                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                 September 29, 2011
                                   TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 10-2239
                                              (D.C. No. 1:10-CR-01006-JEC-1)
 OSCAR RAUL VILLANUEVA,                                 (D. N. Mex.)

          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TYMKOVICH, Circuit Judge, and
FREUDENTHAL, District Judge **.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Defendant Oscar Raul Villanueva appeals the district court’s sentence of


      *
        This order and judgment is not binding precedent, except under the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.
      **
         The Honorable Nancy D. Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
sixty months’ imprisonment for (1) conspiracy to possess heroin with intent to

distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846; and (2)

possession of heroin with intent to distribute, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. According to Villanueva, the district

court should have applied the “safety-valve” provision contained in 18 U.S.C. §

3553(f) and sentenced him without regard to the statutory minimum of sixty

months’ imprisonment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.

                                          I

                                Factual Background

      On March 22, 2010, Jarrell Perry, a Drug Enforcement Administration

(DEA) agent, was on duty at the Limousine Express Bus Station in Albuquerque,

New Mexico. There, he observed passengers disembarking from a bus that had

recently arrived from El Paso, Texas. Agent Perry specifically noticed Villanueva

as he departed from the bus because he was carrying a small black satchel and no

other luggage and because he walked through the bus station without meeting

anyone. ROA, Vol. 2 at 4. Perry also noticed that Villanueva’s tennis shoes were

bulging. Id. Suspecting that he might be transporting narcotics in his shoes,

Perry approached Villanueva, displayed his DEA badge, and asked for permission

to speak with him. Id. Villanueva eventually gave Perry permission to search

him, and Perry then handcuffed him in order to perform the search. Id. While

                                          2
conducting the search, Perry lifted up the innersole of Villanueva’s shoe and

found a substance wrapped in plastic wrap that was later confirmed to be heroin.

Id.

       After Agent Perry removed the handcuffs, Villanueva “attempted to flee the

area on foot.” Id. Following a “short chase,” Agent Perry apprehended

Villanueva and placed him under arrest. Id. Shortly thereafter, Rudy Villarreal,

an officer with the Bernalillo County Sheriff’s Office who speaks fluent Spanish,

approached Agent Perry and offered his assistance. Id. From then on, Agent

Perry communicated with Villanueva through Officer Villarreal. Id. After

Villanueva was informed of his Miranda rights, he agreed to speak with Agent

Perry. Id. Villanueva stated that he was being paid $1,000 to deliver the drugs to

someone in Albuquerque who was going to call him on the cell phone he was

carrying in the black satchel. Id., Vol. 2 at 4-5. At Agent Perry’s request,

Villanueva agreed to call the person and set up a meeting to deliver the drugs.

Id., Vol. 2 at 5.

       A few minutes later, Jorge Aispuro-Aristegui drove up to the front of the

bus station, spotted Villanueva, and signaled for him to come to the car. Id.

Villanueva walked up to the passenger side of the car and spoke through the

passenger side window, which was slightly open. Id. As Villanueva began to

enter the car, DEA agents opened the driver’s side door and arrested Aispuro-

Aristegui. Id.

                                          3
      Villanueva was subsequently taken to the DEA office in Albuquerque. Id.

There, officers searched his satchel and found a few pieces of paper with illegible

notes scribbled on them and three bundles of cash totaling $4,250.75. Id. Each

cash bundle was folded in half and wrapped in rubber bands. Id. Villanueva

agreed to speak with DEA agents through an interpreter. Id. He admitted to

knowingly transporting drugs, although he claimed that he did not know the type

or quantity of the narcotics that had been placed in his shoes. Id., Vol. 2 at 6.

Villanueva also told the agents that a friend in Mexico had asked him if he

wanted to earn $1,000 by transporting drugs from Mexico to El Paso and that he

agreed to do so because he needed the money. 1 Id.

      Villanueva further informed DEA agents that two weeks after he spoke with

his friend, he received a telephone call from a man known as “Pariente” asking if

he was willing to transport drugs. Id. Villanueva agreed to travel to El Paso to

meet with him. Prior to traveling to El Paso, Villanueva renewed his visa, which

enabled him to legally travel to and from the United States. Id. Villanueva

initially informed DEA agents that he arrived in El Paso on Friday, March 19 and

spent the weekend in El Paso with Pariente’s friends. Id. However, when DEA

agents told Villanueva that records obtained from the El Paso Intelligence Center


      1
        In his opening brief, Villanueva states that he has had serious financial
troubles resulting from a car accident in which he fractured his arm and from
medical treatment for his mother’s “diabetes, kidney failure, hypertension, and
lumbar spine problems.” Aplt. Br. at 6.

