          United States Court of Appeals
                     For the First Circuit
                      ________________________


No. 06-2176

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                   JUAN C. RODRIGUEZ-FERREIRA,

                       Defendant-Appellant.
                      _____________________

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                      _____________________

                              Before

                      Lipez, Circuit Judge,
                  Selya, Senior Circuit Judge,
                   and Howard, Circuit Judge.



     Matthew M. Robinson and Robinson & Brandt, P.S.C. on brief,
for appellant.
     Nelson Perez-Sosa, Assistant United States Attorney, and
Rosa Emilia Rodriguez-Velez, United States Attorney, on brief for
appellee.



                          June 30, 2008
             Howard,      Circuit       Judge.       Pursuant      to     a    written      plea

agreement, Juan C. Rodriguez-Ferreira (Rodriguez) pleaded guilty

to a two count indictment for conspiring to distribute in excess

of    five   kilograms       of   cocaine,      in     violation         of    21   U.S.C.       §§

841(a)(1), 841(b)(1)(A), and 846, and to possession with intent

to    distribute      approximately        thirty       kilograms         of    cocaine,         in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A).                             The agreement

stipulated various sentencing base level reductions so long as

Rodriguez       met   all    the       safety       valve   requirements            under    the

sentencing guidelines.             See U.S.S.G. § 5C1.2(a).                    At the change

of plea hearing Rodriguez was informed, and he acknowledged, that

he could not be sentenced below the mandatory minimum sentence of

120    months    unless      he    satisfied         the    five    requirements            of    §

5C1.2(a).

             It is uncontested that Rodriguez satisfied four of the

five safety valve requirements.                 The government contends, and the

district court agreed, that Rodriguez did not fulfill the fifth

requirement under 5C1.2(a), and thus Rodriguez did not fulfill

his obligations under the plea agreement.                          The court imposed a

120    months’      sentence      on    July    15,    2003.        Rodriguez         appeals,

raising      "the     lone    question         of    whether       the    district       court

incorrectly determined that Rodriguez [] did not satisfy each of




                                            -2-
the factors under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, the

'safety valve.'"

I.   SAFETY VALVE

           U.S.S.G. § 5C1.2(a) provides in part:

[T]he court shall impose a sentence in accordance with the
applicable guidelines without regard to any statutory minimum
sentence, if the court finds that the defendant meets the
criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below:

     (1)...
     (5) 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, but 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 a determination by the court that the
     defendant has complied with this requirement.

Emphasis added.

           We   focus    on    the   requirement   that   Rodriguez    was

truthfully to provide all of the information and evidence he had

concerning the offense or offenses not later than the time of the

sentencing hearing.

II. STANDARD OF REVIEW

           We   review   the    sentencing   court's   factual   findings

supporting the adverse determination of safety valve eligibility

for clear error.    United States v. Marquez, 280 F.3d 19, 22 (lst

Cir. 2002).     Our review is thus deferential.        Id. at 26.     "[A]n

appellate court ought not to disturb either findings of fact or
                                     -3-
conclusions         drawn    there     from   unless    the       whole       of    the   record

compels    a    strong,      unyielding       belief    that       a    mistake       has   been

made."     United States v. Matos, 328 F.3d 34, 40 (1st Cir. 2003).

The   district       court’s      determination        of    an    issue       of    statutory

interpretation is reviewed de novo.                   Marquez, 280 F.3d at 22.

III. BURDEN OF PROOF

               Rodriguez bears the burden of showing that he made

appropriate and timely disclosures to the government.                               Id. at 25;

United States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000).

This burden obliges Rodriguez to prove that the information he

supplied       in    the    relevant     time       frame    was       both    truthful       and

complete.       Marquez, 280 F.3d at 25.              "[A] safety valve debriefing

is a situation that cries out for straight talk; equivocations,

half-truths, and veiled allusions will not do."                           Matos, 328 F.3d

at 39. "Nothing short of truthful and complete disclosure will

suffice [] and, therefore, [] truthful and complete disclosure is

a condition precedent to relief under the safety valve."                                      Id.

"Full    disclosure         is   the   price    that    Congress         has       attached    to

relief    under      the    [safety     valve]      statute."           United       States    v.

Montanez, 82 F.3d 520, 523 (lst Cir. 1996).

IV. HEARINGS

               The    government         debriefed          Rodriguez.         Finding        his

disclosures lacking, the government filed a notice with the court

                                              -4-
that Rodriguez had not complied with § 5C1.2(a).                   Rodriguez asked

the government to detail the specific areas in which he was not

truthful or complete.         The court held a hearing on Rodriguez’s

compliance on October 11, 2002. To assist it in deciding whether

or not Rodriguez was compliant, the court requested memoranda on

the arguments and case law.           Subsequently, the court entered an

order denying Rodriguez's request for a second debriefing.                      But,

in light of the deadline established by § 5C1.2(a), the court

also   allowed    Rodriguez    to   submit   a     writing    in    compliance   by

February 12, 2003.      A hearing would then be scheduled, at which

the government would be allowed to give voice to its position on

Rodriguez’s compliance with the safety valve requirement based on

his written statement.

