

                    [Not for Publication]
                United States Court of Appeals
                    For the First Circuit
                                         

No. 96-1312

                  UNITED STATES OF AMERICA,

                     Plaintiff, Appellee,

                              v.

                   REYNALDO GONZALEZ-VEGA,

                    Defendant, Appellant.

No. 96-1313

                  UNITED STATES OF AMERICA,

                     Plaintiff, Appellee,

                              v.

                     SANTOS OTERO-ROLON,

                    Defendant, Appellant.
                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jose Antonio Fuste, U.S. District Judge]                                                                 

                                         

                            Before

                    Torruella, Chief Judge,                                                      
                Coffin, Senior Circuit Judge,                                                        
                  and Stahl, Circuit Judge.                                                      

                                         

Luis  Rafael Rivera,  by Appointment  of the  Court, for appellant                               
Reynaldo Gonzalez-Vega.
Miguel A.A.  Nogueras-Castro, by  Appointment of  the Court,  with                                        

whom  Benicio  Sanchez-River, Federal  Public  Defender  and Carol  A.                                                                              
Vazquez-Alvarez, Assistant Federal Public  Defender, were on brief for                       
appellant Santos Otero-Rolon.
Jacabed Rodriguez  Coss,  Assistant United  States Attorney,  with                                   
whom  Guillermo  Gil, United  States  Attorney,  and Jose  A.  Quiles,                                                                             
Assistant United States Attorney, were on brief for appellee.

                                         

                         MAY 1, 1997
                                         

          STAHL, Circuit Judge.  Defendants-appellants                      STAHL, Circuit Judge.                                          

Reynaldo Gonzalez-Vega and Santos Otero-Rolon  pleaded guilty

to  one  count  of aiding  and  abetting  each  other in  the

possession, with intent to  distribute, of three kilograms of

cocaine, in violation of 21 U.S.C.   841(a)(1), and 18 U.S.C.

  2.   At sentencing, the  district court  imposed upon  each

defendant  the  statutory  minimum   term  of  sixty  months'

imprisonment.  See 21 U.S.C.   841(b)(1)(B).  They now appeal                              

the  court's finding that they failed to meet the criteria of

the  "safety  valve"  provision  for  relief  from  mandatory

minimum sentences.  See  18 U.S.C.   3553(f)(1)-(5); U.S.S.G.                                   

   5C1.2.  Finding no  clear error in  the court's sentencing

determination, we affirm.

                              I.                                          I.                                            

            Pertinent Facts and Prior Proceedings                        Pertinent Facts and Prior Proceedings                                                             

          The  facts as set forth  in the plea agreement, and

to  which the parties agreed  at the change  of plea hearing,

are as follows.  On August 21, 1995, postal employees at  the

Hato  Rey Post Office in  San Juan, Puerto  Rico, noticed two

suspicious Express  Mail parcels addressed to  Rochester, New

York.   Upon investigation, both return  addresses were found

to be nonexistent.   In addition, a U.S. Customs  Canine Unit

detected  the  presence of  a  controlled  substance in  both

packages.   Pursuant to a search warrant, the contents of the

packages  were field  tested  and determined  to be  cocaine.

                             -2-                                          2

Postal  agents forwarded  one  package ("package  No. 1")  to

Rochester,  New  York  for  a controlled  delivery.    Postal

inspectors retained the other package ("package No. 2") for a

possible "reverse delivery."

          Surprisingly, three days later  Otero-Rolon decided

to effectuate the reverse delivery.  Armed with  the customer

copy of the Express  Mail receipt, he claimed and  signed for

package No.  2, which the authorities  had already determined

contained approximately three kilograms  of cocaine.  At that

time, a postal inspector surveilling the customer parking lot

outside  the post  office noticed Gonzalez-Vega  loitering at

the facility's  exit doors.   Gonzalez-Vega then  entered the

post office  and made eye contact with  Otero-Rolon.  Moments

later, both men exited  with package No. 2.   Agents arrested

the two men and subsequently charged them with respect to the

drugs  in  that  package.    Post  office  clerks  identified

Gonzalez-Vega as  the  person who  mailed package  No. 1  and

Otero-Rolon as the person who mailed package No. 2.

