                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                       No. 11-1994
                                       __________

                            UNITED STATES OF AMERICA

                                            v.

                              KYLE MICHAEL ISHMAEL,
                                            Appellant
                                    __________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (D.C. Criminal No. 1-09-cr-00388-006 )
                    District Judge: The Honorable Sylvia H. Rambo

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   January 10, 2012

           BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit Judges


                                 (Filed: March 20, 2012 )

                                       __________

                               OPINION OF THE COURT
                                     __________

NYGAARD, Circuit Judge

       Kyle Michael Ishmael appeals the sentence imposed by the District Court after he

pleaded guilty to distributing five or more grams of cocaine base, in violation of 21
U.S.C. § 841(a)(1). Ishmael contends that the District Court erred by denying him a

safety valve reduction.

                                              1.


       As we write only for the parties, we briefly relate the facts underlying this appeal.

On December 2, 2009, a grand jury issued a two-count indictment charging Ishmael and

eight other individuals with distribution and conspiracy to distribute 50 grams of cocaine

base in York County, Pennsylvania. Ishmael pleaded guilty to a superseding information

that charged him with distribution of five grams or more of cocaine base.

       Ishmael asked the District Court to sentence him without regard for the five-year

statutory minimum sentence pursuant to the “safety valve” provisions of 18 U.S.C. §

3553(f). The District Court declined, finding Ishmael ineligible for relief because he

failed to provide completely truthful information. Ishmael has appealed the District

Court’s refusal to apply the safety valve reductions. We will affirm.

                                              2.

       The safety valve provision “establish[es] that a defendant shall be sentenced

pursuant to the sentencing guidelines without regard to any statutory minimum sentence

in certain drug offense cases in the event that . . . five conditions are met.” United States

v. Sabir, 117 F.3d 750, 751 (3d Cir. 1997). These conditions are:



              1.     the defendant does not have more than 1 criminal
                     history point, as determined under the Guidelines;
              2.     the defendant did not use violence or credible threats
                     of violence or possess a firearm or other dangerous

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                       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
                       place, 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 request.

18 U.S.C. § 3553(f).

       This provision provides relief to individuals who played minor roles in drug

trafficking conspiracies, and who lacked the detailed knowledge to qualify for

“substantial assistance” sentence reductions under 18 U.S.C. § 3553(e). Such defendants

bear the burden of demonstrating, by a preponderance of the evidence, that the safety

valve provisions are applicable in his or her case. Sabir, 117 F.3d at 754. The

application of these provisions “not only requires a defendant to admit the conduct

charged, but [] also imposes an affirmative obligation on the defendant to volunteer any

information aside from the conduct comprising the elements of the offense.” United

States v. O’Dell, 247 F.3d 655, 675 (6th Cir. 2001) (internal quotation marks and citation

omitted). The safety valve provision, unlike others in the Guidelines, requires the

defendants to reveal a broad scope of information about the relevant criminal conduct to

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the authorities. See Sabir, 117 F.3d at 753. “These stringent requirements reflect the fact

that the safety valve was intended to benefit only those defendants who truly cooperate.”

O’Dell, 247 F.3d at 675 (internal quotation marks and citation omitted).

       We exercise plenary review over the District Court’s refusal to apply the safety

valve provision. United States v. Wilson, 106 F.3d 1140, 1143 (3d Cir. 1997). We can

reject the District Court’s factual finding that Ishmael did not provide the required

information and evidence only if we conclude that those findings were clearly erroneous.

Sabir, 117 F.3d at 752.

                                              3.

       Here, there is no dispute that Ishmael met the first four factors. At issue in this

appeal is whether he satisfied the fifth factor by truthfully providing the Government with

all the evidence he possessed “concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5). The

Government maintains that the District Court correctly determined that Ishmael did not

fulfill his affirmative obligation and burden to demonstrate that he was completely candid

in disclosing all information regarding his role or the role of his co-conspirators in the

drug trafficking offense. Ishmael maintains he did disclose all relevant information at

sentencing.

       The record reveals more than sufficient evidence to support the District Court’s

conclusion that Ishmael failed to completely disclose all his knowledge of the offense.

Indeed, Ishmael’s own testimony thwarted his request for a safety valve reduction. His



                                              4
failure to provide candid, verifiable information precluded the District Court’s

application of the reduction. As the District Court noted:

              Notably, [Ishmael] claimed in his proffer and in his testimony
              that he sold crack cocaine to approximately fifteen
              individuals. These individuals would contact Defendant via
              telephone when they wanted a delivery of crack cocaine.
              Defendant testified that he knew these individuals because he
              previously sold marijuana to them. When questioned about
              their identities, Defendant could only recall three first names
              and an apparent nickname. Defendant was unable to provide
              any other identification or information regarding these
              individuals. Defendant was not aware whether these
              individuals were identified with any particular group or gang.
              Defendant had no recollection as to where these sales would
              occur, stating only that they would occur wherever [his
              customers] would call him to.

              The court finds it incredible that [Ishmael] could not recall
              any further information regarding these individuals and is
              somewhat confounded by his explanation or his inability to
              do so . . . . That [Ishmael] cannot remember any other
              information about these individuals and is unable to recall any
              location where he met them strikes the court as disingenuous
              and supports a finding the Defendant has not met his burden
              of showing full and complete truthfulness of the sort
              contemplated by 18 U.S.C. § 3553(f). Thus, on this point
              alone, the court would deny the application of the safety
              valve.

       We can see no error in the District Court’s determination that Ishmael’s testimony

was not credible. Ishmael bore the burden of demonstrating by a preponderance of the

evidence that he had been candid with investigators and had volunteered “all

information” he had relating to his trafficking activities. See Sabir, 117 F.3d at 754. The

District Court’s determination that he did not meet this burden because he withheld




                                             5
information he would reasonably be expected to know was not an erroneous finding.

This was not an erroneous finding.

                                           4.

      For the foregoing reasons, we will affirm the District Court's judgment of

sentence.




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