                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 13, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-1044
          v.                                           (D. Colorado)
 DIONISIO SALGADO-MEZA,                     (D.C. No. 1:10-CR-00614-MSK-3)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit 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 ordered submitted without oral argument.

      Defendant and appellant, Dionisio Salgado-Meza, appeals the district

court’s refusal to apply a “safety valve” reduction to the sentence imposed on him


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
following his guilty plea. Finding that the court did not err in denying him safety

valve relief, we affirm his sentence.



                                 BACKGROUND

      Salgado-Meza pled guilty to one count of conspiracy to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846(a)(1) and

(b)(1)(A)(ii)(II), and one count of money laundering, in violation of 18 U.S.C.

§ 1956(a)(1)(B)(ii). He was sentenced to 135 months’ imprisonment, followed by

five years of supervised release. In the course of imposing that sentence, the

district court declined to apply the safety valve provisions of 18 U.S.C. § 3553(f)

and United States Sentencing Commission, Guidelines Manual (“USSG”), §5C1.2,

which would have permitted a lower sentence. Salgado-Meza appeals, arguing

the court erred in not finding him eligible for a safety valve reduction.



                                   DISCUSSION

      Under the safety valve provisions, 18 U.S.C. § 3553(f) and USSG §5C1.2,

district courts must sentence certain first-time drug offenders in accordance with

the applicable Guidelines “without regard to any statutory minimum sentence.”

18 U.S.C. § 3553(f); USSG §5C1.2(a). A defendant must meet five criteria,

however, in order to qualify for the safety valve. The defendant has the burden to

prove by a preponderance of the evidence that he meets each of those

                                         -2-
requirements. United States v. Altamirano-Quintero, 511 F.3d 1087, 1098 (10th

Cir. 2007).

      There is no dispute in this case that Salgado-Meza 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). The only requirement at issue in this case is the fifth one, which

provides that 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 Government is already aware of the information shall not preclude a

determination by the court that the defendant has complied with this

requirement.” Id. § 3553(f)(5); USSG §5C1.2(a)(5).

      Salgado-Meza concedes it is “undisputed that, at no point prior to

sentencing, did [he] seek to debrief with, or make any effort to proffer statements

to, the government concerning the allegations set forth in the indictment.”

Appellant’s Br. at 4. He nonetheless objected to the United States Probation

Office’s presentence report’s recommendation that he not receive safety valve

                                         -3-
relief because he claimed he met the fifth requirement on the ground that the

government knew everything he knew about his criminal activities. More

specifically, he argued that the government had been investigating the conspiracy

to which Salgado-Meza pled guilty for several years, including tapping his phone

conversations, and therefore was already aware of any information Salgado-Meza

might be able to provide. The district court rejected this argument, stating that

“because [Salgado-Meza] has not made the predicate offer either in writing or

orally in accordance with subsection (f)(5)[,] [he] is not entitled to the safety

valve reduction.” Tr. of Sentencing Hr’g at 8, R. Vol. 1 at 124.

      Salgado-Meza renews his argument on appeal, arguing that his case is

unusual and he is entitled to safety valve relief even though he did not proffer any

information to the government, either orally or in writing, because he knew

nothing that the government did not already know.

      “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. A district court’s legal

interpretation guiding its application of the safety-valve provision is reviewed de

novo.” United States v. Cervantes, 519 F.3d 1254, 1256 (10th Cir. 2008). In

conducting clear error review of factual determinations, we have stated that “we

are cognizant that the district court’s application of the safety valve is fact

specific and dependent on credibility determinations that cannot be replicated

                                          -4-
with the same accuracy on appeal.” Altamirano-Quintero, 511 F.3d at 1098

(quoting United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006)).

