                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  October 19, 2018
                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                    No. 18-2003
                                               (D.C. No. 15-CR-3254-MV-4)
 PAUL GONZALEZ-AVALOS,                                   (D.N.M.)

          Defendant-Appellant.

                            __________________________

                             ORDER AND JUDGMENT *
                            __________________________


Before EID, BALDOCK, and EBEL, Circuit Judges.


      Defendant Paul Gonzalez-Avalos pleaded guilty to conspiring to possess

with intent to distribute more than 500 grams of methamphetamine and more than

100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district

court sentenced Defendant to the statutory minimum of 120 months (10 years) in

prison, 15 months below the low end of the advisory guideline range. See 21 U.S.C.

§ 841(b)(1)(A). Defendant now appeals his sentence. Our jurisdiction arises under

18 U.S.C. § 3742(a)(1). On appeal, Defendant claims the district court improperly



      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
decided he was ineligible for safety-valve relief from his mandatory minimum

sentence. See U.S.S.G. § 5C1.2(a). Specifically, Defendant challenges the district

court’s finding that he had not truthfully provided the Government with all the

information he had about the nature and extent of the criminal conspiracy to which

he pleaded guilty. 1 See id. § 5C1.2(a)(5). We reject Defendant’s challenge, uphold

the district court’s finding, and affirm its judgment.

                                          I.

      U.S.S.G. § 5C1.2(a) directs that where a defendant has committed an offense

in violation of 18 U.S.C. §§ 841 and 846, “the court shall impose a sentence in

accordance with the applicable guidelines without regard to any statutory minimum

sentence,” provided the court determines five criteria are met. Among other things,

the district court must find 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, . . . .

U.S.S.G. § 5C1.2(a)(5). “[T]he purpose of the safety-valve provisions is to benefit

only those defendants who truly cooperate” with the Government. United States v.

Galvon-Manzo, 642 F.3d 1260, 1268 (10th Cir. 2011) (emphasis added) (internal



      1
        If Defendant satisfied the criteria for safety-valve relief, his total offense
level would drop by two levels from 33 to 31 pursuant to U.S.S.G. § 2D1.1(b)(17).
This would result in an advisory guideline range of 108–135 months and eliminate
mandatory application of the statutory minimum sentence.

                                          2
quotation marks omitted). Thus, § 5C1.2(a)’s fifth criterion for relief “is very broad,

requiring disclosure of everything the defendant knows about his own actions and

those who participated in the crime with him.” Id. at 1266 (quoting United States v.

Myers, 106 F.3d 936, 941 (10th Cir. 1997)).

      A defendant has the burden of proving by a preponderance of the evidence that

he qualifies for safety-valve relief. Id. In turn, “[w]e review a district court’s

factual determination on safety-valve eligibility for clear error, including whether a

defendant has provided the Government with complete and truthful information.”

United States v. De La Torre, 599 F.3d 1198, 1205 (10th Cir. 2010) (quoting United

States v. Cervantes, 519 F.3d 1254, 1256 (10th Cir. 2008)). In conducting our

review, “we are cognizant that the district court’s application of the safety valve is

fact specific and dependent on credibility determinations that cannot be replicated

with the same accuracy on appeal.” Galvon-Manzo, 642 F.3d at 1266 (quoting

United States v. Altamirano-Quintero, 511 F.3d 1087, 1098 (10th Cir. 2007)).

                                          II.

      With this legal background in mind, here is the story. Defendant pleaded

guilty to Count I of a criminal indictment which alleged in relevant part:

      On or about August 19, 2015, in Bernalillo County, in the District of
      New Mexico, the defendants, Nayhomy Guadalupe Levya-Valencia,
      Noel Armenta-Melendrez, Adan Gallardo-Cota, and Paul Gonzalez-
      Avalos, unlawfully, knowingly and intentionally . . . conspired . . . to
      commit [the following] offenses against the United States, to wit:
      distribution of 500 grams and more . . . of methamphetamine, . . . and
      distribution of 100 grams and more . . . of heroin, . . . .

                                          3
(internal capitalization and bolding omitted). At Defendant’s change of plea hearing,

the district court asked the Government what it could prove at trial. The Government

proffered that on or about August 19, 2015, one co-defendant, Leyva-Valencia, drove

a car which contained a significant quantity of methamphetamine and heroin. After

police detained the car and uncovered the drugs, they obtained information from

Leyva-Valencia regarding two other co-defendant’s involvement in the conspiracy.

Armenta-Melendrez and Gallardo-Cota had hired Leyva-Valencia to drive the car and

deliver it to them. After following Leyva-Valencia to the delivery point, police

observed a vehicle at a gas station across the street. Although the vehicle remained

at a gas pump for around ten minutes, no one got out to pump gas. When the vehicle

departed, the police initiated a traffic stop. Inside the vehicle, officers located

Defendant as well as Armenta-Melendrez and Gallardo-Cota. Evidence obtained as

a result of the stop indicated that Armenta-Melendrez and Gallardo-Cota planned to

deliver the drugs to Defendant for distribution.

