy the safety valve’s fifth requirement —
truthfully providing the Government with complete informa-
tion. See 18 U.S.C. § 3553(f)(5). Although the Government
did not contend, and the district court did not find, that Mejia-
Pimental’s proffer letter was false or incomplete, the court
reasoned that
the government sought defendant’s help in the case
against his uncle, and defendant declined. Now, after
the uncle has been convicted on a lesser charge,
5
This decision was subsequently superceded by an en banc opinion. See
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
UNITED STATES v. MEJIA-PIMENTAL 2163
defendant, at his third sentencing, wants to tell all he
knows and to obtain the benefit of the safety valve.
This court does not believe that this effort repre-
sents a good faith cooperation with the government
and the court does not accept the proffer.
The district court “add[ed] that even if the defendant was
safety valve eligible, the court would not, under the circum-
stances of this case, be inclined to go below that statutory
mandatory minimum.” The court sentenced Mejia-Pimental to
156-months imprisonment — 36 above the mandatory mini-
mum. Mejia-Pimental timely appealed, arguing that he had
satisfied the fifth safety valve factor, that the district court’s
interpretation of the safety valve statute was incorrect, and
that the court therefore erred in considering the mandatory
minimum when calculating his sentence.
II. STANDARD OF REVIEW
We review “ ‘the district court’s interpretation of the Sen-
tencing Guidelines de novo.’ ” United States v. Cantrell, 433
F.3d 1269, 1279 (9th Cir. 2006) (quoting United States v.
Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005)). Although we
“review for clear error the district court’s factual determina-
tion that a particular defendant is eligible for relief” under the
safety valve, United States v. Real-Hernandez, 90 F.3d 356,
360 (9th Cir. 1996) (emphasis added), we review de novo the
district court’s statutory interpretation of § 3553(f)(5), see
Cantrell, 433 F.3d at 1279. See also United States v. Ferry-
man, 444 F.3d 1183, 1185-86 (9th Cir. 2006) (reviewing
determination of safety valve eligibility for clear error but
independently interpreting “[t]he phrase ‘in connection
with’ ” as a question of law); Shrethsa, 86 F.3d at 938-40
(noting that whether defendant had been completely truthful
for purposes of § 3553(f)(5) was a factual matter, but “deem-
[ing legally] irrelevant” defendant’s “denial of guilty knowl-
edge at trial”).
2164 UNITED STATES v. MEJIA-PIMENTAL
III. DISCUSSION
[1] The safety valve statute provides that
the court shall impose a sentence pursuant to guide-
lines promulgated by the United States Sentencing
Commission under section 994 of title 28 without
regard to any statutory minimum sentence, if the
court finds at sentencing, after the Government has
been afforded the opportunity to make a recommen-
dation, that —
(1) the defendant does not have more than 1 crimi-
nal 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 dan-
gerous 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; and
(5) not later than the time of the sentencing hearing
the defendant has truthfully provided to the Govern-
ment 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, but the fact that the defendant has no rele-
vant or useful other information to provide or that
UNITED STATES v. MEJIA-PIMENTAL 2165
the Government is already aware of the information
shall not preclude a determination by the court that
the defendant has complied with this requirement.
18 U.S.C. § 3553(f); see also U.S. SENTENCING GUIDELINES
MANUAL (“U.S.S.G.”) § 5C1.2.6 The defendant bears the bur-
den of proving safety valve eligibility by a preponderance of
the evidence. See United States v. Franco-Lopez, 312 F.3d
984, 994 (9th Cir. 2002); United States v. Nelson, 222 F.3d
545, 550 (9th Cir. 2000). In this case, the district court denied
relief solely on the basis of its finding that Mejia-Pimental
failed to satisfy the fifth safety valve factor.7
1. “Good Faith” Under 18 U.S.C. § 3553(f)(5)
The Government has never suggested that Mejia-Pimental’s
final proffer was false or incomplete.8 Instead, the Govern-
6
We recently confirmed that the statutory safety valve “survives the
Supreme Court’s holding [that the Sentencing Guidelines are advisory] in
Booker,” 543 U.S. 220 (2005), and that we must “continue [to ensure], in
accordance with congressional intent, [that district courts] apply its relief
from mandatory minimums in appropriate cases.” United States v.
