                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3837
                         ___________________________

                           Juan Carlos Arteaga Talavera

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: September 22, 2016
                             Filed: November 2, 2016
                                  ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

      A jury convicted Juan Carlos Arteaga Talavera of conspiracy to distribute
methamphetamine, seven counts of distributing methamphetamine, and one count of
possession with intent to distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)-(C), and 846. Arteaga appealed his 292-month sentence;
we affirmed. United States v. Arteaga Talavera, No. 12-3802 (8th Cir. July 2, 2013)
(unpublished). In 2014, Arteaga filed this motion for post-conviction relief under 28
U.S.C. § 2255, alleging that he would have entered into a plea agreement with the
government and received a lesser sentence had trial counsel provided proper
information and advice prior to trial. After an evidentiary hearing at which Arteaga
and trial counsel William Eddy testified, Arteaga focused the claim on his contention
that Eddy provided ineffective assistance by failing to properly explain Arteaga’s
opportunity to obtain “safety valve” sentencing relief, and that, with an accurate
explanation, he would have pleaded guilty and received a lesser sentence.1

       To prevail on this claim of ineffective assistance of trial counsel, Arteaga must
“show that counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The
district court2 denied relief, concluding that Arteaga failed to establish that counsel’s
alleged ineffective assistance resulted in Strickland prejudice because Arteaga “failed
to establish that he would have truthfully provided the government with all the
information and evidence he had regarding the offense” either before or after trial, as
18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5) require.3 Arteaga appealed. The


      1
       To qualify for safety valve relief, a defendant must prove (1) he “does not have
more than 1 criminal history point;” (2) he “did not use violence or credible threats
of violence . . . in connection with the offense;” (3) “the offense did not result in
death or serious bodily injury to any person;” (4) he “was not an organizer, leader,
manager, or supervisor of others in the offense;” and (5) he “has truthfully provided
to the Government all information and evidence [he] has concerning the offense or
offenses. . . .” 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a).
      2
       The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa, adopting the Report and Recommendation of the
Honorable Ross A. Walters, United States Magistrate Judge for the Southern District
of Iowa.
      3
        Having determined that Arteaga failed to establish prejudice, the district court
did not need to decide whether counsel’s performance was deficient. Strickland, 466
U.S. at 697.

                                          -2-
district court granted a certificate of appealability limited to whether Arteaga “was
prejudiced by trial counsel’s deficient advice regarding obtaining a sentence . . . under
the so-called ‘safety valve.’” See 28 U.S.C. §§ 2253(c); 2255(d). Reviewing the
district court’s safety valve findings for clear error, United States v. Alvarado-Rivera,
412 F.3d 942, 947 (8th Cir. 2005) (en banc), cert. denied, 546 U.S. 1121 (2006), and
the ultimate issue of Strickland prejudice de novo, Rodela-Aguilar v. United States,
596 F.3d 457, 461 (8th Cir. 2010), we affirm.

       The hearing record included a written Plea Agreement the Government
proposed to Arteaga in February 2012, six months before trial. The Agreement
provided that he would plead guilty to the conspiracy count, and the government
would dismiss the eight other counts, resulting in a mandatory minimum sentence of
ten years and a maximum sentence of life in prison. The proposed Agreement recited
a factual basis for the guilty plea and stipulated that Arteaga was responsible for at
least 1,498 grams of actual methamphetamine and that neither party recommended
a sentencing adjustment for his role in the offense. In a cover letter to defense
counsel Eddy, the prosecutor stated her belief that the Agreement would result in an
advisory guidelines sentencing range of 135 to 168 months in prison or, if Arteaga
“is interested in proffering” and the safety valve applies, 108 to 135 months.

       At the hearing, Eddy testified that he brought the proposed Plea Agreement to
Arteaga, and a translator read it to him in Spanish. They discussed the Plea
Agreement, and Eddy wrote Arteaga, strongly urging him to accept it. Eddy reviewed
with Arteaga the evidence the government had produced in discovery, stated his
belief that Arteaga would be convicted, and warned that the ten-year mandatory
minimum sentence “would likely double or more” if Arteaga rejected the Plea
Agreement and was convicted after a trial. Despite this advice, Arteaga maintained
his innocence, refused to accept the Plea Agreement or cooperate with the
government, and stated he would proceed to trial. Eddy’s meeting notes corroborated
this testimony. The record also reflects that, three days before trial, the court held a

                                          -3-
hearing to ensure that Arteaga understood the government’s plea offer. At that
hearing, Arteaga confirmed that Eddy had relayed the offered Agreement, that
Arteaga understood its terms, and that he rejected the offer and would proceed to trial.

