                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
            __________

            No. 03-2308
            __________

United States of America,            *
                                     *
            Plaintiff – Appellee,    *
                                     *
      v.                             *
                                     *
Martha Alvarado-Rivera,              *
also known as Rosa Ontiveros Aranda, *
                                     *
            Defendant – Appellant.   *
            __________
                                                Appeals from the United States
            No. 03-2374                         District Court for the
            __________                          District of Minnesota.

United States of America,                 *
                                          *
            Plaintiff – Appellee,         *
                                          *
      v.                                  *
                                          *
Gilberto Moya-Vega,                       *
also known as Jorge Salinas,              *
                                          *
            Defendant – Appellant.        *

                                    ___________

                               Submitted: June 15, 2004
                                   Filed: October 26, 2004
                                    ___________
Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.
                          ____________

BRIGHT, Circuit Judge.

       Martha Alvarado-Rivera and Gilberto Moya-Vega each appeal the district
court’s denial, at sentencing, of the “safety valve” provision of 18 U.S.C. § 3553(f),
which would, if applicable, mandate a sentence under the federal sentencing
guidelines, without respect to any mandatory minimum sentence. Appellants each
pleaded guilty to conspiracy to distribute and possess with intent to distribute 500
grams or more of a substance containing methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846. Appellants were each subject to a mandatory minimum
sentence of a term of incarceration of ten years, unless the safety valve provision
applied to them. At separate sentencing hearings, the district court denied application
of the safety valve to each appellant because it found that they did not, as required by
the safety valve provision, provide the government a full and truthful account of their
knowledge concerning the offense.1

      1
        It is undisputed that each appellant satisfied the other requirements of the
safety valve. The safety valve provision of 18 U.S.C. § 3553(f) mandates a sentence
under the federal sentencing guidelines, without regard to any mandatory minimum,

      if the court finds at sentencing, after the Government has been afforded
      the opportunity to make a recommendation, that—
          (1) the defendant does not have more than 1 criminal 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 dangerous 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

                                          -2-
     The court sentenced Alvarado-Rivera to 120 months and Moya-Vega to 135
months.

       Because each appellant carried their burden of affirmatively demonstrating the
completeness and truthfulness of their proffers, and the government made no showing
to negate the completeness and truthfulness of the proffers, beyond the improbability
of the accounts given, we hold that the district court clearly erred by not finding that
each appellant had made the requisite proffer. Accordingly, we vacate the sentence
as to each appellant and remand for resentencing pursuant to the federal sentencing
guidelines without regard to any statutory minimum sentence.

                                           I.

       Alvarado-Rivera and Moya-Vega came to the attention of the authorities
because of a controlled drug buy on August 13, 2002. The Ramsey County Sheriff’s
Office had arranged the buy through an informant. Based on his prior dealings with
appellants, the informant had advised officers that Moya-Vega would be driven to the
scene by his wife, Alvarado-Rivera, in a champagne-colored vehicle and that he
would have three ounces of cocaine hidden in his crotch. After officers observed the
car arrive as the informant had predicted, police arrested appellants and found the
cocaine as described.


          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 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.

                                          -3-
      Appellants, who are illegal aliens,2 spoke little English, so police officers held
them in the apartment’s parking lot until a Spanish-speaking agent from the Drug
Enforcement Task Force arrived to question them. The agent discerned from talking
to both appellants that they were married and lived in a trailer home in Blaine,
Minnesota. Alvarado-Rivera took officers to the trailer home, opened it with a key
on her key ring, and consented to a search of the trailer.

        Upon entry to the trailer, the officers observed that the trailer home was nearly
empty, containing little more than a baby’s washtub inside the bathroom. The
officers doubted Alvarado-Rivera’s prior statement that she and her husband lived in
the trailer home. Officers questioned her about their suspicions and she insisted that
she and Moya-Vega lived there together. After an initial search of the trailer, the
officers did not discover any narcotics. The officers brought a narcotics dog to the
trailer to conduct a more thorough search. The dog alerted officers to approximately
twenty-seven pounds of methamphetamine hidden in a large paper bag behind a
cupboard in the kitchen. Alvarado-Rivera denied any knowledge of the drugs found
in the trailer.