Cardenas-Juarez, 469 F.3d 1331, 1335 (9th Cir. 2006).
7
In its brief, the Government asserts that the district court erred in find-
ing that Mejia-Pimental satisfied the fourth safety valve requirement —
not being a leader or organizer. However, as the Government conceded at
oral argument, it waived this claim by not objecting before the district
court, so we do not address it here. See United States v. Vieke, 348 F.3d
811, 814 (9th Cir. 2003).
8
Although Mejia-Pimental did not provide the proffer until just prior to
his third sentencing hearing, the district court correctly considered it,
because
as a general matter, if a district court errs in sentencing, we will
remand for resentencing on an open record — that is, without
limitation on the evidence that the district court may consider. . . .
[T]he district court generally should be free to consider any mat-
ters relevant to sentencing, even those that may not have been
raised at the first sentencing hearing, as if it were sentencing de
novo.
2166 UNITED STATES v. MEJIA-PIMENTAL
ment’s complaint is that the “statement provided information
already known to the government about his co-defendants . . .
[and] his uncle.” Similarly, the district court “t[ook] a
broad[ ]” interpretation of the statute, finding that in light of
Mejia-Pimental’s earlier disobliging behavior, this most
recent effort, after all his co-conspirators had already pled
guilty, did not “represent[ ] good faith cooperation.” In short,
the district court found, and the Government now argues, that
because Mejia-Pimental lied in his initial proffer, and then
delayed disclosing additional information until after his uncle
and co-defendants were sentenced, he cannot demonstrate the
“good faith” that § 3553(f)(5) demands.9
In interpreting subsection five, we have already decided
that as long as the defendant provides truthful, complete infor-
mation before sentencing, previous lies and omissions will not
render him ineligible for the benefit of the safety valve. See
Shrethsa, 86 F.3d at 940. We have also, however, held that
Congress intended the safety valve to benefit offenders who
“ ‘have made a good-faith effort to cooperate with the govern-
ment.’ ” Id. (quoting Arrington, 73 F.3d at 147). In Shrethsa,
the defendant had initially confessed all his knowledge and
involvement, but then recanted that confession at trial. 86
F.3d at 940. We held that the recantation did not disqualify
him from obtaining safety valve relief, but specifically did
“not decide” whether a defendant who “provided information
for the first time at sentencing merely in order to take advan-
tage of the safety valve provision,” or whose tardiness “de-
United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc)
(citations omitted); see also United States v. Madrigal, 327 F.3d 738, 744-
46 (8th Cir. 2003) (holding that defendant who gave proffer after a contin-
uation of the sentencing hearing remained safety valve eligible).
9
Mejia-Pimental argues that the district court’s factual determination
that he lied to the Government is clearly erroneous. Because he raised this
issue for the first time in his Reply Brief, we consider it waived. See
United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per curiam).
UNITED STATES v. MEJIA-PIMENTAL 2167
prive[d] the Government of information” would likewise
qualify. Id. at 940 n.5. Mejia-Pimental’s situation presents this
question, and we answer it in the affirmative.
[2] The breadth of the “good faith” requirement in the con-
text of the safety valve is limited by the boundaries of the stat-
utory language; that is, a defendant satisfies his “good faith”
obligation by providing the Government with truthful, com-
plete information by the time of the sentencing hearing. Any-
thing else would unjustifiably impose on a defendant an
additional burden above and beyond the plain meaning of the
text of § 3553(f). In reaching this conclusion, we are per-
suaded by the Second Circuit’s decision in United States v.
