     09-3625-cr
     United States v. Marte



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18 th day of January, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RICHARD C. WESLEY,
 9                DENNY CHIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               09-3625-cr
17
18       CESAR MARTE,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21       FOR APPELLANT:              Paul DerOhannesian, Albany, New
22                                   York.
23
24       FOR APPELLEE:                          Terrence M. Kelly, Elizabeth S.
25                                              Riker, Assistant United States
26                                              Attorneys, Of Counsel, for
27                                              Richard S. Hartunian, United
28                                              States Attorney for the Northern
 1                              District of New York, Syracuse,
 2                              New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Northern District of New York (Sharpe, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Cesar Marte pleaded guilty, without a plea agreement,
12   to one count of possessing with intent to distribute more
13   than 500 grams of cocaine. See 21 U.S.C. § 841(a),
14   (b)(1)(B). On appeal, Marte challenges his sentence,
15   arguing that the district court erred in finding him
16   ineligible for safety-valve relief. We assume the parties’
17   familiarity with the underlying facts, the procedural
18   history, and the issues presented for review.
19
20        The defendant bears the burden of proving eligibility
21   for safety-valve relief. See 18 U.S.C. § 3553(f); U.S.
22   Sentencing Guidelines Manual § 5C1.2(a); United States v.
23   Jimenez, 451 F.3d 97, 102 (2d Cir. 2006) (per curiam). To
24   do so, the defendant must prove, inter alia, that “not later
25   than the time of the sentencing hearing,” he “truthfully
26   provided to the Government all information and evidence [he]
27   has concerning the offense or offenses that were part of the
28   same course of conduct or of a common scheme or plan.” 18
29   U.S.C. § 3553(f); see also Jimenez, 451 F.3d at 102-03.
30
31        The district court found Marte ineligible because Marte
32   failed to persuade the court that he had truthfully and
33   fully disclosed the extent of the involvement of another
34   individual in the drug transaction. On the record before
35   us, we cannot say that the district court committed clear
36   error in finding Marte ineligible for safety-valve relief. 1
37   See United States v. Nuzzo, 385 F.3d 109, 118-19 & n.25 (2d
38   Cir. 2004) (“While a district court may find the [truthful
39   proffer] criterion of the safety valve satisfied despite


         1
           The district court cited inconsistencies between
     Marte’s statement upon his arrest and his testimony at the
     evidentiary hearing, discrepancies between Marte’s
     statements and the video-taped drug transaction, and Marte’s
     disavowal of a portion of a letter written to the government
     by defense counsel.

                                  2
 1   prior lies and omissions, neither a district court nor this
 2   Court is precluded from considering those prior lies and
 3   omissions in determining whether the defendant has met his
 4   burden of proving that the information provided as of
 5   sentencing is complete and truthful.”); United States v.
 6   Conde, 178 F.3d 616, 620 (2d Cir. 1999).
 7
 8        Marte contends that after he represented that he had
 9   come forward with all the relevant information within his
10   possession, the burden shifted to the government to show why
11   a safety valve reduction was not justified. Such a shift in
12   burden is not supported by any precedent in our Circuit.
13   “As a rule, a defendant bears the burden of proving that he
14   has met all five safety valve criteria to qualify for
15   sentencing pursuant to 18 U.S.C. § 3553(f) rather than a
16   mandatory statutory minimum.” United States v. Holguin, 436
17   F.3d 111, 119 (2d Cir. 2006) (internal quotation marks and
18   alterations omitted).
19
20        Accordingly, having reviewed all of Marte’s arguments
21   on appeal, we hereby AFFIRM the judgment of the district
22   court.
23
24
25                              FOR THE COURT:
26                              CATHERINE O’HAGAN WOLFE, CLERK
27
28




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