          Thereafter, both men pleaded  guilty pursuant to  a

plea  agreement in  which the  parties stipulated  to various

sentencing recommendations,  including: a base  offense level

of 28 under  U.S.S.G.    2D1.1, a three  level reduction  for

their  mitigating roles  in  the offense,  and an  additional

three level reduction for  acceptance of responsibility.  The

plea  agreement acknowledged  possible further relief  if the

                             -3-                                          3

defendants met  the criteria contained in  the "safety valve"

provision.  See 18 U.S.C.   3553(f)(1)-(5); U.S.S.G.   5C1.2.                           

          At the sentencing hearing, the district court found

the  stipulated base  offense level and  downward adjustments

applicable to the defendants.  The court determined, however,

that   neither   Gonzalez-Vega  nor   Otero-Rolon  truthfully

provided   the  government  all  information  concerning  the

offense,   as   required   by   18   U.S.C.       3553(f)(5).

Consequently,  the court declined  to afford either defendant

any relief  from the statutory minimum  term of imprisonment.

This appeal ensued.

                             II.                                         II.                                            

                          Discussion                                      Discussion                                                

          Gonzalez-Vega  and  Otero-Rolon   argue  that   the

district  court clearly erred in finding  that they failed to

meet the five  criteria listed in the safety valve provision.

That provision, if applicable, requires a sentencing court to

disregard the statutorily  imposed mandatory minimum sentence

and impose  sentence pursuant  to the Sentencing  Guidelines.

See 18 U.S.C.    3553(f).  The government concedes  that both               

men met  the first  four of  the criteria.   See 18  U.S.C.                                                              

3553(f)(1)-(4).   In  dispute is  the fifth  criterion, which

requires   a  defendant  to   "truthfully  provide[]  to  the                                                     

Government all  information and evidence  the defendant  has"                          

                             -4-                                          4

regarding  the  offense.   18  U.S.C.    3553(f)(5) (emphasis

added).1

          In order  to qualify  for safety valve  relief, the

defendant  must persuade the court  that he meets  all of the

requirements.   See United States  v. Montanez, 82  F.3d 520,                                                          

523 (1st Cir. 1996).  We review  for clear error the district

court's  factual  determinations   underlying  the   question

whether a defendant is  entitled to such relief.   See United                                                                         

States v. Miranda-Santiago, 96 F.3d 517, 527 (1st Cir. 1996).                                      

"Where  there  is  more  than  one   plausible  view  of  the

circumstances,   the   sentencing   court's    choice   among

supportable  alternatives  cannot   be  clearly   erroneous."

United States v. D'Andrea, 107 F.3d 949, 958 (1st Cir. 1997).                                     

          Previously, we have found clear error in the denial

of safety  valve relief where  "the government did  not rebut

                                                    

1.  In full, the fifth criterion requires that

          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.

18 U.S.C.   3553(f)(5).

                             -5-                                          5

[defendant's]  facially plausible tale of limited involvement

by pointing to information  [the] defendant must have known."

Miranda-Santiago, 96 F.3d at 529.  Thus, a sentencing court's                            

"bare  conclusion"  that the  defendant  failed to  cooperate

within the meaning of   3553(f)(5) is insufficient to support

such a  finding "absent  either specific factual  findings or

easily recognizable support in the record."  Id.                                                            

          We  consider  the facts  and legal  challenges with

respect to each defendant in turn.

A.  Otero-Rolon                           

          At his  change  of plea  hearing  and in  his  plea

agreement,   Otero-Rolon  admitted   that   a  postal   clerk

identified  him  as having  mailed package  No.  2.   The day

before the sentencing hearing,  however, at a debriefing with

the  government, he denied that  he mailed the  package.  The

court found the later denial incredible and concluded that it

created  the   likelihood  of  an   absence  of   information

concerning the  identity of the person who supplied the drugs

and  other particulars  surrounding the  package.   Presented

with Otero-Rolon's recantation, the resulting factual vacuum,

and other  inconsistencies in his informative  proffers,2 the

district  court  found that  Otero-Rolon  did  not truthfully

                                                    

2.  For  example, Otero-Rolon originally  told the government
that  Gonzalez-Vega  asked him  to pick  up the  Express Mail
package, then  later stated  that an acquaintance  he chanced
upon  at a shopping mall hired the two defendants to retrieve
the parcel.

                             -6-                                          6

provide all information to  the government within the meaning

of    3553(f)(5).  See United  States v. Wrenn, 66  F.3d 1, 3                                                          

(1st Cir. 1995) (explaining  that defendant failed to provide

"all"  information regarding  convicted offense  where, after

claiming to have numerous drug customers, defendant "supplied

nary a name to the government").