Schreiber, 191 F.3d 103 (2d Cir. 1999). There, reviewing a
factual scenario similar to Mejia-Pimental’s, the court held
that “lies and obstruction” before sentencing do not preclude
safety valve eligibility. Id. at 106, 108-09.
Schreiber involved a defendant who had lied during “at
least two proffer sessions[,] . . . in part . . . to protect his
brothers [ ] from prosecution.” Id. at 104. Later, the defendant
offered a new proffer, but the Government refused to meet
with him. Id. at 105-06. “Shortly prior to sentenc[ing],”
approximately seven years after the initial arrest, the defen-
dant “forwarded two documents which he claims constitute
truthful disclosure of all the information and evidence he had
concerning the conspiracy, thus bringing him into compliance
with the safety valve statute.” Id. at 105. The court held that
[a]ssuming that appellant’s final proffers were com-
plete and truthful, we find that appellant complied
with subsection five by coming forward “not later
than the time of the sentencing hearing.” 18 U.S.C.
§ 3553(f)(5). The plain words of the statute provide
only one deadline for compliance, and appellant met
that deadline. Nothing in the statute suggests that a
defendant is automatically disqualified if he or she
previously lied or withheld information. Indeed, the
2168 UNITED STATES v. MEJIA-PIMENTAL
text provides no basis for distinguishing among
defendants who make full disclosure immediately
upon contact with the government, defendants who
disclose piecemeal as the proceedings unfold, and
defendants who wait for the statutory deadline by
disclosing “not later than” sentencing. Similarly, the
text provides no basis for distinguishing between
defendants who provide the authorities only with
truthful information and those who provide false
information before finally telling the truth.
Id. at 106.10
[3] We find this reasoning convincing. Under our reading
of the statute, the good faith inquiry focuses on the defen-
dant’s cooperation in fully disclosing his knowledge of the
charged offense conduct, not on identifying a defendant’s pre-
sentencing delays in providing this information.11 A defendant
10
See also United States v. Brownlee, 204 F.3d 1302, 1304 (11th Cir.
2000) (“Nothing in the statute suggests that a defendant who previously
lied or withheld information from the government is automatically dis-
qualified from safety-valve relief.”); United States v. Tournier, 171 F.3d
645, 646-48 (8th Cir. 1999) (rejecting an interpretation of § 3553(f)(5) that
would “prohibit sentencing courts from applying the safety valve to defen-
dants who wait until the last minute to cooperate fully [or] . . . to those
whose tardy or grudging cooperation burdens the government with a need
for additional investigation”).
11
A review of relevant cases from our sister circuits confirms that good-
faith cooperation refers to cooperation in the disclosure itself. See, e.g.,
United States v. Warren, 338 F.3d 258, 263-67 (3d Cir. 2003) (noting the
“good-faith effort” requirement and affirming a finding of safety valve
ineligibility when defendant failed to cooperate fully); United States v.
Matos, 328 F.3d 34, 41 (1st Cir. 2003) (same, where it was undisputed that
the ultimate proffer included “contradictions and omissions”); United
States v. Reynoso, 239 F.3d 143, 149-50 (2d Cir. 2000) (same, where
defendant provided information that was in fact “objectively false”);
United States v. Gonzales-Montoya, 161 F.3d 643, 652 (10th Cir. 1998)
(same, where defendant refused to “confess[ ] guilt”); United States v.
Gaviria, 116 F.3d 1498, 1522 & n.35 (D.C. Cir. 1997) (same, where
UNITED STATES v. MEJIA-PIMENTAL 2169
might, for example, agree to a proffer but refuse to answer
questions or answer them evasively, even though the Govern-
ment believes (or knows) that the defendant’s involvement in
the criminal conduct was more extensive than the proffer sug-
gests. Such behavior would not constitute good faith because
it would not provide the Government with a truthful, complete
disclosure. See United States v. Washman, 128 F.3d 1305,
1307 (9th Cir. 1997) (noting that “[t]he intent of Congress
would be thwarted if defendants could obtain the benefit of
the safety valve yet not disclose their true role”). Conversely,
as long as a defendant’s ultimate proffer is truthful and com-
plete, he has satisfied the fifth safety valve criterion, regard-
less of his timing or motivations.
