                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               September 27, 2005
                                No. 05-10575                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                  D. C. Docket No. 04-00172-CR-ORL-18-DAB

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

JOSE LUIS MONTES,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                             (September 27, 2005)


Before ANDERSON, DUBINA and FAY, Circuit Judges.

PER CURIAM:

      Jose Luis Montes directly appeals his 60-month sentence for possession with

intent to manufacture and manufacturing 100 or more marijuana plants, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii). Montes argues on appeal that

the government breached its promise in the parties’ plea agreement not to oppose

sentencing at the low end of Montes’s guideline range by informing the district

court that Montes did not qualify for sentencing under the safety-valve provisions

in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Montes further argues that the

district court committed reversible error in concluding that he was not eligible for

safety-valve relief. For the reasons set forth more fully below, we affirm.

      A federal grand jury returned an indictment, charging Montes with the

above-referenced possession offense, along with conspiracy to manufacture and

possess with intent to manufacture 1,000 or more marijuana plants, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), and 846. Montes subsequently entered into

a written plea agreement with the government, in which he promised to plead

guilty to the possession charge, in exchange for the government agreeing to

dismiss the conspiracy charge.

      As part of this agreement, the government also promised that:

      At the time of sentencing, and in the event that no adverse information
      is received suggesting such a recommendation to be unwarranted, the
      United States will not oppose the defendant’s request to the [c]ourt
      that the defendant receive a sentence at the low end of the applicable
      guideline range, as calculated by the [c]ourt. The defendant
      understands that this recommendation or request is not binding on the
      [c]ourt, and if not accepted by the [c]ourt, the defendant will not be
      allowed to withdraw from the plea.

                                          2
Montes, in turn, acknowledged that he was entering into the agreement and

pleading guilty freely and voluntarily, without reliance on any promises not

contained in the agreement, and without threats, force, intimidation, or coercion.

      Montes also admitted to the following facts:

      On or about July 27, 2004 . . . Montes, did knowingly and
      intentionally possess and control a hydroponic marihuana grow
      facility in a residential home. Said residential home is located at 912
      Quinn Street Southeast, Palm Bay, Brevard County, Florida. The
      purpose of the facility was to manufacture marihuana. The total
      number of marihuana plants that [Montes] is responsible for is 151.

Finally, this plea agreement contained a sentence-appeal waiver, whereby Montes

agreed that, assuming the government did not appeal, he was waiving his right to

appeal his sentence, directly or collaterally, including a challenge to the

applicability of the safety-valve provisions contained in § 3553(f) and § 5C1.2,

“except in the following situations: (a) an upward departure by the sentencing

judge; (b) a sentence above the statutory maximum; or (c) a sentence in violation

of other law apart from the sentencing guidelines.”

      During Montes’s plea colloquy, he again confirmed that the plea agreement

contained the entire agreement between himself and the government. Montes then

informed the magistrate judge who was conducting the hearing that, due to his lack

of a criminal history, he likely would qualify for safety-valve relief and, thus, be

eligible for sentencing below his, otherwise applicable, mandatory minimum

                                           3
statutory sentence. The government responded that it did not have all of the

information necessary to determine whether Montes qualified for safety-valve

relief, and that the parties had no agreement concerning the applicability of this

relief. Montes replied that he (1) had mentioned safety-valve relief to clarify for

the record that he was not certain if he would qualify for it, and (2) understood that

the parties had no agreements that were not contained in the plea agreement.

       The magistrate also reviewed with Montes during this plea colloquy his

waiver of his right to appeal his sentence, including explaining that he was waiving

his right to attack his sentence directly or collaterally, and the exceptions under

which Montes still could appeal his sentence. Montes, in turn, agreed that he was

freely and voluntarily waiving this appellate right.1 On the magistrate’s

recommendation, the district court ultimately accepted Montes’s plea and

adjudicated him guilty.

       A probation officer then prepared a presentence investigation report (“PSI”),

which included that, in July 2004, a confidential informant (“CI”) informed agents

with the Drug Enforcement Administration (“DEA”) about a marijuana-growing

operating that the CI had seen in Montes’s home in Palm Bay, Florida. The DEA


       1
          In agreeing that he was waiving his right to appeal his sentence, Montes also explicitly
acknowledged that he was agreeing to waive his rights to contest the constitutionality of the
federal guidelines and argue that the court illegally sentenced him based on judicially determined
facts.

