             Case: 18-12681    Date Filed: 08/02/2019   Page: 1 of 15


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 18-12681
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:17-cr-00221-EAK-AAS-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

ELISAEL BURGOS-VASQUEZ,

                                                             Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (August 2, 2019)

Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

      Elisael Burgos-Vasquez was indicted for conspiracy with intent to distribute

500 grams or more of a methamphetamine mixture, 21 U.S.C. §§ 841(b)(1)(A)(i),
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(viii), 846, and possession with intent to distribute 500 grams or more of a

methamphetamine mixture, 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). At a change-of-

plea hearing, Burgos-Vasquez knowingly and voluntarily pleaded guilty to both

counts, but he did not enter into a plea agreement with the government. With a

criminal history category of I and a total offense level of 35, the advisory

Guideline range was 168 to 210 months’ imprisonment. The district court

sentenced Burgos-Vasquez to 168 months’ imprisonment on both counts, with both

sentences to be served concurrently.

      Burgos-Vasquez now appeals his sentences, raising three issues. He first

argues the district court failed to assess independently whether he was entitled to

safety-valve relief. He next contends the district court imposed an unreasonable

sentence. Finally, he asserts the district court misunderstood one of his arguments

at sentencing. For the reasons that follow, we affirm.

                                          1.

      Burgos-Vasquez first argues that the district court failed to assess

independently whether he was entitled to safety-valve relief under the Guidelines.

      The Guidelines’ safety-valve provision for certain drug offenses allows a

district court to reduce a defendant’s offense level by two levels if he meets all five

criteria set forth in U.S.S.G. § 5C1.2(a). U.S.S.G. § 2D1.1(b)(18). One criterion

provides that, “not later than the time of the sentencing hearing,” the defendant

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must “truthfully provide[] 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.” Id. § 5C1.2(a)(5).

      Whether Burgos-Vasquez complied with this “tell-all” provision is at issue

here. After his guilty plea, Burgos-Vasquez refused to participate in interviews

with the government, asserting that he did not know the identity of the person who

delivered the methamphetamine to him and that he did not trust federal authorities.

At sentencing, he told the court that he admitted to possessing the

methamphetamine when arrested and answered questions during his arrest. He

maintained that he did not know who gave him the drugs and contended that he

had been fully forthcoming with what he did know. The government responded

that Burgos-Vasquez had failed to provide even basic information, such as “who

sent him, who he was dealing with, who he was going to be paying after this

transaction, how many times he had done this, where these people lived, where he

picked up the drugs, what he was instructed to do, [and] where to wire the money

to Mexico.” The government noted that, even if he did not know any exact

identities, Burgos-Vasquez could have described what the others looked like, what

cars they were driving, where he met them, how many times they had spoken, or

what phone numbers they used—but he did not. Burgos-Vasquez then requested a




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continuance so he could participate in a proffer of additional information to the

government. The court granted the request.

      At the continued sentencing hearing, Burgos-Vasquez reported that he had

met with two Drug Enforcement Administration (“DEA”) agents and answered

their “questions to the best of his ability.” The government again disagreed. It

believed he had again given incomplete responses. Although it acknowledged that

some of these responses may have been due to “lack of memory,” the government

specifically said it believed Burgos-Vasquez withheld information regarding an

individual in Mexico who went by the alias “Chico.” One of the DEA agents who

interviewed Burgos-Vasquez testified that he did not believe Burgos-Vasquez had

been “fully open and honest during [their] discussion.” Burgos-Vasquez had

identified Chico as his supplier but described him only in “very general terms.”

The agent said that Burgos-Vasquez, apparently concerned for his family, refused

to provide any other information on Chico. Burgos-Vasquez maintains that he did

not know anything more than what he provided. Whatever the case, Burgos-

Vasquez did not supply Chico’s residence (or approximate location) or any contact

information, such as a phone number. Burgos-Vasquez had possessed, according

to the agent, about $50,000 worth of methamphetamine. The agent asserted that,

because a supplier would not entrust someone he did not know well with $50,000




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worth of merchandise, it was implausible for Burgos-Vasquez to say he did not

“know his supplier well enough to identify him other than providing an alias.”

      The court then questioned the agent regarding the quantity of

methamphetamine and its value, as well as his experience. In particular, the

following exchange occurred:

      THE COURT: All right. Now, in your experience of four years as an
      agent, are people who are selling that type of merchandise going to let
      just any individual have possession of that much substance of those
      particular items without having some type of relationship with the
      individual in possession of the drugs?

      [AGENT]: No, Your Honor. In my experience, there would be some
      type of fairly close pre-existing relationship between the courier and
      the supplier.