      The following day, while taking inventory of documents seized from Alvarado-
Rivera, officers found a receipt from a management company for the rental of an
apartment. The officers determined that Moya-Vega and Alvarado-Rivera rented the
apartment under the aliases Jorge Salinas and Rosa Ontiveros-Aranda, and that
appellants lived in that apartment. The officers obtained a warrant to search the
apartment and found approximately one pound of methamphetamine hidden in the
dishwasher, which bore the same distinctive appearance as that found in the trailer
home, and other small amounts of cocaine and marijuana hidden throughout the


      2
       The Immigration and Naturalization Service has lodged detainers as to each
appellant with the United States Marshals Service and has advised that each appellant
will be deported following their terms of incarceration.

                                          -4-
apartment. The officers found $3,875 in cash hidden in the bedroom closet and a
digital scale which could be used to measure cocaine. The officers found receipts for
two wire transfers of money to individuals in Mexico–one transfer in the amount of
$5,000 and one for $1,000. The officers also found notes which they suspected
pertained to drug sales and which they believed to indicate wire transfers totaling
approximately $99,000 to various individuals in Mexico, sent over a two-month
period in the summer of 2002.

       Gilberto Moya-Alvarado, one of appellants’ sons, lived in an adjoining
apartment. Officers spoke to him, and he consented to a search of a storage locker
associated with his apartment. Officers found in the locker 281.5 grams of
methamphetamine, 43.5 grams of cocaine, and 85.2 grams of marijuana. The son told
the officers that he had removed the drugs from his parents’ apartment at the direction
of his brother, Gustavo Moya-Alvarado, after their parents failed to return home on
the day of their arrest.3 In all, appellants were responsible for 127.1 grams of cocaine,
12,147.7 grams of a substance containing methamphetamine, and 85.2 grams of
marijuana.

       The grand jury returned a six-count indictment against each appellant, alleging
a drug conspiracy between appellants and several other drug-related offenses. On
December 5, 2002, appellants each pleaded guilty to the charge of conspiracy, and the
other charges were dismissed. The conspiracy charge carried a ten-year mandatory
minimum sentence. After entry of the pleas, the government interviewed each



      3
        Gustavo Moya-Alvarado was not charged in connection with this offense, and
he voluntarily deported to Mexico. Gilberto Moya-Alvarado was charged with First
Degree Controlled Substance Crime (Possession of Methamphetamine) and was
sentenced on January 7, 2003, to serve a term of incarceration of 200 days, thereafter
to be placed on probation for a term of ten years. The Immigration and Naturalization
Service placed a hold on his case for deportation following his term of incarceration.

                                          -5-
appellant separately to facilitate their attempts to qualify for the safety valve
provision.

        In her interview, Alvarado-Rivera stated that she and her husband had sublet
the trailer home to someone else in July 2002, and that she retained a key in order to
make some repairs in the trailer. (The record indicates no inquiry into the details of
this alleged arrangement.) Alvarado-Rivera denied knowledge of the drugs in the
trailer but admitted having known of the drugs in the apartment. She explained that
she had lied about living in the trailer because she knew of the drugs in the apartment
and did not want to lead the police to them. She admitted that the drugs recovered
from the storage locker associated with her son’s apartment had been in her and her
husband’s apartment, in a closet, and that her son had moved them, as he had told the
police. While admitting to having known of drugs in the apartment generally, she
said she had not known of the drugs recovered from the dishwasher. She explained
that she is a traditional person, that she did not know how to use a dishwasher and
had never used one. She said that she had never sold drugs, though she had driven
her husband on some occasions on which he sold drugs. She said that the informant
was the only customer she had knowledge of. She said that the only money she knew
of was money she made selling food. (The record indicates no inquiry into the details
of such sales.) She said that she had used the measuring scale only once, to weigh a
bracelet.