                                                4
agents obtained and executed a search warrant for Montes’s home. During this

search, the DEA agents recovered from the garage and other rooms 151 marijuana

plants and an extensive hydroponic-marijuana-cultivation facility. Based on

information from the CI, along with the DEA agents’ personal observations of

other persons entering and leaving Montes’s home, including delivering suspected

marijuana-growing supplies on one occasion, the agents also determined that

Montes had associated with other persons involved with growing marijuana.

Moreover, the agents discovered in the homes of these other marijuana growers

similar hydroponic-marijuana-cultivation facilities.

      The probation officer concluded that Montes was responsible for the 151

marijuana plants that DEA agents recovered from his home. The officer, therefore,

recommended that Montes’s offense level be set at 16, pursuant to

U.S.S.G. § 2D1.1(c)(12) (the guideline for offenses involving at least 10, but less

than 20 kilograms of marijuana). The probation officer also recommended a three-

level adjustment of this offense level, pursuant to U.S.S.G. § 3E1.1(a), for

acceptance of responsibility. With an adjusted offense level of 13, and a criminal

history category of I, Montes’s resulting guideline range was 12 to 18 months’

imprisonment. However, because Montes’s mandatory minimum statutory

sentence was 60 months’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(B), this



                                          5
higher sentence became his guideline sentence, pursuant to U.S.S.G.

§ 5G1.1(c)(2).2

       Montes objected to, among other things, the probation officer’s failure to

recommend sentencing under the safety-valve provisions. Montes argued that the

government had agreed during the plea colloquy that Montes should receive this

relief if he qualified for it. The probation officer responded that Montes had not

yet provided a statement that was necessary for him to meet the criteria for the

application of § 5C1.2 relief.

       At sentencing, Montes renewed his objection to the PSI’s and the

government’s failure to recommend that he be sentenced below his mandatory

minimum statutory sentence, pursuant to the safety-valve provisions, arguing that

this failure resulted in a breach of the parties’ plea agreement. In doing so, Montes

conceded that the government had not promised as part of this agreement that it

would not object to safety-valve relief. Montes argued, instead, that, because he

only had pled guilty to the cultivation charge, the government had violated the

terms of their plea agreement by questioning him about the conspiracy and,

therefore, causing him to be ineligible for safety-valve relief.



       2
           Section 5G1.1(b) provides that “[w]here a statutorily required minimum sentence is
greater than the maximum of the applicable guideline range, the statutorily required minimum
sentence shall be the guideline range.” See U.S.S.G. § 5G1.1(b)

                                               6
       The government responded that it had not asked Montes to admit to

participating in a conspiracy. The government explained that the prosecutor and a

DEA agent had advised Montes and his counsel, following the plea colloquy, that

they had questions about (1) the ownership of the house in which Montes lived and

cultivated the marijuana, (2) how Montes had begun the cultivating operation,

(3) where Montes had obtained the materials for this operation, and (4) the contents

of ledgers that agents recovered from Montes’s home. The government also

informed the court that Montes had failed to “tell all,” as demonstrated by his

“storm[ing] out of the courtroom” during a meeting in which the prosecutor and

case agent were asking him these questions, and his subsequent failure to

reschedule a meeting or, otherwise, to provide a written statement to the court.

       Implicitly overruling Montes’s objection to the probation officer’s and the

government’s failure to recommend sentencing under the safety-valve provisions,

the court acknowledged that Montes had not plead guilty to conspiracy. The court,

however, determined that the government’s questions to Montes had had “nothing

to do with the conspiracy.” The court then sentenced Montes to 60 months’

imprisonment, 3 years’ supervised release, and a $100 special assessment fee.3


       3
          In imposing its sentence, the court noted that, if Montes “s[at] down and qualif[ied] for
safety[-]valve with the government,” the court, instead, would sentence Montes to 15 months’
imprisonment. Subsequent to Montes’s sentencing, we reiterated that the defendant must “tell
all” “not later than the time of the sentencing hearing,” but it clarified that district courts have

                                                 7
       Montes argues on appeal that the government violated its promise in the

parties’ plea agreement not to oppose sentencing at the low end of Montes’s

guideline range by contending at sentencing that Montes was not eligible for

safety-valve relief. Montes again concedes that the government did not explicitly

promise to recommend that he be sentenced under the safety-valve provisions.