      THE COURT: And knowledge of who the relationship would be with
      is certainly expected and commonplace; is it not?

      [AGENT]: Yes.

The court then concluded: “The safety valve will not be granted to this defendant.

That’s the Court’s ruling. I think there is enough evidence on the record.”

      “When reviewing the denial of safety-valve relief, we review for clear error

a district court’s factual determinations.” United States v. Johnson, 375 F.3d 1300,

1301 (11th Cir. 2004). “For a finding to be clearly erroneous, this Court ‘must be

left with a definite and firm conviction that a mistake has been committed.’”

United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (quoting United

States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004)).
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       Section 5C1.2(a)(5) is a “‘tell-all’ provision: to meet its requirements, the

defendant has an affirmative responsibility to ‘truthfully disclose to the

government all information and evidence that he has about the offense and all

relevant conduct.’” Johnson, 375 F.3d at 1302 (quoting United States v. Yate, 176

F.3d 1309, 1310 (11th Cir. 1999)). “The burden is on the defendant to come

forward and to supply truthfully to the government all the information that he

possesses about his involvement in the offense, including information relating to

the involvement of others and to the chain of the narcotics distribution.” United

States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997).

       Burgos-Vasquez alleges the district court did not independently assess the

facts and impermissibly relied only on “the government’s assertion of dishonesty.”

The record does not support this allegation. Although Burgos-Vasquez was

forthcoming about his criminal activity, the government says he did not provide

full information regarding Chico. 1 There are two possibilities in the record that

explain why Burgos-Vasquez did not provide more information: either he feared

for his family’s safety, or he did not know anything more than he already

disclosed. On this record, both possibilities are unavailing. The plain language of

§ 5C1.2(a)(5) contains no exception to its tell-all requirement. Moreover, the


       1
         Burgos-Vasquez makes much of the fact that the government admitted he may have
forgotten certain information, but the government specifically stated it believed he was
withholding information regarding Chico.
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district court was entitled to disbelieve Burgos-Vasquez’s assertion that he

disclosed everything he knew. This entitlement was especially pronounced

considering the DEA agent’s testimony that even a low-level drug trafficker would

normally be able to provide a modicum of identifying information about his co-

conspirators.2

       Burgos-Vasquez also argues that the government did not establish the DEA

agent’s degree of training or experience: “For all we know, [the agent] may have

done nothing but sit at a desk and have no prior drug arrests.” Thus, he contends,

we must look to the Federal Rules of Evidence to determine whether the testimony

was lay or expert testimony and to determine whether he offered an appropriate

opinion. The Federal Rules of Evidence, however, do not apply at sentencing

hearings. Fed. R. Evid. 1101(d)(3) (“These rules . . . do not apply to . . .

sentencing.”). Indeed, as the Guidelines explain, evidence relevant to sentencing is

broadly admissible:




       2
          Burgos-Vasquez also suggests Chico may not have been involved in Burgos-Vasquez’s
offense conduct: “While this individual ‘Chico’, may legally qualify as being part of the
conspiracy, there is no evidence to suggest he played anything more than a minimal role in this
case. It appears quite possible that ‘Chico’ simply made an introduction connecting one person
to another.” This suggestion is quite astonishing. The reason we do not know the extent of
Chico’s role is because Burgos-Vasquez did not—and still does not want to—divulge that
information. Burgos-Vasquez cannot use the ignorance with which he leaves the government
and the courts as a basis for relief on appeal. He certainly may not avail himself of
§ 5C1.2(a)(5), which requires the defendant to provide “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” (emphasis added).
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       When any factor important to the sentencing determination is
       reasonably in dispute, the parties shall be given an adequate
       opportunity to present information to the court regarding that factor.
       In resolving any dispute concerning a factor important to the
       sentencing determination, the court may consider relevant information
       without regard to its admissibility under the rules of evidence
       applicable at trial, provided that the information has sufficient indicia
       of reliability to support its probable accuracy.

U.S.S.G. § 6A1.3(a); see also 18 U.S.C. § 3661. Despite Burgos-Vasquez’s

insinuations, the agent’s testimony was reliable. The district court obviously

believed that the agent did more than “sit at a desk,” as it questioned him regarding

what happens between suppliers and couriers. The agent comfortably answered

the questions. Burgos-Vasquez’s contrary speculation does not demonstrate clear

error. Moreover, the agent did not testify regarding any legal conclusions, but

instead focused on Burgos-Vasquez’s minimal cooperation during the proffer that

Burgos-Vasquez had himself requested. 3

       Burgos-Vasquez further argues that he “provided substantial information

concerning his father, mother, brother, sister, and wife” and that the DEA could

have attempted “to find out more about what was going on in Mexico.” But he




       3
          Burgos-Vasquez also attaches some significance to the fact that the government said,
“We agree with probation not to have a two-level reduction for safety valve.” He points out that
the probation officer had not taken a position on the safety-valve reduction. But the probation
officer’s position is irrelevant to this appeal. What matters—what we evaluate—is the district
court’s decision not to grant the reduction. Nothing indicates the district court assigned
inordinate, if any, weight to the government’s inaccurate statement.
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does not suggest that his family was involved in this drug conspiracy, and he does

not explain how this information is relevant to his own involvement.

