                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0074p.06

               UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                  X
                            Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                   -
                                                   -
                                                   -
                                                        No. 09-3073
          v.
                                                   ,
                                                    >
                                                   -
                         Defendant-Appellant. -
 LEONEL A. PENA, III,
                                                   -
                                                  N
                    Appeal from the United States District Court
                   for the Southern District of Ohio at Columbus.
              No. 08-00075-003—James L. Graham, District Judge.
                                Submitted: March 10, 2010
                           Decided and Filed: March 18, 2010
        Before: DAUGHTREY, GILMAN, and KETHLEDGE, Circuit Judges.

                                    _________________

                                         COUNSEL
ON BRIEF: Charles G. Kaps, Columbus, Ohio, for Appellant. Kevin W. Kelley, Robyn
Jones Hahnert, ASSISTANT UNITED STATES ATTORNEYS, Columbus, Ohio, for
Appellee.
                                    _________________

                                         OPINION
                                    _________________

        MARTHA CRAIG DAUGHTREY, Circuit Judge. In this appeal, the defendant
challenges the district court’s decision denying application of the “safety valve” sentencing
provision in U.S.S.G. § 5C1.2 that permits a two-level reduction for certain defendants who
cooperate fully with the government prior to sentencing. The defendant admittedly did not
give the prosecutors all the information he had about the drug-trafficking offense for which
he was convicted. He nevertheless argues on appeal, as he did below, that we should permit
safety-valve sentencing in his case principally because he feared retaliation if he made a full



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No. 09-3073         United States v. Pena                                              Page 2


disclosure and also because the government had already obtained from another source the
information they demanded from him. As the district court noted, however, the sentencing
guidelines do not recognize such exceptions, and the defendant’s proposals have been
rejected consistently by other circuits and in the unpublished opinions of this circuit. As did
the district court, we conclude that the remedy the defendant seeks is simply unavailable.
We therefore affirm the court’s sentencing order.

                   FACTUAL AND PROCEDURAL BACKGROUND

        According to the presentence report filed in this case, defendant Pena participated
in a scheme to transport several hundred kilograms of marijuana from Texas to Ohio
concealed in inflatable “fun castles” and other containers. Law enforcement agents
intercepted one such shipment in North Carolina and arranged for a controlled delivery to
the intended recipient in Wellston, Ohio, where it was later recovered, along with several
similar shipments. They had been sent by a Texas-based supplier to Mike Morelock, an
Ohio-based distributor. Pena and co-defendant Armando Gonzales worked for the Texas
supplier and traveled from Texas to Ohio to collect the proceeds and take the currency back
to Texas. Agents found Pena and Gonzales at a Red Roof Inn near the Ohio delivery site
with shipping numbers and the “COD” cost for two shipments of marijuana.

        Along with two of his co-conspirators, Pena was indicted for various offenses related
to the transport and distribution of marijuana. Under an agreement reached with government
prosecutors, Pena entered a guilty plea to conspiracy to distribute and to possess with intent
to distribute one hundred kilograms or more of marijuana. In exchange, the government
dismissed the remaining charges against him. The parties agreed that Pena had neither a
supervisory role nor a minor or minimal role in the conspiracy and, therefore, that there
should be no adjustment to his sentence based on his role. The parties also agreed that Pena
had accepted responsibility and, accordingly, should receive a three-level reduction in his
base offense level under U.S.S.G. § 3E1.1(b).

        The presentence report contained the probation officer’s calculation that Pena’s
proper range under the sentencing guidelines was 70 to 87 months, based on a total offense
level of 27 and a criminal history category of I. The report also noted that Pena’s offense,
a violation of 21 U.S.C. § 841(b)(B)(vii), carried a mandatory minimum term of five years.
No. 09-3073         United States v. Pena                                             Page 3


Although Pena met all the other criteria for the safety-valve two-level reduction, the
probation officer concluded that Pena was ineligible for a section 5C1.2 (a) reduction
because he had failed to provide the government with all of the information he had
concerning the offense, as required by section 5C1.2 (a)(5). Specifically, the government
wanted Pena to provide more detailed information about the Texas supplier than he had
given the government under his plea agreement.

        At sentencing, Pena’s attorney conceded that his client knew but refused to provide
the government with the requested information, explaining that Pena “[wa]s concerned about
retribution against his family, his mother and his wife” if he made a full disclosure. He also
contended that the Government had already discovered the identity of the defendant’s source
in Texas through Pena’s co-defendants. When asked whether the government did, in fact,
already have the information it sought from Pena about the Texas supplier, counsel for the
government conceded that “Mr. Morelock ha[d] cooperated” and had provided some
information about contacts in Texas, but maintained that the prosecution “[was] clearly
missing quite a bit of information because [Morelock] only knew the [Texas supplier] on an
infrequent basis.” Based on this proffer, the district court concluded that although the
prosecution might have some information about the Texas supplier, the government “still
[didn’t] have all of the information that [it] needed from Mr. Pena.”