Montes, however, asserts that the government “manipulated [the] situation” by

forcing him to admit to participating in a conspiracy, and then arguing that he did

not qualify for safety-valve relief based on his refusal to make such a concession.

Montes further contends that, under the terms of the parties’ plea agreement, the

government could choose not to endorse his request for safety-valve relief, but it

could not oppose it. Montes concludes that, because a breach of the plea

agreement occurred, we should remand the case for a new sentencing hearing, with

the order that the government “refrain from taking any position on the issue of the

application of the safety valve.”4



the discretion to continue sentencing hearing to give a defendant the opportunity to debrief for
the purpose of qualifying for safety-valve relief. See United States v. Garcia, 405 F.3d 1260,
1274-75 (11th Cir. 2005). However, because Montes did not move for a continuance, and has
not argued on appeal that the court committed reversible error in not continuing his hearing, he
has waived our review of this issue. See United States v. Nealy, 232 F.3d 825, 830-31 (11th Cir.
2000) (holding that an argument not raised in an appellant’s opening brief is deemed waived).
       4
         As Montes notes, in the event of a breach of a plea agreement, there are two available
remedies: “[t]he court can order specific performance of the agreement or afford the defendant
the opportunity to withdraw the plea.” See United States v. Jefferies, 908 F.2d 1520, 1527 (11th
Cir. 1990).

                                               8
      We review de novo whether the government has breached a plea agreement.

United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004) (citing United

States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). The Supreme Court

determined in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d

427 (1971), that, “when a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. at 499. Thus,

we have concluded that, “in determining whether the government has breached a

plea agreement, we must first determine the scope of the government’s promises.”

Copeland, 381 F.3d at 1105.

      We also have explained that, “[i]n determining the meaning of any disputed

terms in an agreement, the court must apply an objective standard and ‘must decide

whether the government’s actions are inconsistent with what the defendant

reasonably understood when he entered his guilty plea.’” Id. (quotation omitted).

If the language in a plea agreement is ambiguous, we will consider extrinsic

evidence to determine the defendant’s reasonable understanding of the agreement,

and it will read the ambiguous provision against the government. Id. at 1105-06.

On the other hand, if the agreement is not ambiguous, we are “limited to the

unambiguous meaning of the language in the agreement.” Id. at 1106.



                                          9
      In Mahique, we examined under plain-error review a defendant’s challenge

to the district court’s refusal to allow him either to withdraw his plea, or to enforce

his plea agreement. Mahique, 150 F.3d at 1331-32. The defendant argued that the

government breached the agreement by opposing his request for, among other

things, to be sentenced under the safety-valve provisions. Id. at 1332. This plea

agreement included the government’s unambiguous promise not to oppose the

defendant’s request to be sentenced under the safety-valve provisions “if he [was]

eligible, and the Court ma[de] appropriate findings regarding the criteria . . ..” Id.

at 1331. We concluded that, because the government’s promise was conditioned

on the defendant being eligible for the safety-valve provisions, and because

eligibility for the safety-valve provisions was dependent on the defendant

truthfully providing to the government all information and evidence he had

regarding the offense—an act that had not occurred—the government did not

breach the agreement by arguing that the defendant was not eligible for safety-

valve relief. Id. at 1332-33.

      Similarly, the language in Montes’s plea agreement was unambiguous. Our

review, thus, is limited to its terms. The government promised that, “in the event

that no adverse information [was] received suggesting such a recommendation to

be unwarranted, the United States [would] not oppose the defendant’s request to



                                           10
the Court that the defendant receive a sentence at the low end of the applicable

guideline range, as calculated by the Court.” The government, however, did not

promise to recommend sentencing under the safety-valve provisions. Indeed, the

government explicitly stated during the plea colloquy that it did not have all of the

information necessary to determine whether Montes qualified for safety-valve

relief, and that the parties had no agreement concerning the applicability of this

relief to Montes’s sentence. Montes, as well, conceded during this hearing that the

parties had no agreements that were not contained in the plea agreement.

