                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2446
                                   ___________

United States of America,           *
                                    *
      Plaintiff - Appellant,        *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * Northern District of Iowa.
Debra Kay Tournier, now known as    *
Debra Kay Laucamp,                  *
                                    *
      Defendant - Appellee.         *
                               ___________

                             Submitted: December 15, 1998

                                 Filed: April 8, 1999
                                  ___________

Before BEAM and LOKEN, Circuit Judges, and BOGUE,* District Judge.
                            ___________

LOKEN, Circuit Judge.

       Debra Kay Tournier pleaded guilty to participating in a drug conspiracy in
violation of 21 U.S.C. § 846. The government appeals her ninety-month prison
sentence. The issue is whether the district court1 erred in finding her eligible for

      *
       The HONORABLE ANDREW W. BOGUE, United States District Judge for
the District of South Dakota, sitting by designation.
      1
       The HONORABLE MICHAEL J. MELLOY, Chief Judge of the United States
District Court for the Northern District of Iowa.
“safety valve” relief under18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 after Tournier
repeatedly lied to government interviewers about aspects of the offense and did not
truthfully cooperate until just before her sentencing hearing. We affirm.

        Tournier and three co-defendants were indicted for conspiring to possess and
distribute methamphetamine in Waterloo and Cedar Rapids, Iowa. Some months
later, Tournier agreed to plead guilty to one conspiracy count, an offense warranting
a mandatory minimum ten-year prison sentence. See 21 U.S.C. § 841(b)(1)(A).
Congress provided relief for less culpable drug offenders from its harsh mandatory
minimum sentences in 18 U.S.C. § 3553(f), enacted as part of the Mandatory
Minimum Sentencing Reform Act of 1994. See H.R. Rep. No. 103-460, 1994 WL
107571. This “safety valve” provision mandates that Tournier be sentenced under the
Guidelines, without regard to the statutory minimum sentence, “if the court finds at
sentencing” that she satisfies five criteria. It is undisputed Tournier meets the first
four criteria; the issue on appeal is whether she satisfies § 3553(f)(5) and U.S.S.G.
§ 5C1.2(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.

       Seeking to qualify for safety valve relief, Tournier submitted to three
government interviews in the months prior to her sentencing. The government also
interviewed her three co-defendants. As the government learned more about the
offense from Tournier’s conspirators, it became convinced she had provided false
denials or withheld information on relevant subjects such as:


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      -- whether she had provided drugs to her minor daughters;
      -- whether her daughter’s minor boyfriend sold drugs for her;
      -- whether she knew of drug trafficking by her sisters and a niece;
      -- whether she personally profited from the drug trafficking;
      -- whether she had seen a co-defendant in possession of a handgun;
      -- whether an incident involving Gary or Deborah Alloway was drug-related;
      -- the identities of additional drug suppliers and customers.

The government advised Tournier it would oppose safety valve relief. She then
agreed to a fourth interview in which she made additional admissions. Convinced she
was still lying, the government filed a sentencing memorandum urging no safety
valve relief. Just before the sentencing hearing, Tournier filed an affidavit containing
still more admissions. At sentencing, the government conceded she had provided
complete and truthful information prior to the hearing. The government nonetheless
argued that her previous lies and omissions made her ineligible for safety valve relief.

       Considering it a close question, the district court found that Tournier is eligible
for safety valve relief under § 3553(f) and U.S.S.G. § 5C1.2. However, the court
sentenced her to ninety months in prison, near the top of her Guidelines range of 78-
97 months, because she had barely qualified for the safety valve. The court
explained:

      I’m going to overrule the government’s objection. I think Ms. Tournier
      has finally come forward and been forthright, although it’s been a little
      bit of pulling teeth to get the information . . . . I guess I can see without
      condoning why she was reluctant to admit that she provided controlled
      substances to her children, and I think under the circumstances since she
      has prior to the hearing finally come forward with what now appears to
      be a complete and truthful rendition of the evidence, I will overrule the
      objection and grant her the “safety valve” that’s been requested.

                                  *    *    *    *   *

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      I do not think that this is a bottom-of-the-guideline range case. . . . The
      principal reason is the issue of “safety valve” was a very close call in
      this case, and I think I very well could have been justified in sustaining
      the government’s objection which would have meant Ms. Tournier was
      at the ten-year mandatory minimum . . . . [B]ecause of the fact that Ms.
      Tournier’s cooperation has been so begrudging in this case, although it
      finally did turn out to be sufficient -- although I emphasize barely
      sufficient -- to get the “safety valve,” I believe something in at least the
      upper, above-the-middle point of sentencing guidelines range is
      appropriate in this case.

       On appeal, the government argues we must review the district court’s decision
de novo because Tournier is not entitled to the safety valve as a matter of law. This
contention is without merit. The court’s decision is consistent with the plain
language of § 3553(f)(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.” The government argues we should construe
§ 3553(f)(5) to prohibit sentencing courts from applying the safety valve to
defendants who wait until the last minute to cooperate fully. The government also
suggests that § 3553(f)(5) must be denied to those whose tardy or grudging
cooperation burdens the government with a need for additional investigation. These
factors are expressly relevant to other sentencing determinations, such as the third
level of reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b), and
substantial assistance motions under U.S.S.G. § 5K1.1. But they are not a
precondition to safety valve relief, which is even available to defendants who put the
government to the expense and burden of a trial. See United States v. Shrestha, 86
F.3d 935, 940 (9th Cir. 1996). Of course, these factors may be considered by the
sentencing court in finding whether a defendant “truthfully provided to the
Government all information.” But the government’s contention that these factors
should be written into the statute must be addressed to Congress or the Sentencing
Commission, not this court.


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       Section 3553(f) specifically refers to the five safety valve criteria as findings.
Thus, it is well settled we review the district court’s application of § 3553(f) for clear
error. See United States v. Romo, 81 F.3d 84, 86 (8th Cir. 1996). Limiting our
review to the question of clear error, it is apparent we must affirm. The district court
found that Tournier (1) truthfully provided, (2) to the government, (3) all information
she had about the offense, (4) not later than the time of the sentencing hearing. The
record supports these findings; indeed, the government does not contest them. The
government instead argues the district court’s application of § 3553(f)(5) conflicts
with our decision in United States v. Long, 77 F.3d 1060 (8th Cir.), cert. denied, 519
U.S. 859 (1996). We disagree.

       In Long we reviewed for clear error the denial of safety valve relief to a
defendant who deliberately misled the government until her cross-examination at the
sentencing hearing. Bearing in mind our deferential standard of review, we have no
difficulty concluding that Long is factually distinguishable. For example, in Long the
defendant did not “come clean” until she saw what the government was able to prove
at the sentencing hearing, and even then she withheld information until confronted
on cross-examination. In contrast, Tournier’s full and truthful cooperation, though
grudging and fitful, was completed before the sentencing hearing. The two cases may
present only a difference in degree, not in kind, but subtle distinctions are important
in fact finding, and they are for the sentencing court, not this court, to draw. Under
the clear error standard, we need not agree with the district court’s findings of
disputed fact to affirm. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-75
(1985); United States v. Wells, 127 F.3d 739, 744-45 (8th Cir. 1997). Thus, even if
Long and this case are largely indistinguishable, in the absence of an error of law it
is appropriate to affirm in both cases.

      The judgment of the district court is affirmed.




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A true copy.

      Attest:

         CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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