      Defendant agreed with all the facts as recited by the Government “except for

the portion as to who was going to receive the drugs.” According to defense counsel,

this was a question Defendant planned to address at sentencing in a motion for

safety-valve relief. The district court then asked Defendant “what you did that

makes you guilty of this crime”:

      [Defense Counsel]: Your Honor, we will stipulate to the facts alleged
      in the indictment.


                                          4
      The Court: I understand, but did you . . . agree with others, those folks
      who are your co-defendants . . . to distribute the methamphetamine and
      heroin?

      [Defense Counsel]: Your Honor, . . . if I may?

      The Court: Yes.

      [Defense Counsel]: My client was asked by one of the co-defendants
      to assist. He knew there were drugs in the vehicle. He wasn’t aware of
      the specifics with regard to the drugs, but he knew there were drugs in
      the vehicle . . . .

      The Court: Is that the case, Mr. Gonzalez?

      The Defendant: That’s right.

      [Defense Counsel]:     And . . . obviously, knew that they were for
      distribution.

      The Court: When you say “assist,” in what way did he assist?

      [Defense Counsel]: There . . . were phone calls; there was tracking . . .
      the drugs as they were driven in from Arizona, and he did, in his
      vehicle, take the two individuals to the site . . . where the load car was.

Following this exchange, the district court found a sufficient factual basis for

Defendant’s guilty plea and accepted it.

      The facts as recited in the presentence investigation report (PSR) provided

further details of the criminal conspiracy in which Defendant participated.

Following her arrest, Leyva-Valencia told agents that Armenta-Melendrez and his

wife asked her to drive a vehicle, a Nissan Altima, from Phoenix to Albuquerque.

They told her she would be paid $2,000. When she left Phoenix, Armenta-Melendrez

and Gallardo-Cota left Phoenix in a separate vehicle, a black Chevrolet Impala.

                                           5
Leyva-Valencia informed agents that she was to deliver her vehicle to the two men

once she arrived in Albuquerque. Agents set up a controlled delivery of the Altima

at an Albuquerque hotel. Soon agents noticed the Impala driving back and forth past

the hotel before it departed the area. A short time later, agents noticed a Dodge

Avenger parked across the street from the hotel at a gas station. The Avenger sat at

a gas pump for an extended period, but no one got out to pump gas. When the

Avenger departed, agents conducted a traffic stop and located Defendant and his two

male co-defendants.

      Following their arrests, agents conducted interviews with all three men.

Armenta-Melendrez stated that he witnessed Gallardo-Cota receive the drugs and

conceal them inside the Altima. Armenta-Melendrez further stated the drugs were

to be delivered to Defendant in Albuquerque.        Gallardo-Cota confirmed what

Armenta-Melendrez had said, adding critical detail:

      Gallardo-Cota stated he met [Defendant] Gonzalez-Avalos through
      Gallardo-Cota’s uncle who lives in Sinaloa, Mexico. Gallardo-Cota
      indicated [Defendant] typically drives to Arizona himself to pick up
      narcotics and this was the first time Gallardo-Cota had transported
      narcotics for [Defendant]. Gallardo-Cota stated [Defendant] offered to
      pay Gallardo-Cota $5,000 to transport narcotics, and Gallardo-Cota and
      Armenta-Melendrez planned to split the $5,000. Gallardo-Cota advised
      when he and Armenta-Melendrez arrived at the hotel to pick up the
      Altima they had a feeling “something was not right.” As a result,
      Gallardo-Cota stated he and Armenta-Melendrez met [Defendant] to tell
      him what was going on. According to Gallardo-Cota, [Defendant]
      decided to drive to the hotel and park at the gas station to see what was
      going on. Gallardo-Cota admitted he destroyed the cell phone he had
      used to contact [Defendant] because he was afraid of what would
      happen if law enforcement officers obtained the cell phone.

                                         6
      During his post-arrest interview, [Defendant] said Gallardo-Cota was the

nephew of an individual that had worked on [Defendant’s] car.         According to

Defendant, Gallardo-Cota and Armenta-Melendrez arrived at Defendant’s place of

work and asked him for a ride. Defendant agreed. The two men left their Impala at

Defendant’s workplace.    At this point the agent conducting the interview told

Defendant that others had informed law enforcement that the drugs were to be

delivered to Defendant. In response, Defendant claimed someone was trying to “set

him up” and wanted him to “take the fall.” Defendant then denied knowing either

Armenta-Melendrez or Gallardo-Cota. The agent asked him why he agreed to give

the two men a ride if he did not know them. Defendant continued to deny he knew

the two men and the interview terminated.

