                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             JAN 31, 2007
                              No. 06-12179                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 05-00508-CR-T-24EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JOSE SALUTIANO-HERNANDEZ,
a.k.a Jose Salutiano Hernandez,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (January 31, 2007)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

     Jose Salutiano-Hernandez appeals his 168-month sentence imposed
following his guilty plea for conspiracy to possess and possession with intent to

distribute five kilograms or more of cocaine while aboard a vessel subject to the

jurisdiction of the United States. On appeal, Salutiano-Hernandez argues that the

district court clearly erred in denying him a safety-valve reduction because he met

the five criteria set forth in U.S.S.G. § 5C1.2. While acknowledging that his

statements to investigators differed in certain respects from those of his co-

defendants, he argues that he fully and truthfully provided all information about the

offense. In support, he argues that his disclosure coincided with many of the facts

offered by his co-defendants. Salutiano-Hernandez also contends that he should

have been given the opportunity to cross-examine his co-defendants.

      When considering a district court’s denial of safety-valve relief, we review

findings of fact for clear error and the application of the Guidelines to those facts

de novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004).

U.S.S.G. § 5C1.2 (the “safety-valve” provision), implements 18 U.S.C. § 3553(f)

and requires a district court to sentence a defendant in certain drug-possession

cases without regard to any statutory minimum sentence if the defendant meets the

five criteria enumerated in the guideline. See United States v. Brownlee, 204 F.3d

1302, 1304-05 (11th Cir. 2000). U.S.S.G. § 2D1.1(b)(7) provides for a two-level

decrease in offense level if the defendant meets the criteria set forth in U.S.S.G.



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§ 5C1.2. The burden is on the defendant to show that he has satisfied all of the

safety-valve factors and that the information he has provided is truthful. United

States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997); United States v. Espinosa,

172 F.3d 795, 797 (11th Cir. 1999).

      The final 5C1.2(a)(5) factor requires a defendant to truthfully and fully

disclose information within his knowledge relating to the crime for which he is

being sentenced. See United States v. Figueroa, 199 F.3d 1281, 1283 (11th Cir.

2000). “This final factor is a ‘tell-all provision: to meet its requirements, the

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.” United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004)

(emphasis in original; internal punctuation omitted). A district court cannot apply

the safety valve if it determines that the defendant withheld or misrepresented

information, even if the information would not have aided further investigation or

prosecution if properly disclosed. See Figueroa, 199 F.3d at 1283. A defendant’s

prior lies and omissions, however, “do not, as a matter of law, disqualify a

defendant from safety-valve relief so long as the defendant makes a complete and

truthful proffer not later than the commencement of the sentencing hearing.”

Brownlee, 204 F.3d at 1305. A district court may exercise its discretion to



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continue the sentencing hearing, and thus give the defendant an opportunity to

make a complete and truthful statement, or to correct a prior incomplete or

untruthful statement. United States v. Garcia, 405 F.3d 1260, 1275 (11th Cir.

2005).

         Upon review of the record and the sentencing transcript, and upon

consideration of the briefs of the parties, we discern no reversible error. The

district court did not clearly err in determining that Salutiano-Hernandez had not

truthfully and fully disclosed information within his knowledge relating to the

crime. Salutiano-Hernandez failed to disclose important facts, including who hired

him, who was in charge of the venture, who was to pay him, and the location

where the venture began and was to end. The facts that he did disclose differed

from the mutually consistent accounts offered by his co-defendants. For example,

the co-defendants testified that Salutiano-Hernandez was the captain of the boat,

which Salutiano-Hernandez denied. The other defendants also testified that

Salutiano-Hernandez was present when the cocaine was loaded on the boat, which

he also denied.

         Salutiano-Hernandez admits that his statement was inconsistent with his co-

defendants’ statements in certain respects. He nevertheless argues that some of the

information he offered coincided with the statements of his co-defendants. Partial



                                           4
consistency, however, does not show either that Salutiano-Hernandez disclosed

everything he knew, or that what he did disclose was truthful. To the contrary, the

fact that he disclosed less than his co-defendants did tends to show he was not

completely forthcoming. And the fact that some of the details he offered were, as

he acknowledges, different from his co-defendants’ mutually consistent statements

tends to show that what he in fact disclosed was not fully truthful. The district

court therefore did not clearly err in determining that Salutiano-Hernandez had not

truthfully and fully disclosed information within his knowledge relating to the

crime and that the safety-valve provisions, U.S.S.G. §§ 5C1.2 and 2D1.1(b)(7), did

not apply to his convictions.

       Finally, Salutiano-Hernandez argues that he should have been given an

evidentiary hearing where he could have cross-examined his co-defendants. We

normally review a district court’s denial of an evidentiary hearing before denying

safety-valve relief for abuse of discretion. United States v. Gay, 251 F.3d 950, 951

(11th Cir. 2001). But where, as here, the defendant did not request an evidentiary

hearing in the district court, we review for plain error. United States v. Peters, 403

F.3d 1263, 1270 (11th Cir. 2005). To prevail, Salutiano-Hernandez must identify

an error that is plain, affects substantial rights, and seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id.



                                             5
      Here, the district court did not plainly err because Salutiano-Hernandez has

failed to show that the denial of an evidentiary hearing affected his substantial

rights. At the sentencing hearing, the district court had before it evidence tending

to show that Salutiano-Hernandez had not fully and truthfully disclosed

information relating to the crime, and no evidence to the contrary. Salutiano-

Hernandez did not allege that his co-defendants were lying. Rather, after the

district court advised the defendant of the legal consequences of his apparent lack

of truthfulness, Salutiano-Hernandez merely expressed a desire to be sentenced

right away. The evidence before the district court therefore did not permit any

inference of entitlement to the safety-valve reduction. The district court

legitimately concluded that an evidentiary hearing was not necessary, and certainly

did not plainly err. Moreover, the district court offered to continue the sentencing

hearing to allow Salutiano-Hernandez to offer a statement that would allow him to

qualify for safety-valve relief. He refused the court’s offer. The district court was

therefore doubly entitled to conclude that Salutiano-Hernandez had no further

arguments to make, and that an evidentiary hearing would have been futile.

Accordingly, the district court is

AFFIRMED.




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