            The   originally     scheduled       April   1,   2003,     sentencing

hearing was called but was converted into an evidentiary hearing

on Rodriguez’s safety valve compliance.                  The court questioned

Rodriguez directly.      The government, having acquired Rodriguez’s

written   statement    shortly      before   the    hearing,       maintained    its

position that Rodriguez had not provided a truthful and complete

statement   regarding    his    criminal     offense.         Distilled    to    its

essence, the government had evidence – pilot's logs - indicating

Rodriguez's involvement with approximately 19 flights importing

contraband.      Rodriguez had maintained his involvement was limited

                                      -5-
to four or five flights, "more or less."           The government also had

a   notarized     statement    from    co-defendant    Domingo    Garcia   that

indicated Rodriguez was involved in the importation of some 290

kilograms of cocaine.         The court asked the government to provide

copies of the pilot's logs that the government maintained proved

Rodriguez was not forthcoming.           On April 8, 2003, the government

submitted the logs, Garcia's statement, and other evidence.

            By order dated June 11, 2003, the district court found

Rodriguez had failed to satisfy the fifth requirement of the

safety valve provisions and was ineligible for sentencing below

the statutory minimum.         The sentencing hearing was called again

on July 2, 2003, but was continued until July 15 at Rodriguez's

request.     Just prior to the final hearing, Rodriguez filed a

statement in which he confirmed that the pilot log entries were

accurate.     His written statement also acknowledged that he had

engaged in several transactions with co-defendant Domingo Garcia

involving    approximately      290   kilograms   of   cocaine.     Rodriguez

insists that these admissions fulfilled his obligations under

section 5C1.2(a).       The district court was less than impressed,

noting     that    Rodriguez    "had     ample    opportunity     before    the

sentencing hearing to disclose information that he had on the

offense, in a timely manner...[a]nd this handwritten statement




                                       -6-
file[d]    20    minutes    ago   or     25    minutes     ago    is     not    a   timely

disclosure...."

V. DISCUSSION

               Rodriguez avers that he is entitled to another bite of

the apple, because under the express language of 5C1.2(a) he need

only provide a complete and truthful debriefing by the time of

the   sentencing      hearing.       The      argument    fails    on    two    grounds.

First,    it    ignores     the   fact     that    Rodriguez       did    not       provide

complete    disclosure       by   the    time     of   the   sentencing         hearing.

Second,    the     safety    valve      provisions        cannot       mean    that    the

district court must let a defendant nibble at the apple so as to

frustrate the imposition of a sentence as justice demands.                              We

briefly explain.

      Rodriguez was debriefed on April 26, 2002.                       On February 10,

2003,     Rodriguez     filed     additional       statements          clarifying      his

debriefing       statements.         The      first      sentencing       hearing       was

scheduled for and held on April 1, 2003.                     As far as Rodriguez

knew, he would be sentenced at that time.                    During the course of

that hearing, Rodriguez was directly examined by the court.                            The

following exchange took place concerning the declaration filed on

February 10, 2003:

           THE COURT: What is stated there, is that all you
      know concerning this offense or any other scheme
      related to the offense that you were charged with?

                                           -7-
          DEFENDANT RODRIGUEZ: This is everything I know
     about this crime, your honor. Virtually everything I
     know has been specified here.

     Based on the government's contrary evidence the district

court denied the safety valve.             In due course, sentencing was set

to proceed further on July 2, 2003, and then again continued to

July 15, 2003.       Shortly before the July 15 sentencing hearing was

convened, Rodriguez filed a statement acknowledging as true both

the dramatically different statements of a co-conspirator, as

well as the veracity of the pilot logs.                 Thus, twice after the

initial sentencing hearing commenced, and after stating under

oath that he had disclosed all he knew, Rodriguez provided new

information and detail.

             Even   taking     the   language     of   5C1.2(a)   on    the   terms

Rodriguez urges -– that the district court was required to accept

debriefing information up to the time the sentencing hearing

began   --   Rodriguez    nevertheless        plainly    had   not     provided   a

complete and truthful disclosure, and he thus defaulted on his

obligation under the plea agreement.              The district court clearly

indicated, and the record clearly reflects, that the sentencing

hearing began April 1, 2003.           During the course of that hearing –

after the sentencing hearing began – Rodriguez proffered new

information.        Again during the July 3, 2003 hearing Rodriguez

attempted    to     maneuver    into   a    new   position,    faced     with   the

                                        -8-
information provided by the government.               Finally, mere minutes

before the July 15, 2003 continued sentencing hearing began,

Rodriguez yet again proffered new information.                Having materially

amended his statement three times after the commencement of the

sentencing hearing, it is all too obvious that Rodriguez had not

been forthright.

              In Matos, we held that the deadline for making truthful

and complete disclosure is the moment that the sentencing hearing

starts.    Matos, 328 F.3d. 39. See also, United States v. Marin,

144 F.3d. 1085, 1091-92 (7th Cir. 1998); United States v. Long,

77 F.3d 1060, 1062 (8th Cir. 1996)(Per Curiam).                       Rodriguez's

three   day    sentencing    hearing     began   April   1,    2003,    but   even

charitably viewing the hearing as commencing at a later date,

Rodriguez’s statements throughout his interactions with the court

and with the government were, up until the very last moment,

equivocations and half-truths.           That the opportunity to provide

information pursuant to the safety valve provisions may become

foreclosed at the start of the sentencing hearing does not mean

that the defendant gets to withhold material information until

that moment. The obligation to provide truthful and complete

information      was   a   continuing    one     throughout     the    debriefing

process.




                                        -9-
     Where,    as    here,   a   defendant   puts   the   government   on   a

starvation    diet   -   providing   morsels   of   information   when   the

defendant is presented with the truth – he is engaged in artful

manipulation, not complete and truthful disclosure.            Rodriguez’s

conduct does not come close to timely straight talk.

     The sentence imposed by the district court is affirmed.




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