      Furthermore, to the extent Montes’s brief can be construed as arguing that

the government breached the plea agreement by asking him questions relating to

conspiratorial acts that Montes believes fell outside of the conduct to which he

plead guilty, he has failed to cite to a promise in his plea agreement that was

breached. Regardless, as discussed below, to qualify for safety-valve relief, the

defendant, before sentencing, must “truthfully provide[] to the [g]overnment 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.” See

U.S.S.G. § 5C1.2(a)(5). In addition, the defendant has the burden of showing that

he has met all of the safety-valve factors. See United States v. Johnson, 375 F.3d

1300, 1302 (11th Cir. 2004). Montes failed to provide any written statement



                                          11
showing that he satisfied this criteria, or to establish that the court erred in

concluding that the government’s questions as to marijuana cultivation fell outside

the scope of § 5C1.2(a)(2). Thus, under the unambiguous terms of the plea

agreement, the government did not breach the agreement by opposing sentencing

under the safety-valve provisions after determining that Montes did not qualify for

such relief. See Copeland, 381 F.3d at 1106.

       As discussed above, in a separate argument, Montes contends that the

district court erred in not sentencing him under the safety-valve provisions.

Montes specifically contends that the court erred in concluding that he failed to

truthfully provide to the government all of the information he had on the offense

without first holding an evidentiary hearing to determine whether Montes had

information that the government was seeking. Montes further asserts that (1) he

was not required to have a “sit down interview” with the government to qualify for

safety-valve relief, (2) the government “sabotaged” the “sit down interview”

Montes did attend by demanding that he provide irrelevant information about a

conspiracy, and (3) the court erroneously relied on the government to decide

whether Montes qualified for safety-valve relief. Finally, Montes concedes that his

plea agreement contained an appeal waiver, but he contends that the waiver is not

applicable because (1) the federal guidelines no longer are mandatory, (2) the court



                                            12
departed upward in sentencing him, and (3) the court violated his constitutional

right to due process by failing to conduct an evidentiary hearing.

      The government responds that Montes’s challenge to his sentence should be

dismissed because Montes’s challenge on appeal “falls squarely within” the appeal

waiver contained in his plea agreement. To the extent the government is arguing

that Montes waived his right to raise on appeal his challenge to his sentence, we

review the validity of an appeal waiver de novo. See United States v. Weaver, 275

F.3d 1320, 1333 n.21 (11th Cir. 2001). A sentence-appeal waiver is valid and

enforceable if made knowingly and voluntarily. Id. at 1333 (citing United States v.

Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993)). Thus, a waiver will be

enforced if the government demonstrates either that: “(1) the district court

specifically questioned the defendant about the provision during the plea colloquy,

or (2) it is manifestly clear from the record that the defendant fully understood the

significance of the waiver.” Weaver, 275 F.3d at 1333.

      Montes acknowledged in his plea agreement that, assuming the government

did not appeal, he was waiving his right to appeal his sentence, directly or

collaterally, including a challenge to the applicability of the safety-valve provisions

contained in § 3553(f) and § 5C1.2, “except in the following situations: (a) an

upward departure by the sentencing judge; (b) a sentence above the statutory



                                          13
maximum; or (c) a sentence in violation of other law apart from the sentencing

guidelines.” Morever, during the plea colloquy, after the magistrate reviewed with

Montes his sentence-appeal waiver, Montes agreed that he was freely and

voluntarily waiving his right to appeal his sentence, excluding the above-

referenced exceptions. Thus, Montes’s sentence-appeal waiver is enforceable.

      In addition, to the extent Montes is arguing that this sentence-appeal waiver

is not applicable to his appeal, this argument is without merit. To the extent

Montes is arguing that his 60-month mandatory minimum statutory sentence

constituted an upward departure—one of the exceptions in his appeal waiver—we

have concluded that:

      Application of § 5C1.2 does not . . . result in a departure from the
      guidelines range. Rather, application of § 5C1.2 allows a defendant to
      be sentenced within the guideline range by granting relief from the
      minimum sentence mandated by statute.