      In his sentencing memorandum, Defendant did not specifically object to the

PSR’s factual recitation but only its conclusion that Defendant had not adequately

debriefed the Government. Defendant pointed out that Armenta-Melendrez stated

during his interview that the drugs were to be delivered to Defendant “but in the

same statement stated he did not know [Defendant] and that August 19, 2015 [the

day of the men’s arrest] was the first time he had met [Defendant].” Defendant also

submitted a notarized statement Gallardo-Cota sent to Defendant’s family, without

the knowledge of Gallardo-Cota’s defense counsel, prior to sentencing.           This

statement read:

      I hereby explain that the [prior] statement I gave about [Defendant] was

                                         7
      due to fear and I felt pressured that day, August 19, 2015. I clarify that
      he was not the person in charge of the drugs that were found that day,
      August 19. I also said that he would pay me $5,000 for the favor, that
      is also false. I am writing this letter of my own volition and not under
      any threat. I also stress that if the person [i.e., Defendant] was with us
      on the day this occurred, it is because I asked him to take me. If my
      presence is required for any statement, I accept.

      At the sentencing hearing, Gallardo-Cota testified his prior statement that

Defendant would pay him $5,000 to deliver the drugs was false and that Defendant

had nothing to do with transporting the drugs. He further stated he did not know

who was going to receive the drugs. Gallardo-Cota said he went to Defendant for

help when he suspected Leyva-Valencia’s vehicle had been compromised. He said

Defendant did not come up with the plan to watch the parking lot of the hotel from

the gas station. Gallardo-Cota claimed he did not know who came up with the plan

but confirmed Defendant was driving the Avenger. Regarding his recantation,

Gallardo-Cota said someone at the jail gave him the family address to which he sent

the letter, but he did not remember who. He also testified he did not know what he

was communicating about with Defendant before destroying his cell phone.

      Based on Gallardo-Cota’s recantation testimony as well as his own denials,

Defendant asserted he was a minor participant in the conspiracy and eligible for

safety-valve relief. Defendant testified at the hearing that his only role was to assist

Gallardo-Cota after the drugs arrived in Albuquerque. Defendant was not to receive

delivery of the drugs. Defendant’s role was limited to helping Gallardo-Cota.

Defendant further testified that his only involvement in the conspiracy was to drive

                                           8
someone to a hotel. He said he had no arrangement to be paid, he was not to retrieve

the drugs, and he had no part in planning transport of the drugs. He further stated

he did not communicate with Gallardo-Cota about the drug delivery prior to the

latter’s arrival in Albuquerque. 2

      Following the testimony of Gallardo-Cota and Defendant, the Government

informed the court that if it were prepared to deny Defendant safety-valve relief, the

hearing could conclude. Otherwise the Government was prepared to fully cross-

examine both men as well as call its own case agent to the stand. Defendant through

his defense counsel did “not object to the court stopping, at this point, and making

a ruling based on what has gone on so far.” Consequently, the court concluded the

hearing, adopted the PSR’s factual findings absent any particularized objection from

Defendant, and denied Defendant’s motion for safety-valve relief.




      2
        We understand the district court’s frustration with the Government’s failure
to provide it a written summary of Defendant’s debriefing. Nonetheless, the
Government proffered a verbal summary of the debriefing at the hearing which was
largely consistent with the testimony of Gallardo-Cota and Defendant.

                                          9
                                          III.

      Defendant tells us he carried his burden and established his right to safety-

valve relief because Gallardo-Cota’s recantation “affirmatively demonstrated” the

“completeness and truthfulness” of Defendant’s proffer to the Government. And the

Government, by declining to present its own version of events at the sentencing

hearing, failed to negate this showing.          According to Defendant, “[t]he only

statements that were inconsistent with [his] statements [of denial] came from co-

defendant, Gallardo-Cota, who later recanted his statements by letter and under oath

at [Defendant’s] sentencing.” In this Circuit, however, “[a] district court’s factual

finding is clearly erroneous only ‘if it is without factual support in the record or if

this court, after reviewing all the evidence, is left with a definite and firm conviction

that a mistake has been made.’” United States v. Patron-Montano, 223 F.3d 1184,

1188 (10th Cir. 2000) (internal brackets omitted) (quoting Manning v. United States,

146 F.3d 808, 812 (10th Cir. 1998)). As our telling of the story well illustrates, the

district court’s finding that Defendant had not truthfully provided the Government

with all the information he possessed regarding the drug conspiracy has ample

support in the record. 3


      3
         Defendant’s argument that the district court misunderstood the burden of
proof is meritless. At the sentencing hearing, the district court identified the issue
as whether Defendant was telling the truth when he told the Government “he doesn’t
know anything about anything and doesn’t know anything about drugs and was not
really involved in this drug transaction.” The court also correctly observed that the
                                                                        (continued...)