       The prosecutor advised the district court by letter that he believed Alvarado-
Rivera had not made a complete and truthful proffer. The government identified no
questions it had put to appellant which she refused to answer. Nor did the
government produce any evidence contradicting any statement she had made. Nor
did the government identify any internal inconsistency or contradiction in appellant’s
account. The prosecutor simply stated that he did not believe appellant’s account was
truthful and complete. The government offered to interview Alvarado-Rivera a



                                         -6-
second time, but no second interview was conducted, because appellant said she had
no additional or different information to offer.

       At Alvarado-Rivera’s sentencing hearing, the government added little to its
simple declaration of disbelief: The government said that it would not be unusual,
assuming—as there was no evidence on the point—that Alvarado-Rivera had
personally sold drugs, if the government were unable to find anyone to testify to such
sales. The government asserted that “two people with this quantity of drugs are
obviously not the small-time dealers that they would portray themselves as.” The
government speculated that appellant might have led the police to the trailer, even
knowing of the drugs there, thinking the drugs were too well hidden to be found.
And the government noted that the methamphetamine found at the trailer was
distinctive in its appearance and consistency and was similar to that found at
appellants’ apartment. Again the government provided no evidence contradicting any
statement appellant made and identified no internal contradictions in the statements.
Nor did the government even specify which statements by Alvarado-Rivera were false
in the government’s view. On the basis of these brief remarks, the prosecutor stated,
“I just simply can’t suggest to this Court that she has told the complete truth. And
that’s why I’m opposing the safety valve here.”

      The district court’s consideration of appellant’s statement was similarly brief.
The court stated,

      There’s no ring of truth to this. Everything that I see tells me that for
      reasons either you’re scared of what’s going to happen to your family or
      you’re scared for yourself, I don’t believe that you’ve substantially told
      the truth. None of this makes sense to me. Apart from going to the
      trailer and apart from what [the prosecutor] said, whether it’s using the
      scale, wearing a bracelet or an informant being absolutely certain, well,
      I’ll tell you exactly how the deal is going to go, it’s going to be his wife
      driving the car, and apart from what the husband has said or not said, the


                                         -7-
      idea that, well, I only know of one person that we’ve ever sold drugs to
      and any money I’ve gotten I’ve gotten from selling food. None of it
      makes any sense the way some of these items were moved by sons. All
      of it points to me that you weren’t substantially truthful.
             ....
             Is it possible that I’ve made a mistake?
             Yes.
             But then it’s my responsibility.

Sent. Tr. at 37-38.

      The court denied the safety valve and sentenced Alvarado-Rivera to serve a
term of incarceration of 120 months (10 years).

       The government interviewed Moya-Vega twice. He claimed that his only drug
customer was the informant. Moya-Vega said he usually sold the informant a half-
ounce of cocaine, and that he made from fifty to one hundred dollars per ounce in
profit. (The record does not indicate appellant’s gross revenue per ounce.) He said
that the $3,875 in cash recovered from the bedroom closet was all from drug sales to
the informant. (The record does not indicate how much of that money constituted
profit.) Moya-Vega initially said he had sold drugs to the informant about fifteen
times. When the government said that would not account for the drug proceeds
Moya-Vega had already admitted to, appellant increased his estimate, saying he had
sold to the informant two or three times a week for about six months. Moya-Vega
said he had sold only cocaine, that he had recently received his first supply of
methamphetamine and had intended to sell it, but had not yet sold any of it. He
denied that the drugs found in the trailer were his but admitted that the drugs
recovered from his apartment and from the storage locker associated with his son’s
apartment were all his. (The record is silent as to any inquiry or statements
concerning the marijuana, concerning the identities and activities of the lessor of the



                                         -8-
trailer to appellants and of the alleged sublessee, and concerning the extent of
appellant’s presence at and control of the trailer.)

