                                                                   [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                              01/07/2000
                              No. 98-4838                  THOMAS K. KAHN
                       ________________________                CLERK

                    D. C. Docket No. 97-773-CR-DMM

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee-
                                                      Cross-Appellant,

                                   versus

SATURNINO FIGUEROA,

                                                      Defendant-Appellant,

ELIZABETH ROMAN,

                                                      Defendant-Appellant-
                                                      Cross-Appellee.

                       ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                      _________________________
                             (January 7, 2000)

Before COX and DUBINA, Circuit Judges, and KRAVITCH, Senior Circuit Judge.

PER CURIAM:
      Saturnino Figueroa and Elizabeth Roman challenge various district court

rulings related to their convictions and sentences on federal charges arising from

the discovery of heroin in their luggage at the Miami airport. The Government

cross-appeals the district court’s application of the “safety valve” provision of

U.S.S.G. § 5C1.2 to reduce Roman’s sentence. We affirm without opinion the

decisions of the district court on the issues raised in the defendants’ appeal. See

11th Cir. R. 36-1. Addressing the cross-appeal, we conclude that the district court

erred in applying the safety valve to determine Roman’s sentence, and we vacate

and remand with instructions for the district court to resentence Roman

accordingly.

                                   DISCUSSION

      Federal agents found heroin in the appellants’ luggage during an airport

inspection on their return to the United States from Aruba. Following a jury trial,

Roman was convicted on a drug-importation count. The district court sentenced

her to seventy-eight months in prison followed by three years of supervised

release. In determining the sentence, the court concluded that the “safety valve”

set forth in U.S.S.G. § 5C1.2 applied.

      The safety valve provision, which implements 18 U.S.C. § 3553(f), requires

a district court to sentence a defendant in certain drug-possession cases “without


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regard to any statutory minimum sentence” if the defendant meets five criteria.

U.S.S.G. § 5C1.2. Roman argues, and the district court concluded, that her

statements during sentencing satisfied all five criteria. Reviewing de novo the

district court’s understanding of the scope of its authority under the guideline, see

United States v. Hernandez, 145 F.3d 1433, 1440 (11th Cir. 1998), we hold instead

that Roman did not satisfy the fifth criterion because, on the facts found by the

district court, she did not meet its requirement: complete and truthful disclosure of

her knowledge of the crime, see U.S.S.G. § 5C1.2(5). We further conclude that the

fifth criterion does not permit the safety valve to be applied merely because

information a defendant chooses to withhold or misrepresent would not, even if

fully and accurately disclosed, be of use to the government.

      The relevant paragraph begins by mandating use of the safety valve if “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.” U.S.S.G. § 5C1.2(5) (emphasis added). This plain language

requires a defendant to both truthfully and fully disclose information within her

knowledge relating to the crime for which she is being sentenced. At several

junctures during the sentencing hearing, the district court made statements clearly


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indicating that it found Roman’s disclosures incomplete and untruthful. At one

juncture, the court stated that it found “aspects of it not credible.” (R.13 at 80.)

The court also noted that it did not think Roman’s statement “full” with regard to

“what she and Mr. Figueroa were doing . . . and how much she knew about it.”

(R.13 at 82.) Perhaps most damagingly, the court said that it was “not prepared to .

. . accept everything in [Roman’s] statement.” (R.13 at 83.) Nevertheless, it found

the safety valve applicable.

      In doing so, the court took pains to point out that it did not believe Roman to

have more information regarding “who was in charge of th[e] importation . . .

where the drugs came from . . . [or] who was up the line in th[e] operation.” (R.13

at 82). It apparently considered absence of knowledge on those “very critical

points the government [wa]s interested in” enough to apply the safety valve. Id.

Subsection (5), however, does not permit a sentencing court to make so much of

the possible utility of any information possessed by the defendant. Following the

independent clause mandating complete and truthful disclosure, the guideline goes

on to state: “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.” U.S.S.G. § 5C1.2(5) (emphasis added). We read this text


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as merely dispelling an interpretation that would require fully and truthfully

disclosed information to be helpful to the government before the safety valve could

properly be applied. It does not empower the sentencing court to apply the safety

valve simply because it concludes that withheld or misrepresented information

would not aid further investigation or prosecution even if properly disclosed.

      We therefore vacate Roman’s sentence and remand with instructions that the

district court resentence Roman in a manner consistent with both this opinion and

its own factual findings that she had not completely and truthfully disclosed all she

knew about the underlying crimes.

      AFFIRMED in PART; VACATED and REMANDED in PART.




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