       Finally, Burgos-Vasquez points out that the district court, after pronouncing

sentence, erroneously remarked, “To the extent permitted by your plea agreement,

you have the right to appeal from the judgment and sentence within 14 days from

this date.” Burgos-Vasquez did not have a plea agreement, and he says this error

demonstrates the district court did not make a full, independent assessment of the

safety-valve issue. This minor misstatement, uttered well after the discussion in

question had ended, hardly demonstrates that the district court clearly erred in a

relevant way. Burgos-Vasquez also takes issue with the district court’s preceding

comment: “Had you seen fit to cooperate—this Court is always open for

cooperation and a further Rule 35 4 from the government, in the future your

sentence is and could be possibly reduced” (emphasis added). Burgos-Vasquez

suggests the court was confused when it said “further” and that it was referring to a

non-existent motion by the government to reduce his sentence. Yet in context, it is

readily apparent the district court knew that Burgos-Vasquez had not cooperated.

We see the district court’s comment as nothing more than a gracious offer—one it

later reiterated: “Now, I wish you well in the future. Get this behind you. The



       4
         Rule 35(b) of the Federal Rules of Criminal Procedure allows the government to move
the court to reduce a sentence following a defendant’s “substantial assistance.”
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Court is always open for a Rule 35. Once you get to prison, whatever you know

will never be fresher than it is right now. Don’t wait too long to provide

cooperation because what you know may become stale and worthless.”

       The district court did not clearly err in denying the safety-valve reduction.

                                             2.

       Burgos-Vasquez next argues that his sentences are substantively

unreasonable because the district court considered improper information in

imposing them. He contends that the court violated his constitutional rights.

       In asking for a Guideline sentence, the government addressed the very pure

methamphetamine—known as “Ice” 5—that Burgos-Vasquez possessed. The

government said Ice “is predominantly manufactured in Mexico” and then

smuggled into the United States. Producing Ice in Mexico, the government said,

“has promulgated a cycle of violence, corruption, and devastation within that

country. Not only in Mexico, but in communities across the United States.”

Burgos-Vasquez objected, saying there was no credible evidence to support the

notion “that a drug coming from Mexico is more of a problem than a drug

manufactured in the United States or any other country in the world.” He

continued: “I think it also gets into a discriminatory issue regarding equal



       5
        The Guidelines define Ice as a “mixture or substance containing d‑methamphetamine
hydrochloride of at least 80% purity.” U.S.S.G. § 2D1.1(c)(C).
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protection and due process of law that people of Mexican descent, although Mr.

[Burgos-Vasquez] is a U.S. Citizen, are going to be punished more harshly than

those who are not.” The district court overruled Burgos-Vasquez’s objection.

         Burgos-Vasquez contends the district court erred in two regards. First, he

says the government’s remarks about methamphetamine promoting a cycle of

violence and corruption are unsubstantiated. Thus, he argues, he was sentenced

based on unreliable information, violating his due process rights. Second, Burgos-

Vasquez insinuates the district court discriminated against him based on race,

ethnicity, or national origin. He even requests resentencing before a different

judge.

         We review the reasonableness of a sentence under an abuse-of-discretion

standard. United States v. Moran, 778 F.3d 942, 982 (11th Cir. 2015). “We

review constitutional questions de novo.” United States v. Castillo, 899 F.3d 1208,

1212 (11th Cir. 2018).

         “A defendant has a due process right . . . not to be sentenced based on false

or unreliable information.” United States v. Ghertler, 605 F.3d 1256, 1269 (11th

Cir. 2010). “To prevail on a challenge to a sentence based on the consideration of

such information, a defendant must show (1) that the challenged evidence is

materially false or unreliable and (2) that it actually served as the basis for the

sentence.” Id.

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      A sentence may be substantively unreasonable when the district court bases

the sentence on an impermissible factor, such as a defendant’s race, ethnicity, or

national origin. See United States v. Man, 891 F.3d 1253, 1275 (11th Cir. 2018);

U.S.S.G. § 5H1.10. To prove a constitutional claim of racial discrimination in a

sentencing decision, a defendant must show that race was a motivating factor. Cf.