[4] United States v. Arrington, 73 F.3d 144 (7th Cir. 1996),
the case from which we borrowed the “good faith” language
in Shrethsa, 86 F.3d at 940, further supports the view that
“good faith” refers only to full disclosure. There, the Seventh
Circuit emphasized the defendant’s failure to provide an ade-
quate proffer:
Baker has not fulfilled the requirements of 3553(f).
Although he stipulated to the basic details of his
defendant had perjured himself at trial and pre-sentencing but did not cor-
rect those lies with any additional information); United States v. Gambino,
106 F.3d 1105, 1110-12 (2d Cir. 1997) (same, where defendant “failed to
provide [certain] information regarding the offense of conviction”).
In Shrethsa, we “observ[ed]” that the Fourth Circuit had interpreted
“good faith” more broadly in United States v. Fletcher, 74 F.3d 49 (4th
Cir. 1996), a case in which it affirmed a “district court’s denial of safety
valve reduction where a defendant perjured himself at trial but ‘came
clean’ at sentencing.” Shrethsa, 86 F.3d at 940 n.5. For the reasons articu-
lated in this opinion, we decline to follow Fletcher. Moreover, in Shrethsa
we noted that United States v. Long, 77 F.3d 1060, 1062 (8th Cir. 1996),
also construed “good faith” in a broader fashion. The Eighth Circuit has
since distinguished that case on its facts, emphasizing that as long as the
defendant has come clean before sentencing, previous lies will not dis-
qualify him. See Tournier, 171 F.3d at 648.
2170 UNITED STATES v. MEJIA-PIMENTAL
offense conduct, he made no further efforts to coop-
erate. He failed to respond to a proffer letter sent by
the government outlining the terms that would apply
(e.g. limited immunity) if he provided additional
information. Furthermore, he did not initiate any
contact with government officials offering to provide
details of his involvement in drug dealing. Specifi-
cally, the government notes that Baker could have at
least provided the name of the “source” who sold
him the crack cocaine. Before granting relief under
3553(f), the court may reasonably require a defen-
dant to reveal information regarding his chain of dis-
tribution. . . . Baker argues that he should not be
required to reveal information that the government
did not specifically ask him to provide. . . . Although
Baker is not required to provide information that the
government expressly states that it does not want, he
must at least offer what he has.
Arrington, 73 F.3d at 148. The district court in this case used
Arrington to adopt “a broader principle” about the “good
faith” requirement, but it stretched the Seventh Circuit’s rea-
soning beyond what the opinion in fact supports. Where the
defendant in Arrington was uncooperative, even failing to
respond to a written proffer invitation sent by the Govern-
ment, 73 F.3d at 148, Mejia-Pimental volunteered the details
of his knowledge and participation. Assuming his proffer was
truthful and complete, it is sufficient.12 Cf. United States v.
Otis, 127 F.3d 829, 836 (9th Cir. 1997) (per curiam) (affirm-
ing the district court’s determination that the defendant had
not satisfied § 3553(f)(5) when he offered a proffer in
exchange for a misdemeanor plea, the Government refused,
12
That the proffer was written and not oral is of no consequence,
because the safety valve “allows any provision of information in any con-
text to suffice, so long as the defendant is truthful and complete.” Real-
Hernandez, 90 F.3d at 361 (holding that a debriefing session from an ear-
lier incident constituted an adequate proffer).
UNITED STATES v. MEJIA-PIMENTAL 2171
and the defendant made no further efforts to disclose his
knowledge).