                                           4
(EPIC) indicated he had traveled multiple times between El Paso and Cuidad

Juarez that weekend, Villanueva admitted that he stayed the weekend in a hotel in

Ciudad Juarez, Mexico and not in El Paso. Id. Villanueva then stated that he met

with Pariente at the hotel and discussed the pending drug transaction. Id.

Pariente gave Villanueva the shoes, the black satchel, the cell phone, and

instructions regarding how to deliver the drugs to Aispuro-Aristegui in

Albuquerque. Id.

      On April 5, almost two weeks after his arrest, Villanueva and his attorney

met with DEA agents and the federal prosecutor for a “debriefing.” Id., Vol. 2 at

7. Villanueva stated that he first traveled from El Paso to Albuquerque on March

19 with his friend Cesar Valenzuela, who was looking to purchase a car in

Albuquerque. Id., Vol. 2 at 8. He further stated that while he waited for Pariente

in Cuidad Juarez during the weekend of March 20, he crossed into the United

States several times to shop with money Pariente had previously given him for

expenses. Id.

      DEA agents questioned Villanueva regarding the notes and money found in

his possession on March 22. Id. When asked about the notes, Villanueva stated

that they were “just notes” and were not related to any other trips from Mexico to

the United States. Id. When asked about the money found on his person,

Villanueva stated that the money belonged to him and that he was going to use it

to pay for arm surgery and to buy vitamins and nutrition supplements, which he

                                         5
planned to sell for profit in Mexico. Id., Vol. 2 at 8-9. Villanueva stated that he

arranged the money in the three bundles “for no particular reason,” and he denied

that he had received the money from drug trafficking. He also insisted that he

had never previously delivered drugs to anyone. Id., Vol. 2 at 9.

                                     Sentencing

      Villanueva subsequently pled guilty to possession with intent to distribute

and conspiracy to possess with intent to distribute. The district court set a date

for sentencing, and the probation office prepared a presentence report. Because

DEA officials recovered over 980 grams of heroin from Villanueva’s shoes, the

probation office set his base offense level at thirty. The probation office gave

Villanueva a two-level reduction for playing a “minor role” in the offense and a

three-level reduction for acceptance of responsibility. See USSG §§ 3B1.2(b),

3E1.1. Because Villanueva had no criminal history, he was given a criminal

history category of I. Combined with an offense level of 25, this created a

guideline range sentence of sixty to seventy-one months with a mandatory

minimum sentence of sixty months under 21 U.S.C. § 841(b)(1)(B)(I).

      At sentencing, Villanueva argued that he qualified for a safety-valve

sentence under 18 U.S.C. § 3553(f), which requires district courts to sentence

certain first-time drug offenders without regard to the applicable statutory

minimum sentence. In order to prove this assertion, Villanueva had subpoenaed

Agent Perry, and he was present in the courtroom. Villanueva asked the district

                                          6
court to permit him to call Agent Perry to testify regarding Villanueva’s

cooperation with the DEA investigation. The district court denied this request,

stating to Villanueva’s counsel that “You’ve said everything he’s going to say, so

I’ve heard it.” Aplt. Br., Ex. B at 6. The district court then gave the government

the chance to respond. It opposed Villanueva’s request for a safety-valve

sentence, arguing that he did not “truthfully provide[] . . . all information and

evidence” he had relating to his drug-trafficking offense as required by 18 U.S.C.

§ 3553(f). After permitting Villanueva to speak, the district court denied his

request for a safety-valve sentence and sentenced him to sixty months’

imprisonment.

                                           II

                                 Standard of Review

      “We 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. Cervantes,

519 F.3d 1254, 1256 (10th Cir. 2008) (citation omitted). We review de novo a

district court’s “legal interpretation guiding its application of the safety-valve

provision.” Id. We review for abuse of discretion the question of whether a

district court afforded the defendant an adequate opportunity to present evidence.

United States v. Rutter, 897 F.2d 1558, 1566 (10th Cir. 1990).




                                           7
                                      Analysis

      Villanueva claims the district court erred by (1) concluding that he was not

entitled to a safety-valve sentence, and (2) refusing to permit him to call Agent

Perry to testify. We address both arguments in turn.