        After considering the factors outlined in 18 U.S.C. § 3553(a), the district court
sentenced Pena to 70 months’ imprisonment and four years of supervised release, a sentence
at the low end of the advisory guideline range. The district court declined to apply the
safety-valve reduction, a decision that Pena now challenges on appeal.

                                       DISCUSSION

        A defendant who was not an “organizer, leader, manager, or supervisor of others in
the offense” of conviction is eligible for the safety-valve reduction if, among other
requirements, he “truthfully provide[s] 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.” U.S.S.G. §5C1.2(a)(1-5). The guidelines require
a defendant seeking the safety-valve reduction to provide all such information even if it is
not “relevant or useful” or “the Government is already aware of the information.”
No. 09-3073         United States v. Pena                                              Page 4


§ 5C1.2(a)(5). In addition, the burden of proving entitlement is on the defendant. See
United States v. Adu, 82 F.3d 119, 123-24 (6th Cir. 1996) (citing United States v. Rodriguez,
896 F.2d 1013, 1032 (6th Cir. 1990)). “Where the government challenges a defendant’s
claim of complete and timely disclosure and the defendant does not produce evidence that
demonstrates such a disclosure, a district court’s denial of a motion under § 3553(f) and
§ 5C1.2[(a)](5) is not clearly erroneous.” Id. at 125.

        In essence, the defendant now asks this court to carve out public-policy exceptions
to the safety valve provision’s requirement of full and truthful disclosure both when
disclosure is likely to trigger retribution against the defendant or third parties and when the
government has access from another source to the information that the defendant could
provide. We have no authority to do so, however, given that the development of sentencing
policy is controlled by Congress, not the courts. Moreover, the safety-valve criteria are
“stringent” because Congress intended the provision “to benefit only those defendants who
truly cooperate.” United States v. O’Dell, 247 F.3d 655, 675 (6th Cir. 2001).

        As a result, we have held in unpublished opinions that “fear of retaliation does not
relieve a defendant of the obligation to make full disclosure in order to obtain reduction
under the ‘safety valve’ provision.” United States v. Cedeno, 37 F. App’x 786, 787 (6th Cir.
2002); see also United States v. Gilliam, 127 F. App’x 820, 823 (6th Cir. 2005) (holding that
“fear of retaliation does not relieve a defendant of the obligation to make a full disclosure
in order to qualify for safety-valve reduction”). Moreover, our sister circuits are uniform in
their conclusion that a defendant who refuses to make a full and truthful disclosure for fear
of retaliation is not entitled to a downward departure under the safety-valve provision. See,
e.g., United States v. Tang, 214 F.3d 365, 371 (2d Cir. 2000) (concluding that the safety-
valve guideline “makes no exception for failure to furnish information because of feared
consequences”). A defendant is, of course, “entitled to remain silent” if he fears retaliation,
but in that case “he is no longer entitled to special treatment” in the form of a reduced
sentence. United States v. Roman-Zarate, 115 F.3d 778, 785 (10th Cir. 1997); see also
United States v. Stewart, 93 F.3d 189, 196 (5th Cir. 1996) (noting that § 5C1.2(a)(5) does
not “compel [a] defendant to risk his or his family’s lives” because the defendant “can refuse
the option and receive the statutory sentence under the regular sentencing scheme”); United
No. 09-3073         United States v. Pena                                              Page 5


States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996) (“[F]ull disclosure is the price that
Congress has attached to relief under the statute.”).

        Based on the foregoing authority and the plain language of the guidelines, we hold
that the defendant’s fear of retaliation, however credible, does not create an exception to the
safety-valve provision’s requirement of complete and truthful disclosure. Hence, the district
court did not err by refusing to the apply the two-level reduction on this basis.

        We likewise decline to recognize an exception to the disclosure requirement based
on the existence of another source for the information that the government seeks from a
defendant. The applicable guideline does not prevent a sentencing court from applying the
safety-valve reduction if the only information a defendant has is also known to the
government. See § 5C1.2(a)(5) (“[T]he fact that . . . the Government is already aware of the
information shall not preclude a determination by the court that the defendant has complied
with th[e] requirement [of full and truthful disclosure].”). On the other hand, it does not
permit the defendant to withhold information on the ground that the government has secured
it from another source.

        Even if we were to recognize such a public-policy exception to the disclosure
requirement, Pena could not invoke it. As the record shows, Pena apparently did possess
information about the Texas supplier beyond that revealed by Morelock or any of the other
cooperating witnesses, and the district court specifically found that not all of Pena’s
knowledge was redundant.

                                      CONCLUSION

        For the reasons set out above, we conclude that the decision to deny the defendant
a two-level reduction in his sentence under the safety-valve provision of the sentencing
guidelines was proper, and we therefore AFFIRM the district court’s judgment.