      As we have previously noted, the safety valve statute and guideline require

the disclosure of “all information and evidence . . . 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); USSG §5C1.2(a)(5). “The phrase ‘all information

and evidence’ is obviously broad.” United States v. Acosta-Olivas, 71 F.3d 375,

378 (10th Cir. 1995). When the defendant’s offense involves a conspiracy, as

does Salgado-Meza’s, “we require the defendant to disclose not only everything

he knows about his own actions, but also everything he knows about his co-

conspirators.” Altamarino-Quintero, 511 F.3d at 1098 (quoting Stephenson, 452

F.3d at 1180-81). Furthermore, “the section . . . requires that a defendant

truthfully tell all he knows to the government, regardless of whether this

information is useful to the government.” Acosta-Olivas, 71 F.3d at 379. Thus,

the fact that the government already knows what a defendant discloses is

irrelevant.

      The safety valve provisions do not, however, “prescribe how the defendant

must convey this information to the Government.” Altamarino-Quintero, 511

F.3d at 1092 n.7. Indeed, “[t]here may be many ways that a defendant could

provide the Government with sufficient information to satisfy § 3553(f)(5).” Id.

We have nonetheless stated that the “plain language” of the safety valve

                                         -5-
provisions “unequivocally requires ‘an affirmative act by the defendant truthfully

disclosing all the information he possesses that concerns his offense or related

offenses.’” Stephenson, 452 F.3d at 1182 (quoting United States v. Adu, 82 F.3d

119, 124 (6th Cir. 1996)). The requirement that a defendant “provide”

information insures that the purpose of the safety valve is served: “to benefit

‘only those defendants who truly cooperate[.]’” Id. (quoting United States v.

Schreiber, 191 F.3d 103, 106 (2d Cir. 1999)).

      In this case, Salgado-Meza admittedly did nothing other than communicate,

in some form, to the government that the government already knew everything he

knew about the conspiracy. That is not the kind of affirmative act required to

satisfy his burden to prove that he met the safety valve requirements.

      Furthermore, even were we to accept that Salgado-Meza somehow

adequately “provided” the government with all he knew, it is impossible to assess

the truthfulness of his claim that the government already knew what he knew. As

the district court observed in Salgado-Meza’s sentencing proceedings:

      [I]t’s virtually impossible for someone to prove a negative. And the
      interpretation given by the defense here would offer to the defendant
      the opportunity to engage in an ultimately futile act of trying to
      prove a negative that, indeed, he did not have any information that
      the Government [did not] already ha[ve]. The predicate of that is
      that he would have to know both what the Government knew and
      what the Government did not know.




                                         -6-
Tr. of Sentencing Hr’g at 28, R. Vol. 2 at 31. 1

      Additionally, the very language of the safety valve provisions states that it

does not matter if the government already knows what a defendant provides or

discloses. That knowledge does not undermine the obligation to provide any and

all information known by the defendant. So, Salgado-Meza cannot excuse his

failure to provide information because, in his view, his information will not aid

the government.

      Finally, the record reveals that there were, in fact, clear gaps in the

government’s information and knowledge as to aspects of the conspiracy, which

Salgado-Meza could have filled. In the “Rule 11(c)(1)(B) Plea Agreement and

Stipulation of Facts,” the parties stipulated that the government could prove that

Salgado-Meza “conspired with [named co-conspirators] and others, both known

and unknown to the Government, to distribute and possess with the intent to

distribute cocaine.” Plea Agreement at ¶ 16, R. Vol. 1 at 48 (emphasis added).

They further stipulated that “agents intercepted numerous telephone calls between

the defendant, [a named co-conspirator], and unidentified Mexican sources of

supply.” Id. (emphasis added). It defies belief to suggest that Salgado-Meza

could not have shed light on those obvious unknown and unidentified individuals.

      1
       The quotation above actually states, in line five: “he did not have any
information that the Government already had.” That phrase is somewhat
confusing, so we have altered it to more clearly state what is clearly the argument
addressed by both parties–i.e., whether Salgado-Meza must disclose information
which he claims the government already has.

                                          -7-
      In sum, we agree with the district court that Salgado-Meza failed to meet

his burden to prove that he was eligible for safety valve relief.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s refusal to reduce

Salgado-Meza’s sentence under the safety valve provisions.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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