                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0270n.06
                             Filed: April 8, 2005

                                           No. 04-5165

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
GERALD GILLIAM,                                   )   WESTERN DISTRICT OF KENTUCKY
                                                  )
       Defendant-Appellant.                       )




       Before: COLE and SUTTON, Circuit Judges; ZATKOFF, District Judge.*


       SUTTON, Circuit Judge. Gerald Gilliam challenges his 121-month sentence, which stems

from a guilty plea to one count of conspiracy to possess and distribute five or more kilograms of

cocaine and to one count of attempted possession of cocaine with intent to distribute. See 21 U.S.C.

§§ 846 & 841. Gilliam claims that the district court erred in refusing to apply a two-level reduction

under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, which apply when a non-leader defendant

“truthfully provide[s] 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.” Gilliam also claims the district court erred in refusing to apply another two-level reduction



       *
         The Honorable Lawrence P. Zatkoff, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
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United States v. Gilliam

for his purported minor role in the offense. See U.S.S.G. § 3B1.2(b). Seeing no merit to either

claim, we affirm the district court’s judgment.


                                                  I.


       On January 9, 2003, a California Highway Patrol officer stopped a car occupied by Roger

Moussa Bia and Mohamed Moussa Tamboura. Police searched the car and found seven kilograms

of cocaine in a backpack hidden in the trunk. Bia and Tamboura informed officers that they worked

for Gilliam, who had hired them to transport money from Louisville, Kentucky, to a man in

Glendale, California, and to return to Louisville with several kilograms of cocaine. Bia and

Tamboura reported making about 15 such trips under Gilliam’s direction, transporting five to ten

kilograms of cocaine per trip and receiving $5,000 to $6,000 per trip from Gilliam for their work.


       Drug Enforcement Agency officials transported Bia, Tamboura and the seized cocaine to

Kentucky, where the officials replaced the real cocaine with fake cocaine. In the presence of the

agents, Bia called Gilliam and arranged a meeting at a Waffle House restaurant in Louisville.

Gilliam arrived, Bia delivered the original backpack with the fake cocaine inside and Gilliam

returned to his vehicle, where he was arrested.


       On September 8, 2003, Gilliam pleaded guilty to one count of conspiracy to possess and

distribute five or more kilograms of cocaine and to one count of attempted possession of cocaine

with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841. In a signed statement, Gillian

admitted to the following: “I was involved in a conspiracy to distribute cocaine. I would be

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United States v. Gilliam

contacted to pick up money and deliver it to another person who then went and got the cocaine.

When he returned he called me and I picked up the drugs and delivered them to the person who had

given me the money. I did this approximately 5 times.” JA 60. (Bia and Tamboura, incidentally,

also were charged in the case, but those charges were dismissed after the district court ruled that the

evidence against them was inadmissible.)


       In the plea agreement, Gilliam and the government agreed that the charges carried a

minimum sentence of 120 months of imprisonment under 21 U.S.C. § 841(b)(1)(A). Plea

Agreement at 1. The plea agreement also provided as follows:


       10. At the time of sentencing, the United States will
       —recommend a sentence of imprisonment within the applicable Guideline Range,
       but not less than any mandatory minimum term of imprisonment required by law.
       ...
       —not oppose a reduction of 2 levels below the otherwise applicable Guideline for
       “acceptance of responsibility” as provided by § 3E1.1(a), provided [that defendant
       does not engage in certain specified future conduct].
       —[s]tipulate that the quantity and identity of the controlled substance which is
       attributable to the substantive and conspiratorial acts of the defendant is at least 15
       kilograms but less than 50 kilograms of cocaine.
       11. Both parties have independently reviewed the Sentencing Guidelines applicable
       in this case, and in their best judgment and belief, conclude as follows:
       A. The Applicable Offense Level should be calculated using at least 15 but less than
       50 kilograms of cocaine as the quantity and identity of the controlled substance
       attributable to the substantive and conspiratorial acts of the defendant. The parties
       agree that an aggravating role adjustment under Guideline § 3A1.1 as a leader
       organizer is not appropriate for the defendant under [the] facts of this case. The
       application of other adjustments to the base offense level are open for argument of
       the parties at sentencing.



