                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2007

USA v. Velez
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2435




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 04-2435
                                    ___________


                          UNITED STATES OF AMERICA

                                           v.

                                 GILBERTO VELEZ,

                                      Appellant
                                    ___________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 03-cr-00696-2)
                     District Judge: Honorable Harvey Bartle, III
                                     ___________


                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                   April 24, 2007


    BEFORE: SCIRICA, Chief Judge, FUENTES and ALARCÓN,* Circuit Judges.

                               (Filed: August 6, 2007)

                                    ____________

                             OPINION OF THE COURT
                                  ____________


      *
         The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
FUENTES, Circuit Judge.

      Gilberto Velez pleaded guilty to possession with intent to distribute five kilograms

or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), an offense which

carries a mandatory minimum sentence of 120 months in prison. At sentencing, the

government opposed application of the “safety valve” provision, 18 U.S.C. § 3553(f),

pursuant to which the District Court could have imposed a sentence below the statutory

minimum. The government argued that Velez had been untruthful in proffering

information regarding the circumstances of his offense. After defense counsel conceded

to the government’s argument, the District Court imposed the mandatory minimum

sentence, without applying the safety valve. On appeal, Velez argues that the District

Court erred in doing so. We will affirm.

                                            I.

      On October 1, 2003, a federal drug enforcement task force received information

that cocaine had been smuggled aboard a flight from San Juan, Puerto Rico to

Philadelphia, Pennsylvania. Task force agents stationed at Philadelphia International

Airport observed Velez’s co-defendant, David Espinosa-Cruz, claim two matching

suitcases from the baggage area. Espinosa consented to questioning by the agents and

allowed them to open his suitcases, which contained over forty kilograms of cocaine.

While in custody, Espinosa received a call on his cellular phone from Velez, whom

agents located and approached outside the terminal. Velez consented to a search of his

                                            -2-
two suitcases, which contained approximately forty-six kilograms of cocaine.

       On October 17, 2003, Velez made a proffer of information to the government,

which the government summarized at sentencing as follows:

       Mr. Velez had met a man in a bar in Puerto Ric[o] . . . . Mr. Velez made a
       comment that he needed money. Mr. Velez does not know the first name,
       the last name or the nickname for the man . . . . Mr. Velez gave him his
       cellular telephone number.

               Two days later, Mr. Velez received a phone call. The person on the
       phone was not the man he had met in the bar, but a second person. That
       person told him about a trip that he could take. Mr. Velez was not provided
       a ticket . . . . He had to pay for his ticket by himself . . . .

              Mr. Velez was asked where he would be staying in Philadelphia and
       [whom] he was meeting. He stated that he did not know who he was going
       to be meeting . . . . He said that he simply was going to go to any hotel and
       wait for a phone call on his cellular telephone. He said he did not know
       how he was going to be paid.

              He did not have a phone number for any of these people . . . . [H]e
       was just going to basically trust these people to pay him when he returned to
       Puerto Rico.

App. 32a-33a. Velez later pleaded guilty to possession with intent to distribute five

kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).

       At sentencing, the government opposed application of the safety valve provision,

18 U.S.C. § 3553(f), because it had concluded that Velez’s proffered statement was not

credible.1 In response to the government’s position, defense counsel stated: “[o]n the



       1
           To be eligible for the safety valve, a defendant must establish that:

       (1) the defendant does not have more than 1 criminal history point, as

                                               -3-
issue of the safety valve, I have discussed with my client that it is his right to take the

stand today and convince you that the Government is wrong in not believing his account

that led to this offense and how it was carried out. And he has declined to do so,

accepting the judgment of the Government that they simply did not believe his story.”

App. 34a-35a.

       Without applying the safety valve, therefore, the Court sentenced Velez to the

mandatory minimum of 120 months in prison. This appeal followed.2

                                              II.


       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 enterprise, as defined in [21
       U.S.C. § 848]; 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.

18 U.S.C. § 3553(f).
       2
        We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
United States v. Batista De La Cruz, 460 F.3d 466, 468 (3d Cir. 2006). We review legal
conclusions de novo and factual findings for clear error. United States v. Sabir, 117 F.3d
750, 752 (3d Cir. 1997).

                                              -4-
       On appeal, Velez argues that the District Court erred in failing to apply the safety

valve provision in arriving at his sentence. He contends that “the only information of

record regarding [his] interview with government counsel and agents was that which was

provided by government counsel.” Appellant’s Br. at 25. He also argues that he was

“unfairly deprived of a reasonable opportunity to receive [the] benefit” of the safety

valve, because he was not “fully informed as to the requirements of the safety valve.” Id.

at 32, 29. For these reasons, he argues, we must remand for re-sentencing.3 We disagree.

       That the “only information” regarding the veracity of Velez’s proffer came from

the government does not mean that remand is required. The District Court provided

Velez an opportunity to contest the government’s characterization of his proffer, but

Velez explicitly declined to do so. In response to the government’s characterization,

defense counsel stated that Velez “accept[ed] the judgment of the Government that they

simply did not believe his story.” App. at 35a. Having declined the opportunity to

contest the government’s position at sentencing, Velez cannot now fault the District Court

for concluding that he “did not cooperate with the Government.” 4 App. at 39a.


       3
        Velez also argues on appeal that the District Court erroneously considered the
sentencing guidelines to be mandatory, in violation of United States v. Booker, 543 U.S.
220 (2005). However, Velez was sentenced to the statutory minimum under §
841(b)(1)(A); we therefore reject this contention. See United States v. Williams, 464
F.3d 443, 449 (3d Cir. 2006).
       4
         It is well established that a defendant who waives a known right cannot seek
relief on that issue on appeal. See, e.g., Virgin Islands v. Rosa, 399 F.3d 283, 291 (3d
Cir. 2005); United States v. Kikumura, 947 F.2d 72, 77 (3d Cir. 1991). Furthermore,
Velez does not point out “what information [he] could have provided” to the government,

                                             -5-
       Furthermore, the record contradicts Velez’s claim that he was unaware of the

requirements of the safety valve provision. As the government stated at sentencing, it

addressed the applicability of the safety valve throughout the proceedings—for example,

in its plea memorandum filed in February of 2004, and in its sentencing memorandum

filed in May of 2004. In addition, the District Court made sure that Velez understood the

basis for his sentence by taking time to have the pre-sentencing report, which

recommended against application of the safety valve, translated into Spanish. The Court

then confirmed both that Velez understood what the report said and that he had no

objections to it.

       Finally, in response to the government’s position on the safety valve, defense

counsel stated before the District Court that “I have discussed with my client that it is his

right to take the stand today and convince you that the Government is wrong in not

believing his account. . . [a]nd he has declined to do so.” App. at 34a-35a. We therefore

reject Velez’s contention that he was not adequately informed of the requirements of the

safety valve provision.

                                             III.

       For the foregoing reasons, we will affirm the judgment of sentence.




if any, had he been “fully informed as to the requirements of the safety valve.”
Appellant’s Br. at 31, 29.

                                             -6-