A.    Safety-Valve Sentence

      Under 18 U.S.C. § 3553(f), district courts are required to sentence certain

first-time drug offenders “without regard to any statutory minimum sentence.”

See also United States v. Jeffers, 329 F.3d 94, 100-01 (2d Cir. 2003). The basic

purpose of this “safety-valve provision” is to “mitigate the harsh effect of

mandatory minimum sentences on certain first offenders who played supporting

roles in drug-trafficking schemes.” United States v. Ortiz-Santiago, 211 F.3d

146, 152 (1st Cir. 2000). “[W]ithout such a safety valve, for ‘the very offenders

who most warrant proportionally lower sentences—offenders that by guideline

definitions are the least culpable—mandatory minimums generally operate to

block the sentence from reflecting mitigating factors.’” United States v. Acosta-

Olivas, 71 F.3d 375, 378 (10th Cir. 1995) (quoting H.R. Rep. No. 103-460, 103d

Cong., 2d Sess.). Thus, this provision is designed to prevent the “least culpable

offenders [from] receiv[ing] the same sentences as their relatively more culpable

counterparts.” United States v. Pena-Sarabia, 297 F.3d 983, 988 (10th Cir. 2002)

(quoting H.R. Rep. No. 103-460).

      A defendant must meet five requirements in order to qualify for a safety-

                                          8
valve sentence under 18 U.S.C. § 3553(f). The defendant has the burden to prove

by a preponderance of the evidence that he or she meets each of these

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

Cir. 2007). There is no dispute in this case that Villanueva satisfies the first four

requirements, which are: (1) the defendant does not have more than one criminal

history point; (2) the defendant did not use violence (or the threat of violence) or

possess a weapon in connection with the offense; (3) the offense did not result in

death or serious bodily injury to any person; and (4) the defendant was not an

organizer, leader, manager, or supervisor of others in the offense. 18 U.S.C. §

3553(f)(1)-(4). In order to satisfy the fifth requirement, the requirement at issue

in this case, the defendant 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.

§ 3553(f)(5).

      The meaning and scope of the phrase “same course of conduct or of a

common scheme or plan” in § 3553(f)(5) is important. The Sentencing

Guidelines state that this phrase refers to “the offense of conviction and all

relevant conduct.” Acosta-Olivas, 71 F.3d at 378 (quoting USSG § 5C1.2,

comment (n.3)). Offenses are considered “relevant conduct”—and therefore part

the same course of conduct or a common scheme or plan—if they are

“substantially connected to each other by at least one common factor, such as

                                           9
common victims, common accomplices, common purpose, or similar modus

operandi.” USSG § 1B1.3, comment (n.9(A)). Such offenses must be

“sufficiently connected or related to each other as to warrant the conclusion that

they are part of a single episode, spree, or ongoing series of offenses.” Id.,

comment (n.9(B)). In other words, there must be “distinctive similarities”

between the offenses “that signal that they are part of a single course of conduct

rather than isolated, unrelated events.” United States v. Ortiz, 613 F.3d 550, 558

(5th Cir. 2010) (quotations omitted).

      Villanueva claims the district court clearly erred in not granting his request

for safety-valve relief because “the record reflects that [he] provided the

government with all the information he knew about the instant offense and its

relevant conduct.” Aplt. Br. at 27. In support of this assertion, Villanueva points

to his cooperation at the time of his arrest in securing the arrest of Aispuro-

Aristegui and at his subsequent debriefing with DEA officials and the federal

prosecutor. Villanueva alleges that, in both instances, he “truthfully provided to

the Government all information and evidence” he had regarding his criminal

conduct, as required by 18 U.S.C. § 3553(f)(5).

      We disagree. Villanueva would have us limit the “same course of conduct

or of a common scheme or plan” in § 3553(f)(5) to his actions on the date of his

arrest and his subsequent debriefing. But while Villanueva cooperated with DEA

officials on these occasions, the record indicates that he did not “truthfully

                                          10
provide[] to the government all information and evidence,” 18 U.S.C. §

3553(f)(5), about a number of important facts relating to “the offense of

conviction and all relevant conduct.” USSG § 5C1.2, comment (n.3). First,

Villanueva was not truthful with law enforcement authorities regarding when he

arrived in El Paso or where he stayed prior to March 22. Villanueva initially told

DEA officers that he did not arrive in El Paso until March 19 and that he stayed

in El Paso with Pariente’s friends until March 22. ROA, Vol. 2 at 6. Villanueva

changed his story, however, when DEA officials informed him that they had

evidence that he had crossed from Mexico into El Paso on March 15 and 16 and

everyday from March 18 until March 22, the day of his arrest. Id., Vol. 1, Dkt.