       Moya-Vega said that his source for the drugs was someone he knew only as
“Coyote” and met in the street or at McDonalds Restaurant. Moya-Vega initially said
he obtained the methamphetamine (as well as the cocaine) from Coyote. Moya-Vega
later said the source of the methamphetamine was named Carlos or Andres. Moya-
Vega said that the notes which the police believed indicated wire transfers of drug
money were written by his wife, but that the amounts (totaling 99,000) indicated
Mexican pesos rather than United States dollars. The prosecutor estimated that
99,000 pesos was then equivalent to $11,000. Moya-Vega said he got the money
from working and selling drugs. He said, at the sentencing hearing, that he had
accumulated the money from the time he arrived in the United States, over a year or
a year and a half, and that he had wired it to Mexico later, over a couple months.
(The Pre-Sentence Report indicates that Moya-Vega worked a construction job from
February, 2002, until August, 2002, making twelve dollars per hour. The record is
otherwise silent concerning Moya-Vega’s work and income history and the likelihood
that appellants could have saved $11,000 without more drug sales than Moya-Vega
admitted to. The record indicates no inquiry concerning the details of appellants’
income.)

        In its letter to the district court concerning Moya-Vega’s statements, the
government identified no questions it had put to appellant and which he refused to
answer, produced no evidence contradicting any statement he had made, and
identified no internal contradictions in appellant’s account. The prosecutor simply
stated that he did not believe appellant’s account was truthful and complete. At the
sentencing hearing, the government added very little to its conclusory statement in
the letter. The prosecutor said he believed the notes indicating wire transfers referred
to 99,000 dollars, not 99,000 pesos. The sole evidence the government relied on for
this conclusion was that the two wire transfer receipts that were recovered stated

                                         -9-
dollar, not peso, amounts. The government said that even if the entries were for
pesos, it was “not credible under these circumstances” that appellant could have
accumulated the money from his employment and drug sales over a very extended
period of time. Additionally, the government said that appellant’s statement that he
had not yet sold methamphetamine was “just not credible,” since appellant had over
a pound of it in his apartment.

       The district court’s consideration of Moya-Vega’s statement was brief. The
court stated,

      None of this makes any sense to me.
             ....
             And so, in this case is it possible [that Moya-Vega’s statement is
      truthful and complete]? I’d say one out of a thousand is generous that
      I’m wrong, I guess so, and if that’s the case I take responsibility. But I
      respectfully deny the safety valve. I believe that whether it’s out of fear
      for yourself or your family or to protect other people, the information
      isn’t coming forward . . . .

Sent. Tr. at 11-12.

      The court sentenced Moya-Vega to a term of incarceration of 135 months (11
years and 3 months).

                                          II.

       We review for clear error a district court’s finding as to the completeness and
truthfulness of a defendant’s safety-valve proffer. See United States v. Romo, 81 F.3d
84, 86 (8th Cir. 1996). The district court’s findings in these cases were based on a
credibility determination–on the court’s view that the accounts were too improbable




                                        - 10 -
to be believed.4 Ordinarily, of course, a trial court’s findings as to the credibility of
a witness, reviewed for clear error, are virtually irreversible on appeal. See United
States v. Eis, 322 F.3d 1023, 1025 (8th Cir. 2003). A credibility determination based
on the improbability of a safety valve proffer, however, presents a special case.

       A defendant has the burden to show, through affirmative conduct, that she has
made the required statement. See United States v. Santana, 150 F.3d 860, 864 (8th
Cir. 1998). We have affirmed denials of the safety valve benefit to defendants who
have failed to make the requisite effort to demonstrate that they have provided the
government a full and true statement of their knowledge of the criminal enterprise.
E.g., id. at 864 (defendant made no effort); United States v. Velasquez, 141 F.3d
1280, 1283 (8th Cir. 1998)(defendant made no effort until the day of sentencing, when
he produced an affidavit the trial court believed to be inconsistent with the evidence
produced at trial); Romo, 81 F.3d at 86 (defendant failed to respond to government
requests for specific information).