McCleskey v. Kemp, 753 F.2d 877, 892 (11th Cir. 1985) (en banc).

      First, Burgos-Vasquez fails to demonstrate his within-Guideline sentence is

substantively unreasonable. With respect to his assertion that he was sentenced

based on unreliable information, he fails to prove the information in question

“actually served as the basis for the sentence.” See Ghertler, 605 F.3d at 1269. It

is true that the court remarked, in overruling Burgos-Vasquez’s objection, that the

government’s comments were “fair.” And it said it had considered the parties’

statements in determining the sentences to impose. But the court also made clear

that its focus in pronouncing sentence was on the “seriousness of the crime”; the

“substantial amount of involvement” Burgos-Vasquez had with the drugs; the

“proliferation of these drugs in this country and their effect in this country”; and

the presentence report, Guidelines, and 18 U.S.C. § 3553(a) factors. The sentence

imposed by the district court was not an abuse of discretion.

      Further, Burgos-Vasquez’s allegation of discrimination distorts the record.

He asserts that the government “urged the District Court to punish

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methamphetamine trafficked by those of Mexican descent more harshly and the

District Court accepted that argument.” What the government actually said is that

the methamphetamine at issue here—Ice—is particularly dangerous. According to

the government, Ice is most frequently manufactured in Mexico. That fact, if true,

has absolutely nothing to do with Burgos-Vasquez or his national origin. It has to

do with the “seriousness of the offense,” 18 U.S.C. § 3553(a)(2)(A), and the

pernicious effects of this form of methamphetamine in both the United States and

in Mexico. In any event, Burgos-Vasquez points to nothing in the record that

indicates his race or ethnicity motivated the district court in sentencing him. Cf.

McCleskey, 753 F.2d at 892.

      In sum, the district court did not violate Burgos-Vasquez’s constitutional

rights in imposing his substantively reasonable sentences.

                                          3.

      Burgos-Vasquez’s final argument pertains to the Guidelines’ ten-to-one

sentencing disparity between Ice and less-pure forms of methamphetamine. See

U.S.S.G. § 2D1.1(c). For example, to receive a base offense level of 38, the

offense must involve 45 kilograms or more of less-pure methamphetamine, but it

need only involve 4.5 kilograms of Ice. Id. § 2D1.1(c)(1). The commentary to

§ 2D1.1 explains the rationale for this disparity:

      The purity of the controlled substance . . . may be relevant in the
      sentencing process because it is probative of the defendant’s role or
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      position in the chain of distribution. Since controlled substances are
      often diluted and combined with other substances as they pass down
      the chain of distribution, the fact that a defendant is in possession of
      unusually pure narcotics may indicate a prominent role in the criminal
      enterprise and proximity to the source of the drugs.

Id. § 2D1.1, cmt. n.27(C).

      Burgos-Vasquez contends the disparity is unwarranted. At sentencing, he

told the district court it had “the authority to rule that the 10-to-1 disparity between

pure methamphetamine and . . . nonpure methamphetamine is not appropriate.” He

pointed to Kimbrough v. United States, 552 U.S. 85 (2007), where the Supreme

Court held, in the context of the Guidelines’ former 100-to-1 disparity between

crack cocaine and cocaine powder, that “district courts are entitled to reject and

vary categorically from the crack cocaine Guidelines based on a policy

disagreement with those Guidelines.” Spears v. United States, 555 U.S. 261, 265–

66 (2009) (clarifying Kimbrough). And indeed, we have recognized that

“Kimbrough allows a district court to vary from the guidelines based solely on its

judgment that the policies behind the guidelines are wrong.” United States v. Irey,

612 F.3d 1160, 1212 (11th Cir. 2010) (en banc).

      Burgos-Vasquez conclusorily asserts that the district court “simply failed to

recognize that it had the authority to make a downward departure.” Yet we

“assume the sentencing court properly understood its authority absent a record

indication to the contrary.” Moran, 778 F.3d at 982. Here, there is no record

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indication that the district court believed it lacked the authority to grant a

downward variance. Burgos-Vasquez made the court aware of this argument in his

sentencing memorandum and at the hearing. The district court correctly referred to

the Guidelines as “advisory” at least three times. It also dedicated a portion of the

sentencing hearing to his request for a variance, which it ultimately explicitly

denied. It then imposed a sentence at the low end of the Guideline range. In short,

the record reflects not that the district court misunderstood Burgos-Vasquez’s

straightforward argument but that it rejected it. It was within its discretion to do

so.

                                         ***

      Burgos-Vasquez’s sentences are AFFIRMED.




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