#57 at 3.

      Second, Villanueva’s explanation for the money found in his possession—

more than $4,000 arranged in three separate bundles—is unconvincing.

Villanueva stated that he arranged the money this way for “no particular reason.”

Id., Vol. 2 at 9. The government claims Agent Perry would have testified at

sentencing that, based on how the money was arranged, the bundles were

“proceeds for acting as a drug courier on previous occasions.” Aple. Br. at 19.

Although the district court did not permit Agent Perry to testify, it could have

easily made the same inference on its own. Further, Villanueva’s claim that he

had more than $4,000 in cash to pay for arm surgery and to purchase vitamin

supplements is unconvincing because he told DEA officials that he agreed to

                                         11
smuggle the heroin to improve his dire financial situation. ROA, Vol. 2 at 5-6.

Given Villanueva’s alleged financial troubles, his claim that he went back and

forth several times from Mexico to El Paso prior to March 22, not to peddle

drugs, but “to go shopping,” is also hard to believe. Id., Vol. 2 at 8.

      Finally, Villanueva never provided a satisfactory explanation for the

illegible notes found in his possession. He claimed the documents were “just

notes” but never actually explained what the notes were for. ROA, Vol. 2 at 8.

The fact that Villanueva never provided an explanation for these notes

undermines his claim that he fully disclosed to the government all of the

information he possessed regarding “the offense of conviction and all relevant

conduct.” See USSG § 5C1.2, comment (n.3).

      B.     Testimony from Agent Perry

      Villanueva argues that the district court abused its discretion in refusing to

permit Agent Perry to testify at the sentencing hearing. According to Villanueva,

Perry’s testimony would have supported his request for a safety-valve sentence

because Perry would have testified that Villanueva (1) cooperated at the time of

his arrest; (2) gave truthful information regarding the transaction and the parties

involved; (3) assisted in Aispuro-Aristegui’s arrest; and (4) answered every

question asked of him in the debriefing interview. Aplt. Br., Ex. B at 3-4.

      Defendants must be given an “adequate opportunity to present relevant

information to the court,” but they do not have an automatic “right to introduce

                                          12
live testimony” at sentencing. United States v. Pena-Hermosillo, 522 F.3d 1108,

1116 (10th Cir. 2008). Nonetheless, this court has held that the representations of

counsel alone will “[r]arely ever be sufficient . . . to grant safety-valve request

over the objection of counsel.” United States v. Cervantes, 519 F.3d 1254, 1258

(10th Cir. 2008). Consequently, “[a]bsent a favorable recommendation from the

government, a defendant needs to put on evidence at the sentencing hearing to

meet his burden of showing that he truthfully and fully disclosed everything he

knew and to rebut the government claims to the contrary.” Id. Such evidence

will, “in all likelihood,” include “testimony from the defendant or a representative

of the government subject to cross examination.” Id.

      The better approach for the district court would have been to permit Agent

Perry to testify. Id. Nonetheless, we conclude that the district court did not

abuse its discretion because Perry’s testimony would not have changed the fact

that Villanueva was not entirely truthful with DEA agents. Even if the district

court accepted Agent Perry’s proffered testimony as true, the substance of this

proffered testimony was not disputed. Further, the fact remains that Villanueva

provided incomplete or misleading information regarding (1) when he crossed

between Mexico and El Paso; (2) his financial situation and whether a lack of

funds was the reason he agreed to smuggle drugs; (3) what the notes in question

addressed; and (4) why he was carrying over $4,000 arranged in three separate

bundles. Thus, while Agent Perry might have testified regarding to extent to


                                          13
which Villanueva cooperated with DEA agents, these facts were not disputed.

His testimony would not have established that Villanueva “truthfully provided to

the Government all information and evidence” regarding the crime of conviction,

as required by 18 U.S.C. § 3553(f)(5) (emphasis added).

                                        III

      The judgment of the district court is AFFIRMED. Villanueva’s unopposed

motion to seal the briefs is GRANTED.



                                              Entered for the Court



                                              Mary Beck Briscoe
                                              Chief Judge




                                        14