       The appellants in the present cases have met their burden of affirmatively
demonstrating that they have told the government what they know of the criminal
enterprise at issue. Each appellant participated in at least one interview with the
government, provided an account of their involvement in the offense which addressed
all essential points, indicated a willingness to answer all questions, and did so answer.
In neither case did the government identify any question it asked that was not
answered. Nothing more can be asked of a defendant to demonstrate the
completeness and truthfulness of a safety valve statement than to give as full a
statement as the government requests, and that the statement be consistent and that
it comport with the evidence.

      4
       While the district court was able to observe the appellants at their sentencing
hearings, the court was not present at the interviews of appellants, nor did the court
engage in its own inquiry of appellants with respect to the statements the court found
incredible.

                                         - 11 -
       This court has held that after a defendant has made a safety valve proffer, if the
government disputes the truthfulness or completeness of the defendant’s proffer, the
government then has the burden to present evidence on the point, and that the
adequacy of the proffer cannot be negated by the government’s mere conclusory
assertion that the proffer is not truthful or complete. See United States v. Kang, 143
F.3d 379, 382 (8th Cir. 1998)(“Whether defendant truthfully denied involvement with
more than 6.84 grams is a question of fact. The government cannot by its mere ipse
dixit establish that defendant has been untruthful. The issue requires evidence . . . .”).
The government did not present evidence that appellants’ proffers were incomplete
or untruthful. The government merely asserted that they were.

      The completeness or truthfulness of a defendant’s proffer may be negated by
evidence newly presented after the proffer is made, or by evidence otherwise
presented (e.g., at trial) or by facts agreed to (e.g., in guilty-plea proceedings). A
safety valve proffer may also be found incomplete or untruthful on the basis of
internal contradictions within the proffer itself. See, e.g., Velasquez, 141 F.3d at
1283; United States v. Weekly, 118 F.3d 576, 581 (8th Cir. 1997). In the present cases,
appellants’ proffers are not contradicted by evidence, nor are they internally
inconsistent.

      The district court found the appellants’ accounts incredible because they are
improbable. We agree that both accounts could be considered improbable–Moya-
Vega’s more so than Alvarado-Rivera’s.5 We hold, however, that this is an
inadequate basis for declining to find a defendant’s statement truthful and complete
for purposes of the safety valve provision of 18 U.S.C. § 3553(f).


      5
       While improbable, appellants’ accounts are certainly not impossible or in the
realm of fantasy. Nor is the improbability of the accounts easily assessed here. The
record does not reflect a probing inquiry into the statements of appellants and the
circumstances and events relevant to appellants’ accounts.

                                          - 12 -
        The safety valve may remedy the potential disparities in the sentencing of high-
level and low-level drug defendants. In general, high-level drug defendants can
qualify for substantial assistance reductions because their greater participation in
criminal activity resulted in their having more information to offer the government.
However, low-level drug defendants often have no new or useful information to trade
and thus cannot qualify for substantial assistance departures. Thus, the safety valve
allows low-level defendants who meet the criteria to avoid the often harsh statutory
minimum sentences. See United States v. Rojas Madrigal, 327 F.3d 738, 743 (8th Cir.
2003).6 The safety valve ought not to be denied solely on the basis of the
prosecutor’s skepticism, adopted by the district court, where defendant has given a
full, internally consistent account, uncontradicted by any evidence. To deny the
safety valve in these circumstances would thwart the purpose of the safety valve
provision to mitigate, at times, the unduly harsh and often unfair mandatory minimum
sentences imposed on first-time offenders.

      The rule of preclusion-by-skepticism would frustrate the purposes of the
federal sentencing regime more generally, as well. The safety valve is an integral part
of that regime, which was enacted to promote uniformity and consistency in
sentencing. See generally UNITED STATES SENTENCING COMMISSION GUIDELINES
MANUAL § 1A.1. To deny the safety valve because of a perceived improbability of


      6
      The sentencing judge in these cases expressed his sense, particularly as to
Alvarado-Rivera, that the mandatory minimum was excessively harsh:

      [I]n many cases, one just like this, . . . under any set of facts 120 months
      or this 10-year mandatory minimum is a lot of time and represents —
      could represent a harsh sentence . . . . Miss Alverado-Rivera [sic], I look
      at you and I see basically a decent woman, someone with no criminal
      record, someone who I would, frankly, have a better day today if I could
      leave and give you the 47 months.