                                           10
      Let us begin with Gallardo-Cota’s recantation. Of course, he either lied to

agents during his post-arrest interview, to the district court when he recanted his

post-arrest statements, or on both occasions. And the question of whether and when

a witness is lying or telling the truth is most assuredly within the district court’s

province to decide. See Patron-Montano, 223 F.3d at 1189. Moreover, we have

observed that a court should view witness recantations with “great suspicion”

because they are notoriously unreliable and often given for suspect motives. Bonney

v. Wilson, 754 F.3d 872, 886 (10th Cir. 2014). For our purposes, we note here that

witnesses with personal motives in criminal prosecutions may and not infrequently

do change their stories. See id. By accepting the PSR’s factual findings—findings

that set forth in detail the information Gallardo-Cota provided the police immediately

following his arrest—the district court necessarily found Gallardo-Cota’s recantation

not credible. In other words, the court found Gallardo-Cota’s recantation was more

likely than not untruthful. The district court’s factual determination that Defendant

was less than forthcoming in his debriefing depended in large part on an assessment

of whether the testimony of Gallardo-Cota at the sentencing hearing was credible.

“Assessing the credibility of witnesses, determining who is telling the truth and who

is lying, is the job of the district court.” United States v. Robinson, 14 F.3d 1200,



      3
       (...continued)
question as to whether Defendant testified truthfully in essentially reiterating what
he had told the Government was for the court to determine.

                                         11
1204 (7th Cir. 1994). The district court’s adoption of the PSR’s factual findings

regarding Gallardo-Cota’s post-arrest statements certainly undermines Defendant’s

assertion that he truthfully provided agents with all the information he possessed

concerning the criminal conspiracy to which he pleaded guilty. See Patron-Montano.

223 F.3d at 1189 (“By overruling [defendant’s] objections to the PSR, the district

court necessarily found that [defendant] had [previously] lied.”).

      But the court’s adoption of those findings (and Defendant’s conspicuous

failure to object to them) is not all that undermines Defendant’s claimed lack of

knowledge about the conspiracy. At the hearing, Defendant essentially testified he

knew nothing other than the fact that Gallardo-Cota had a vehicle in Albuquerque

stashed with drugs and needed Defendant’s assistance. But the representations of

Defendant’s counsel at the change of plea hearing certainly suggest Defendant knew

more. Counsel informed the court that his “client was asked by one of the co-

defendants to assist” and “[h]e knew there were drugs inside the vehicle” for

distribution. When the court asked in what way did Defendant “assist” the criminal

conspiracy, counsel acknowledged among other things that “there were phone calls;

there was tracking . . . the drugs as they were driven in from Arizona.” Undoubtedly

these representations are in tension with Defendant’s testimony at the sentencing

hearing in which he claimed he played no part in moving the drugs from Arizona and

had no communication with Gallardo-Cota about the drugs prior to the latter’s arrival



                                         12
in Albuquerque. 4   According to the PSR, Defendant at one point even denied

knowing Gallardo-Cota or Armenta-Melendrez.

      Defendant asks us to focus on the Government’s failure to present live witness

testimony at the hearing rebutting both his testimony and Gallardo-Cota’s

recantation. But the Government needed to present evidence beyond what was

already in the record only if Defendant first satisfied his burden of establishing he

had disclosed all the knowledge he possessed about the conspiracy. See Cervantes,

519 F.3d at 1256 (rejecting the argument that to prevent application of the safety

valve the Government must present some evidence to show a defendant has not been

forthcoming in his debriefing).     The short response to Defendant is that the

Government did not have the burden; he did and he failed to meet it. See id. at 1257.

On this record, the district court did not clearly err in concluding Defendant had not

truthfully provided to the Government all information and evidence he had



      4
         Defendant’s signed statement of acceptance or responsibility is also in
tension with his testimony at the sentencing hearing. The statement reads in relevant
part:

      The day before the date of the incident that was the basis for the arrest
      in this case, I was contacted by Adan Gallardo-Cota to assist in the
      recovery of a vehicle which would be driven from Phoenix, Arizona to
      Albuquerque, New Mexico with a load of drugs. On August 19, 2015,
      I had been informed that the vehicle was in transit from Phoenix to
      Albuquerque and I contacted Adan Gallardo-Cota to find out when and
      where the vehicle would be left. . . . Adan and I exchanged a number
      of phone calls. He relayed to me that one of his concerns was that he
      had lost contact with the person driving the load car.

                                         13
concerning the conspiracy to which he pleaded guilty.

      AFFIRMED.

                                     Entered for the Court,



                                     Bobby R. Baldock
                                     United States Circuit Judge.




                                       14
