                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 09-2974


                          UNITED STATES OF AMERICA

                                           v.

                                      LINH DAI
                                 a/k/a BROTHER BA

                                       Linh Dai,
                                                     Appellant


                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2-07-cr-00662-003)
                    District Judge: Honorable Mary A. McLaughlin


                     Submitted Under Third Circuit LAR 34.1 (a)
                                  July 12, 2010

        Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.

                                 (Filed: July 13, 2010)


                             OPINION OF THE COURT


RENDELL, Circuit Judge.

      Linh Dai pled guilty to one count of conspiracy to distribute and possess with

intent to distribute MDMA and methamphetamine in violation of 21 U.S.C. § 846. As a
result of his guilty plea, Dai faced a statutory mandatory minimum sentence of 120

months’ imprisonment. The District Court subsequently sentenced him to 135 months’

imprisonment and a five-year term of supervised release, and imposed a fine of $1000 and

a mandatory special assessment of $100. Dai contends that the District Court erred in

denying him a safety valve reduction. We disagree, and will affirm the judgment of the

District Court.1

       We review the District Court’s factual determinations as to safety valve eligibility

for clear error, and apply plenary review to its legal determinations and application of the

safety valve provision. United States v. Wilson, 106 F.3d 1140, 1142-43 (3d Cir. 1997).

       The safety valve provision, codified at 18 U.S.C. § 3553(f), allows for potential

relief from statutory mandatory minimum sentences when five enumerated criteria are

met. The last of the five requirements, which is the only one at issue here,2 states:

       [N]ot 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


       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
       2
         There is no dispute that Dai met the first four requirements: (1) he did not have
more than one criminal history point; (2) he did not use violence or threats of violence or
possess (or induce someone else to possess) a dangerous weapon in connection with the
offense; (3) the offense did not result in death or serious bodily injury to anyone; and (4)
according to the District Court’s ruling, he was not an organizer, leader, manager, or
supervisor of others in the offense, and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. § 848.

                                              2
       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)(5).

       Dai’s sole argument that he has satisfied the fifth criterion is that the District

Court’s finding that he was not “truthful and complete” cannot be reconciled with its

determination that he accepted responsibility for purposes of U.S.S.G. § 3E1.1. However,

we have expressly rejected the claim that acceptance of responsibility alone necessarily

means that a defendant meets the fifth criterion of safety valve eligibility. In United

States v. Sabir, we held that “the acceptance of responsibility provisions in the guidelines

plainly do not subsume all of a defendant’s responsibilities under the safety valve

provisions.” 117 F.3d 750, 752 (3d Cir. 1997). We adopted the reasoning of the Court of

Appeals for the Seventh Circuit, which held that the safety valve requires the defendant to

provide information about all offenses that were part of the same course of conduct,

whereas acceptance of responsibility for purposes of the Guidelines requires the

defendant to admit responsibility only for the conduct that formed the offense of

conviction. Id. at 752-53 (citing United States v. Arrington, 73 F.3d 144, 149 (7th Cir.

1996)).

       Here, Dai has not shown that he provided to the Government all information and

evidence he had regarding the relevant offenses. See 18 U.S.C. § 3553(f)(5). He

acknowledged that he was responsible for a single drug transaction, but disputed evidence

of his extensive involvement in a drug conspiracy involving numerous sales of MDMA

                                               3
and marijuana. Nor did he disclose information about others involved in the conspiracy

or about other offenses that were part of the conspiracy. Accordingly, the District Court

did not err in concluding that he is not eligible for the safety valve reduction, and we will

affirm the Court’s judgment.




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