Sent. Tr. at 36-37.

                                         - 13 -
a defendant’s proffer–perceptions which may vary greatly from prosecutor to
prosecutor and judge to judge would introduce a degree of arbitrariness that is
inconsistent with the federal sentencing regime.

       Denying application of the safety valve because of the possible improbability
of a defendant’s proffer creates substantive, as well as procedural, arbitrariness and
unfairness: The necessary effect of such a denial is to make subjective improbability,
rather than untruthfulness, a disqualification for the safety valve. The safety valve
provision of § 3553(f) requires a true proffer, not a probable proffer. Denial for a
reason not salient under the statute is arbitrary and contrary to the mandate of the
statute and is at odds with traditional notions of fairness under the law.

       Where the government thinks it has not received the full story from a
defendant, it has the power and facilities to prove the inadequacy of the proffer. The
government is free to request, and the trial court is free to grant, a continuance to
allow investigation of facts asserted in a defendant’s proffer. Even the mere threat
of contradiction by evidence the defendant is unaware of–a threat made openly during
a safety valve proffer, perhaps–is a substantial deterrent to false safety valve proffers.
Thorough probing into the details of a defendant’s story–which was not conducted
here–may also expose falsehoods or material gaps in a story. Substantial and
effective safeguards do exist against the wrongful application of the safety valve to
defendants who have not given the full and true statement required by 18 U.S.C. §
3553(f). By contrast, there is little to safeguard against the wrongful denial of the
safety valve to defendants who have, in fact, given a full and true statement, where
without contradictory facts or other indicia of untruthfulness, the government and the
judge say “no.” The perceived improbability alone is not enough to turn down the
safety valve.




                                          - 14 -
                                          III.

      Accordingly, for the foregoing reasons, we vacate the sentence of each
appellant-defendant and direct that the safety valve provision of 18 U.S.C. § 3553(f)
apply to each guideline sentence imposed by the district court.

MURPHY, Circuit Judge, dissenting.

        In this case the majority has shifted the safety valve burden of proof to the
government in disregard of clear statutory language to the contrary, and I dissent.
When Congress created the safety valve to give certain nonviolent drug offenders an
opportunity to escape the full force of the mandatory minimum sentencing statutes,
it restricted eligibility for this relief to individuals who have "truthfully provided to
the Government all information and evidence" they have about their offenses or
course of conduct. 18 U.S.C. § 3553(f). The district court carefully considered the
safety valve proffers made by the appellants and found they were not credible. In
light of the record before the district court, its findings that appellants had not
satisfied their burden were not clearly erroneous.

       Appellants faced mandatory minimum sentences of 10 years when they pled
guilty to conspiracy to distribute and possess with intent to distribute over 500 grams
of methamphetamine. Their only hope for a lower sentence was to qualify for the
safety valve, for the government had not moved for a substantial assistance departure
below the statutory mandatory minimum.

        The proffer statements made by appellants must be examined in the context of
the government's evidence. This evidence included the very large amount of drugs
found in their trailer (27 pounds of methamphetamine), in their apartment (1 pound
of methamphetamine of the same unusual doughy consistency and disc shape as that
in the trailer, plus cocaine and marijuana), and in the storage locker to which their son

                                         - 15 -
moved drugs from the apartment (281.5 grams of methamphetamine, 43.5 grams of
cocaine, and 82.5 grams of marijuana). In addition, $3,875 in cash was hidden in
their closet, they had receipts in the apartment for $6,000 wired to Mexico, and notes
indicated they had recently made up to $99,000 in wire transfers to Mexico. Despite
this evidence, Moya-Vega claimed to have had only one drug customer, who
happened to be the informant, and to have sold no other drugs than cocaine. His
explanation for the large amount of methamphetamine in the apartment was that his
supplier, whom he really did not know, had offered him an opportunity to sell it. That
so much methamphetamine would be fronted to an inexperienced dealer could be
found both improbable and not credible, and appellants both denied any knowledge
of the 27 pounds of similarly distinctive methamphetamine hidden in their trailer.