See United States v. Cruz, 106 F.3d 1553, 1556 (11th Cir. 1997) (emphasis in

original). Similarly, although Montes is contending that the waiver is inapplicable

because the federal guidelines no longer are mandatory, we have determined that

plea agreement language permitting a defendant to escape an appeal waiver if the

sentence exceeded the maximum permitted by statute did not allow the defendant

to appeal his sentence based on the Supreme Court’s recent decision in United




                                          14
States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).5 See

United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir.), petition for cert. filed,

No. 04-1663 (U.S. June 7, 2005).

       Finally, to the extent Montes is arguing that his due-process claim falls

outside the sentence-appeal waiver, we recently have rejected a defendant’s similar

argument that his Booker challenge, that the district court applied the guidelines in

an unconstitutional manner, fell within an exception to his appeal waiver, that is,

that the defendant could appeal a “violation of the law apart from the guidelines.”

See United States v. Grinard-Henry, 399 F.3d 1294, 1297 (11th Cir.), cert. denied,

125 S.Ct. 2279 (2005). We explained in Grinard-Henry that the defendant’s

argument directly involved the application of the sentencing guidelines, and that

the defendant had agreed as part of his plea agreement that his sentence would be

imposed in conformity with the federal guidelines. Id. Here, as well, Montes is

directly challenging the application of the guidelines in appealing the court’s

refusal to sentence him pursuant to the safety-valve provisions.

       Regardless, even if we were to conclude that Montes’s waiver was invalid,



       5
         In Booker, the Supreme Court held that the mandatory nature of the federal guidelines
rendered them incompatible with the Sixth Amendment’s guarantee to the right to a jury trial.
See Booker, 543 U.S. at ___, 125 S.Ct. at 749-51. In a second and separate majority opinion, the
Booker Court also instructed that the federal guidelines are now only advisory. See id. at ___,
125 S.Ct. at 764-65.

                                               15
or that it did not encompass his arguments on appeal, Montes has not shown that

reversible error occurred. When reviewing the denial of safety-valve relief, we

review for clear error a district court’s factual determinations, while we review de

novo the court’s legal interpretation of the statutes and sentencing guidelines.

Johnson, 375 F.3d at 1301. Post-Booker, we continue to review a district court’s

factual determinations for clear error. See United States v. Crawford, 407 F.3d

1174, 1178 (11th Cir. 2005) (reviewing factual findings for minimal-planning

enhancement). We cannot find clear error unless it is “left with a definite and firm

conviction that a mistake has been committed.” Id. at 1177 (quotation omitted).

      Section 3553(f) of Title 18 of the United States Code directs district courts

to “impose a sentence pursuant to the guidelines promulgated by the United States

Sentencing Commission . . . without regard to any statutory minimum sentence, if

the court finds at sentencing, after the [g]overnment has been afforded the

opportunity to make a recommendation, that” five of five listed factors are present.

18 U.S.C. § 3553(f). This provision, as well as U.S.S.G. § 5C1.2, which contains

the same list of factors, is commonly called the “safety valve.” Johnson, 375 F.3d

at 1302. It applies to a limited number of crimes, including cultivating of

marijuana, in violation of § 841. Id. Morever, as discussed above, the defendant

has the burden of showing that he has met all of the safety-valve factors. Id.



                                          16
      The last safety-valve factor—the only factor at issue in this case—requires

the defendant to show 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. 18 U.S.C. § 3553(f)(5);

U.S.S.G. § 5C1.2(a)(5). To satisfy this “tell all” factor, 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 (quotation omitted). Thus, it is the offense for which the defendant

has been convicted that determines the scope of information that the defendant

must disclose. Id.