As posited by the Government and the district court, good-
faith cooperation in the context of the safety valve forbids
deliberate delays in the timing of the proffer or attempts to
impede law enforcement investigation. The advisory Sentenc-
ing Guidelines, however, already address such conduct
through other provisions, such as the enhancement for
obstruction of justice, see U.S.S.G. § 3C1.1; the adjustment
for acceptance of responsibility, see U.S.S.G. § 3E1.1; and the
departure for substantial assistance, see U.S.S.G. § 5K1.1. We
see no evidence that through the safety valve Congress or the
Sentencing Commission intended to duplicate them. See
Shrethsa, 86 F.3d at 940 (noting that the safety valve statute
differs from a § 5K1.1 substantial assistance departure, which
“provid[es] the government with a means to reward a defen-
dant for supplying useful information”); Schreiber, 191 F.3d
at 108 (reasoning that even if “the government’s interest in
disclosure could justify penalizing defendants who lie or with-
hold information during proffer sessions, a similar scheme
already exists independent of the safety valve. . . . The text of
§ 3553(f) is devoid of any suggestions that the safety valve is
meant to supplement § 3C1.1.”) (citing U.S.S.G. § 3C1.1
(obstruction of justice)). Further, to the extent that this con-
duct is not fully captured by the advisory Guidelines, the fac-
tors listed in 18 U.S.C. § 3553(a) allow district courts to
account for reluctant cooperation by tailoring individual sen-
tences accordingly.13 See United States v. Booker, 543 U.S.
220 (2005).
13
See, e.g., 18 U.S.C. § 3553(a)(1) (“the nature and circumstances of the
offense and the history and characteristics of the defendant”);
§ 3553(a)(2)(A) (“the need for the sentence imposed . . . to reflect the seri-
ousness of the offense, to promote respect for the law, and to provide just
punishment for the offense”); § 3553(a)(6) (“the need to avoid unwar-
ranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct”).
2172 UNITED STATES v. MEJIA-PIMENTAL
[5] More importantly, the safety valve statute’s text, which
explains that “the fact that the defendant has no relevant or
useful other information to provide or that the Government is
already aware of the information shall not preclude” eligibil-
ity, 18 U.S.C. § 3553(f)(5), prohibits reading the provision to
allow any consideration of the proffer’s effect on law enforce-
ment investigations. Policy concerns about the need for defen-
dants to cooperate in the most helpful and efficient manner
with the Government do not present a compelling justification
for stretching the plain meaning of the statute. In Schreiber,
the court rejected the Government’s contention that “the
defendant’s good faith cooperation is to be evaluated, as a
whole, from the start of the criminal proceeding” because “[a]
defendant who could gain the benefit of the safety valve in
such a case would have a reduced incentive to tell the truth.”
Schreiber, 191 F.3d at 107. We agree with the Second Circuit
that these “concerns” are “largely theoretical” because a
defendant who lies “risks irrevocably undermining his or her
credibility” such that the district court will find, as a factual
matter, that his disclosure was incomplete, or that the “lies
will be exposed at the sentencing hearing itself, thus disquali-
fying the defendant from relief.” Id. Therefore, although
Mejia-Pimental’s tardiness thus may have sentencing conse-
quences, as the Eighth Circuit put it, early and consistent
cooperation is “not a precondition for safety valve relief.”
Tournier, 171 F.3d at 647.
[6] In lying initially, Mejia-Pimental took a risk that the
district court would not believe that his ultimate proffer was
truthful and complete. The district court had ample channels
through which to address Mejia-Pimental’s lies or the timing
of his proffer — not least its broad sentencing discretion
under § 3553(a). The duty of “good-faith efforts to cooperate”
that we have placed on defendants seeking to satisfy
§ 3553(f)(5), however, was not one of them. This reasoning
supports our longstanding view that unlike the adjustment for
acceptance of responsibility, see U.S.S.G. § 3E1.1, “[t]he
safety valve is not concerned with sparing the government the
UNITED STATES v. MEJIA-PIMENTAL 2173
trouble of preparing for and proceeding with trial.” Shrethsa,
86 F.3d at 940. Section 3553(f)(5) does not impose “some
overrarching duty of good faith cooperation,” see United
States v. Jeffers, 329 F.3d 94, 99 (2d Cir. 2003) (citation omit-
ted), but instead is a simple duty of “good-faith effort[s]” to
“provide the government with complete information by the
time of the sentencing hearing,” Shrethsa, 86 F.3d at 940. The
district court therefore erred, as a matter of law, in finding
Mejia-Pimental ineligible for safety valve relief on the basis
of the lies and delays that preceded his final proffer.