       During Moya-Vega's proffer interview he stated that he had sold cocaine to the
informant approximately fifteen times and that he usually sold him half an ounce for
a profit of $50 to $100. When it was pointed out that these transactions would not
account for the amount of money he attributed to his drug deals, he adjusted his
estimate up to two or three transactions every week for six months. Moya-Vega also
changed his story about who supplied him with cocaine and methamphetamine, first
stating that he did not know the source's name but that he was called Coyote, and then
on the morning of his sentencing hearing saying that the source was named Andres
or Carlos. After considering all of the evidence implicating Moya-Vega in major
drug activity and hearing his very limited admissions, the experienced trial judge
stated, "None of this makes any sense to me."

       In Alvarado-Rivera's one hour sentencing hearing, the district judge indicated
he would prefer to give her a lighter sentence but that he could not because "[t]here's
no ring of truth to this." He told Alvarado-Rivera that "I don't believe that you've
substantially told the truth." He found her statements not credible, including
comments that she had only used the digital scale to weigh a bracelet, that the only
money she knew about came from her homemade food sales, and that she had never

                                        - 16 -
used the apartment dishwasher (and was thus unaware of the methamphetamine
hidden in it). The court expressed its concern for the integrity of the system and said,
"I don't believe that it's even a close call on how I evaluate the record." In summing
up his evaluation, the district judge told Alvarado-Rivera, "I have found that you're
not eligible for the safety valve because I found that the proffer was not substantially
truthful based upon all the record that I have in front of me and the circumstantial
inferences."

        The district court's safety valve findings can be overturned only if they were
clearly erroneous. Romo, 81 F.3d at 86. When the record supports these findings,
affirmance is required regardless of which party is favored. See United States v.
Tournier, 171 F.3d 645, 647 (8th Cir. 1999). The test is not whether we "agree with
the district court's findings of disputed fact," but whether the record supports them.
Id. at 648. The standard is no less deferential when the finding concerns credibility.
See United States v. O'Dell, 204 F.3d 829, 838 (8th Cir. 2000); United States v.
Surratt, 172 F.3d 559, 566 (8th Cir. 1999).

       The safety valve provision is an exceptional one, designed to benefit "a narrow
class of defendants," H.R. Rep. No. 103-460 (1994), and appellants have the burden
of showing affirmatively that they have satisfied the final criterion in the statutory test
by giving the government truthful information and evidence. See United States v.
Romo, 81 F.3d 84, 85-86 (8th Cir. 1996). The majority purports to acknowledge that
the burden belongs to appellants, but it then turns the standard upside down. It
departs from governing precedent to require the prosecution not only to produce
evidence to establish the offenses of conviction, but also to prove the negative of
individual statements in safety valve proffers, no matter how unlikely they might be.7

      7
       The only support cited by the majority for its novel burden shifting approach
is United States v. Kang, 143 F.3d 379 (8th Cir. 1998). The central issue there was
whether the defendant had stipulated in his plea agreement to the quantity of crack
claimed by the government. The court found he had not and remanded for a factual

                                          - 17 -
       The transcripts reveal that although the district judge sympathized with
appellants, he could not find that they had been truthful. The majority examines the
proffers de novo, however, and finds that they were "not contradicted by evidence"
even though "improbable" and concludes that they were "an inadequate basis" for
withholding safety valve relief. It fails to apply the correct standard of review, and
it places a new burden of proof on the government in conflict with the governing
statute and the case law.

       The judgments should be affirmed because the district court did not clearly err
when it found that appellants had not truthfully supplied all information about their
offenses and therefore had not satisfied their burden to show they had fulfilled the
statutory conditions for obtaining safety valve relief.
                       ______________________________




finding on quantity, an issue on which the government bore the burden of proof, but
it did not shift the safety valve burden to the government.

                                        - 18 -