      In Johnson, we examined a defendant’s challenge to the district court’s

decision not to sentence him under the safety-valve provisions, based on the

court’s finding that the defendant had failed to divulge information about the

intended distribution of the 273 marijuana plants he was cultivating. Id. at 1301-

02. The defendant argued that he provided all of the information necessary

because the scope of information he was required to disclose was properly defined

with reference to the crime of cultivation. Id. at 1302. We determined that, “given

the [] large number of plants, the district court did not err in reasonably inferring



                                           17
that [the defendant] was growing the marijuana for distribution,” and that “[n]o

reasonable law enforcement officer investigating this cultivation offense would

[have] fail[ed] to ask [the defendant] about the intended distribution of such a large

quantity of marijuana.” Id. at 1302-03. We, therefore, concluded that the district

court properly determined that information about the intended distribution related

to the defendant’s offense of conviction, and that it did not err in finding that the

defendant failed to satisfy the “tell all” factor in § 5C1.2(a)(5) by not disclosing

this information. Id. at 1303.

      In pleading guilty, Montes agreed that he was responsible for cultivating 151

marijuana plants. The PSI also included that a search of Montes’s home had

revealed an extensive hydroponic-marijuana-cultivation facility, and that DEA

agents had observed other persons entering and leaving Montes’s home carrying

suspected marijuana-growing supplies. Moreover, these DEA agents discovered in

the homes of other marijuana growers similar hydroponic-marijuana-cultivation

facilities. Thus, similar to the scenario in Johnson, it was reasonable for the

government to seek information about (1) the ownership of the house in which

Montes lived and cultivated the marijuana, (2) how Montes had begun the

cultivating operation, (3) where Montes had obtained the necessary materials for

this operation, and (4) the contents of ledgers that agents recovered from Montes’s



                                           18
home. The district court, therefore, did not err in finding, at least implicitly, that

Montes, in refusing to answer any of these questions, failed to satisfy the “tell all”

factor in § 5C1.2(a)(5).6

       To the extent Montes also is arguing that the district court committed

reversible error in not conducting an evidentiary hearing before denying him

safety-valve relief, we generally review a district court’s denial of an evidentiary

hearing for abuse of discretion. United States v. Gay, 251 F.3d 950, 951 (11th Cir.

2001). However, when a defendant raises an argument for the first time on appeal,

such as here, our review only is for plain error. United States v. Peters, 403 F.3d

1263, 1270 (11th Cir. 2005). Under plain error review, we

       may not correct an error the defendant failed to raise in the district
       court unless there is: (1) error, (2) that is plain, and (3) that affects
       substantial rights . . .. Even then, [this Court] will exercise [its]
       discretion to rectify the error only if it seriously affects the fairness,
       integrity, or public reputation of judicial proceedings.

Id. at 1271 (internal quotations and marks omitted).



       6
           Although it arguably would have been preferable if the district court had stated
explicitly that it was not sentencing Montes under the “safety valve” provisions because Montes
failed to comply with the “tell all” factor in § 5C1.2(a)(5) by not providing information relating
to his cultivation of marijuana, remand is not necessary here because the evidence in the record
clearly shows that he did not qualify for this relief. Cf. United States v. Reid, 139 F.3d 1367,
1368 (11th Cir. 1998) (vacating and remanding the defendant’s sentences when the defendant
provided information he possessed concerning the criminal activity to authorities, the district
court did not explain why it had concluded that the defendant did not qualify for relief under the
“safety valve” provisions, and the evidence in the record also did not clearly establish that the
defendant did not qualify).

                                                19
      Under § 5C1.2(a)(5), “the fact that the defendant has no relevant or useful

other information to provide . . . shall not preclude a determination by the court

that the defendant has complied with this requirement.” See U.S.S.G.

§ 5C1.2(a)(5). However, assuming that Montes could show error and that it was

plain, he has failed to explain why the court’s failure to conduct an evidentiary

hearing affected his substantial rights. Indeed, as discussed above, Montes failed

to submit any evidence from which the court could infer that he either shared with

the government all of the information he had about the offense conduct and related

activities, or that he had no such information. The court, therefore, did not plainly

err in not conducting an evidentiary hearing before deciding not to sentence

Montes under the safety-valve provisions. See Peters, 403 F.3d at 1271.

      Accordingly, we conclude that the government did not breach the terms of

the parties’ plea agreement by informing the court that Montes did not qualify for

sentencing under the safety-valve provisions. Furthermore, we conclude that, even

if Montes did not waive his right to appeal his sentence, the district court did not

commit reversible error in concluding that Montes was not eligible for safety-valve

relief. We, therefore, affirm.

      AFFIRMED.




                                          20