          Unlike  the  sentencing court  in Miranda-Santiago,                                                                        

here, the court  identified specific and supportable  reasons

for concluding  that  Otero-Rolon was  neither  truthful  nor

completely    forthcoming     in    providing    information.

Furthermore,  contrary to the defendant's proffer in Miranda-                                                                         

Santiago,  Otero-Rolon's later  denials and  new explanations                    

rendered  his inexplicit  final  version  implausible on  its

face.  While the court could have found that Otero-Rolon had,

in  the  end,  provided  the government  with  all  pertinent

information he had, its rejection of that conclusion reflects

a readily plausible view of the evidence.  Therefore, we find

no  clear error  in  the court's  factual determination  that

Otero-Rolon did not meet the fifth  requirement of the safety

valve provision.3 

                                                    

3.  Otero-Rolon suggests  that the district  court denied him
the opportunity  to provide  further relevant  information at
his sentencing  hearing.   He  also intimates  that, had  the
court queried  him, it would  have found credible  his latest
version  of the facts surrounding the offense.  Our review of
the  record  shows  otherwise.   At  the  hearing, the  court
directly  asked  Otero-Rolon  whether   or  not  he  had  any
information  to present other than that found in his previous
submissions.   Otero-Rolon replied that he did not.  The fact

                             -7-                                          7

B.  Gonzalez-Vega                             

          Like  Otero-Rolon,  Gonzalez-Vega  asserts that  he

truthfully disclosed all information that he might reasonably

have been expected to possess.  Our review of Gonzalez-Vega's

contention that  the court's findings were clearly erroneous,

however,  is  severely hindered  by  his  failure to  provide

copies of  the sentencing  hearing transcript.   See Fed.  R.                                                                

App. P. 10(b)(2)  (requiring appellant to provide  transcript

when  challenging  a  finding  on the  basis  of  evidentiary

insufficiency).   We have  repeatedly held that,  "[w]here an

appellant  raises  issues that  are  factually dependant  yet

fails to provide a transcript of the pertinent proceedings in

the   district  court,  .  .   .  we  will   not  review  the

allegations."  Muniz Ramirez v.  Puerto Rico Fire Servs., 757                                                                    

F.2d  1357,  1358  (1st  Cir.  1985);  see  also  Plummer  v.                                                                     

Springfield  Terminal Ry. Co., 5  F.3d 1, 5  (1st Cir. 1993);                                         

Batistini v. Aquino, 890  F.2d 535, 539 (1st Cir. 1989).   We                               

see no reason to depart from that rule in this case.

          We do note, however, that both the government's and

Gonzalez-Vega's appellate briefs indicate  that Gonzalez-Vega

not only told materially  inconsistent stories concerning the

offense, he may have  purposely withheld information as well.

On  the record  before  us, we  can  only conclude  that  the

                                                    

that the court did not find his final story truthful does not
mean that  the court deprived Otero-Rolon  of the opportunity
to render that account.  

                             -8-                                          8

sentencing  court's  finding  that  Gonzalez-Vega  failed  to

satisfy section  3553(f)(5)  was reasonable  considering  the

evidence before it.4

                             III.                                         III.                                             

                          Conclusion                                      Conclusion                                                

          For the  reasons stated above, we  will not disturb

the  district court's  finding that  the defendants  were not

entitled  to  relief   under  the  safety  valve   provision.

Affirmed.            Affirmed.                    

                                                    

4.  At oral argument before this court, Gonzalez-Vega claimed
that the  district court erroneously denied  him the benefits
of  the safety  valve  provision because  the information  he
withheld from  the government concerned conduct  unrelated to
the charged  offense.  See  Wrenn 66 F.3d at  3 (declining to                                             
define the scope of the phrase "offense or offenses that were
part  of the same course of conduct  or of a common scheme or
plan" within the meaning of 18 U.S.C.   3553(f)(5)).  We will
not  consider  this  unpreserved contention,  raised  at oral
argument  for the first  time.  See United  States v. De Leon                                                                         
Ruiz, 47 F.3d  452, 455  n.1 (1st Cir.  1995).   Furthermore,                
Gonzalez-Vega's  failure to  furnish a  sentencing transcript
thwarts any meaningful analysis of this issue.

                             -9-                                          9