        During direct examination, Eddy testified that he advised Arteaga that he could
get a sentence below the ten-year mandatory minimum only if he provided substantial
assistance to the prosecution. On cross exam, Arteaga’s counsel focused on safety
valve relief, which entitles an eligible defendant to a guidelines range sentence
“without regard to any statutory minimum sentence.” 18 U.S.C. § 3553(f). Eddy
testified it was his understanding at the time that, to satisfy the requirement of
§ 3553(f)(5), a safety valve proffer “has to reach the level of a substantial assistance-
type cooperation,” which includes testifying against co-defendants. Based on this
testimony, and Arteaga’s testimony that he refused the government’s Plea Agreement
because he did not want to cooperate, Arteaga argues that Eddy’s mistaken advice
that a safety valve proffer required full cooperation with the government, rather than
merely truthful information about Arteaga’s offense, was ineffective assistance that
prejudiced Arteaga by causing him to reject the plea offer and proceed to trial.

       “When the defendant’s claim is that counsel misadvised him of the relative
advantages of pleading guilty rather than proceeding to trial, in order to show
[Strickland] prejudice, the defendant must show that, but for his counsel’s advice, he
would have accepted the plea.” Sanders v. United States, 341 F.3d 720, 722 (8th Cir.
2003), cert. denied, 540 U.S. 1199 (2004). Here, Arteaga introduced no evidence
meeting this rigorous standard. He steadfastly maintained his innocence before and
during trial, and at sentencing. At the § 2255 hearing, as the district court found, he
did not “testify that had he been adequately advised about the benefits of the safety
valve he would have accepted the plea agreement.” “A defendant who maintains his
innocence at all the stages of his criminal prosecution and shows no indication that
he would be willing to admit his guilt undermines his later § 2255 claim that he
would have pleaded guilty if only he had received better advice from his lawyer.”

                                          -4-
Sanders, 341 F.3d at 723. Thus, as in Hyles v. United States, “[n]othing in the record
indicates [Arteaga] wanted to accept the plea offer and would have acknowledged
[his] guilt” if properly advised about the safety valve. 754 F.3d 530, 535 (8th Cir.),
cert. denied, 135 S. Ct. 392 (2014).

       Moreover, to show prejudice, a defendant who asserts that counsel was
constitutionally ineffective for erroneous advice about the safety valve has “the
burden to show affirmatively that [he has] satisfied each requirement for the safety
valve, including whether truthful information and evidence have been given to the
government.” Alvarado-Rivera, 412 F.3d at 947. A defendant merely stating that he
would have provided truthful information is not sufficient. See Deltoro-Aguilera v.
United States, 625 F.3d 434, 438 (8th Cir. 2010). Here, as the district court found,
Arteaga “did not testify as to what information he would have been willing to disclose
at a [safety valve] proffer.” Indeed, he did not even testify that he would have been
willing to proffer at all.

       A truthful proffer would have required Arteaga to acknowledge his role in the
conspiracy offense and provide information about his co-conspirators. See United
States v. Sanchez, 475 F.3d 978, 981 (8th Cir. 2007). He testified at the § 2255
hearing that he repeatedly told Eddy he was not guilty, did not know his co-
defendants or knew them only casually, and would not cooperate against them. On
this record, the district court did not clearly err in finding no showing that Arteaga
would have provided the government all the information he had regarding the
extensive conspiracy offense. Thus, Arteaga failed to establish Strickland prejudice
regarding the claim that ineffective assistance caused him not to plead guilty.

       Finally, Arteaga argues on appeal that, even if he would not have pleaded
guilty, Eddy still had a duty to pursue the safety valve after the jury verdict because
“safety valve relief is available even to a defendant that foregoes a plea of guilty and



                                          -5-
is found guilty by a jury.”4 While the legal proposition is sound, Arteaga’s § 2255
motion and the evidence introduced at the § 2255 evidentiary hearing focused entirely
on the claim that he would have pleaded guilty before trial if properly advised about
the safety valve. Thus, neither Arteaga nor counsel Eddy testified to whether the
safety valve was discussed at or before sentencing, and whether Arteaga would have
been willing to attempt a qualifying proffer at that time. This belated claim fails for
lack of proof.

       Moreover, the claim is inherently implausible on this record. There is not a
shred of evidence that Arteaga would have been willing before sentencing to
truthfully provide all information he had about a conspiracy offense he denied
committing. In addition, at sentencing, the district court imposed a two-level increase
for obstruction of justice based on Arteaga’s pretrial threat of physical harm directed
at a co-defendant who testified for the government at Arteaga’s trial. A defendant
who receives an obstruction of justice enhancement for threatening a cooperating
witness is not eligible for safety valve relief because he has used “violence or credible
threats of violence . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2);
United States v. Sandoval-Sianuqui, 632 F.3d 438, 443 (8th Cir.), cert. denied, 132
S. Ct. 240 (2011).

      The Order of the district court dated October 14, 2015 is affirmed.
                      ______________________________




      4
       By qualifying for safety valve relief at sentencing, Arteaga would have
decreased his base offense level by two levels. See U.S.S.G. § 2D1.1(b)(16) (2012).

                                          -6-