2. Reversible Error
[7] “Where we discover an error not of constitutional mag-
nitude, we must reverse unless there is a fair assurance of
harmlessness or, stated otherwise, unless it is more probable
than not that the error did not materially affect the verdict.”
United States v. Gonzales-Flores, 418 F.3d 1093, 1099 (9th
Cir. 2005) (citation, alterations, and internal quotation marks
omitted). When, as here, the defendant has properly preserved
the sentencing error, the burden of demonstrating harmless-
ness falls on the Government. Id. Errors in the determination
of safety valve eligibility require resentencing even where the
district court has indicated that it would not have sentenced
below the mandatory minimum. In United States v. Real-
Hernandez, the district court interpreted the safety valve stat-
ute incorrectly but had also stated that “it would not ‘exercise
its prerogative to go below the mandatory minimum’ ” in any
case. 90 F.3d at 361 (alterations omitted). We reversed none-
theless, emphasizing that “if on remand [the defendant] car-
ries his burden of showing that he qualifies for relief under
the safety valve, the district court has no discretion to with-
hold application” of it. Id. (citation omitted). Despite the dis-
trict court’s suggestion it would have sentenced above the
mandatory minimum under any circumstances, we held that
the safety valve statute
states that “the court shall impose a sentence pursu-
ant to [the Guidelines] without regard to any statu-
2174 UNITED STATES v. MEJIA-PIMENTAL
tory mandatory minimum sentence” if the court finds
that a defendant meets all five criteria. This, of
course, does not require the court to sentence a
defendant to a term less than the mandatory mini-
mum, but it does require the court to sentence the
defendant “without regard to any statutory mini-
mum.”
Id. at 361-62 (citations omitted).
[8] In other words, the fact that a district court used the
mandatory minimum as a reference point requires resentenc-
ing if the defendant was in fact safety valve eligible. Such a
result makes sense. Mandatory minimums impose stringent
starting points on district courts’ sentencing authority. The
type of discretion afforded a court that is restrained by a statu-
tory minimum is wholly unlike that afforded one that is not.
It is therefore impossible for appellate courts to determine
how a district court sentencing under a mandatory minimum
might have exercised its sentencing discretion had it not been
so constrained. Thus, the court’s consideration of the manda-
tory minimum term in fashioning Mejia-Pimental’s sentence
constitutes reversible error. The Government offers no evi-
dence other than the district court’s comment that it was not
“inclined to go below that statutory mandatory minimum”
even if Mejia-Pimental were “safety valve qualified” to dem-
onstrate that the error was harmless. In light of Real-
Hernandez, the Government cannot meet its burden on this
record.
Although the Government has never asserted that Mejia-
Pimental’s final proffer was false or incomplete, the district
court did not reach this issue. Instead, the court “did not
accept the proffer” because it found that Mejia-Pimental had
failed to satisfy a “broader” duty of good-faith cooperation.
Therefore, on remand, the district court must consider
whether that final written proffer was in fact truthful and com-
plete. If so, while the court is not bound to a term of less than
UNITED STATES v. MEJIA-PIMENTAL 2175
ten years, it must nevertheless sentence Brijido Mejia-
Pimental “without regard to” the 120-month mandatory mini-
mum.14
VACATED AND REMANDED FOR RESENTENC-
ING.
14
In light of our disposition, we need not address Mejia-Pimental’s
claim that his sentence of 156 months was unreasonable.