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United States v. Gilliam

       B. The Criminal History of defendant shall be determined upon completion of the
       presentence investigation, pursuant to Fed. R. Crim. P. 32(c)(2).
       C. The foregoing statements of applicability of sections of the Sentencing
       Guidelines and the statement of facts are not binding upon the Court. The defendant
       understands the Court will independently calculate the Guidelines at sentencing, and
       defendant may not withdraw the plea of guilty solely because the Court does not
       agree with either the statement of facts or Sentencing Guideline application.
       ...
       20. Defendant agrees that the disposition provided for within this Agreement is fair,
       taking into account all aggravating and mitigating factors. Defendant states that he
       has informed the United States Attorney’s Office and the Probation Officer, either
       directly or through his attorney, of all mitigating factors. Defendant will not oppose
       imposition of a sentence incorporating the disposition provided for within this
       Agreement.


Plea Agreement at 4–5, 7. Under the plea agreement, then, Gilliam’s total offense level would be

32, which would yield a sentencing range of 121 to 151 months, given his uncontested level I

criminal history category—if, that is, the district court agreed with the recommendations in the plea

agreement.


       Contrary to these recommendations, however, the presentence investigation report

determined that 75 kilograms of cocaine was attributable to Gilliam’s acts and found that his

direction of Bia and Tamboura warranted a two-level leadership-role enhancement. After applying

a two-level reduction for acceptance of responsibility, the report calculated a total offense level of

36, yielding a sentencing range of 188 to 235 months.


       At the sentencing hearing, the district court accepted the stipulations in the plea agreement,

finding Gilliam responsible for between 15 and 50 kilograms, not 75 kilograms, and rejecting the


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United States v. Gilliam

presentence report’s recommendation for a leadership-role enhancement. At the same time, the

district court rejected Gilliam’s requests for (1) a two-level reduction under the safety-valve

provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, available if a non-leader defendant

“truthfully provide[s] 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,” and (2) a two-level reduction for his minor role in the conspiracy. Ultimately, then, the

district court’s rulings comported with the recommendations in the plea agreement, leading to a

sentencing range of 121 to 151 months, and the district court imposed concurrent sentences of 121

months on each count. On appeal, Gilliam challenges the district court’s conclusion that he was not

eligible for a two-level reduction under the safety-valve provision or a two-level reduction for

playing a minor role in the offense.


                                                 II.


       When a defendant challenges the district court’s application of the Federal Sentencing

Guidelines, we review the factual determinations for clear error and legal determinations de novo.

See United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005) (applying this standard after

Booker); United States v. Villegas, ___ F.3d ___, 2005 U.S. App. LEXIS 4517, at *8 (5th Cir. Mar.

17, 2005) (“We conclude that when a district court has imposed a sentence under the Guidelines,

this court continues after Booker to review the district court’s interpretation and application of the

Guidelines de novo.”).




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United States v. Gilliam

       We turn first to Gilliam’s safety-valve claim. The safety valve is available only to a non-

leader defendant who, among other requirements, either (1) “truthfully provide[s] 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” or (2) has no such information or

evidence. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Gilliam concedes that he had such information

and that he did not provide it to the government. As the district court found, that concession ends

the inquiry and ends Gilliam’s eligibility for the safety-valve reduction.


       Attempting to counter this conclusion, Gilliam argues that he refrained from providing the

information only because he feared repercussions by those who would be implicated by his

disclosures. But, as Gilliam further acknowledges, see Gilliam Br. at 7, fear of retaliation does not

relieve a defendant of the obligation to make a full disclosure in order to qualify for the safety-valve

reduction. See United States v. Roman-Zarate, 115 F.3d 778, 785 (10th Cir. 1997) (“If [the

defendant] chooses not to divulge names of his drug couriers or contacts because he suspects his

colleagues-in-crime may be less than supportive of his decision, he is entitled to remain silent; but,

he is no longer entitled to special treatment from the district court [under the safety-valve

provision].”); United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996) (“Defendants often have

reasons, such as loyalty to a confederate or fear of retribution, for not wanting to make full

disclosure. But full disclosure is the price that Congress has attached to relief under the statute, and

the burden remains on the defendant to prove his entitlement.”); cf. United States v. Adu, 82 F.3d

119, 124 (6th Cir. 1996) (holding that defendant has the burden of establishing eligibility for the



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United States v. Gilliam

safety-valve provision, which “clearly require[s] an affirmative act by the defendant truthfully

disclosing all the information he possesses that concerns his offense or related offenses”).


       In a variation on this argument, Gilliam persists that because defendants may satisfy their

obligation under the safety-valve provision by providing the relevant information to the government

while nonetheless refusing to testify in open court, see United States v. Carpenter, 142 F.3d 333,

336 (6th Cir. 1998), “[t]he government could have provided a safe haven for such disclosure and

made representations to the court that [Gilliam] cooperated under the safety valve statute without

disclosing the substance of that cooperation.” Gilliam Br. at 8. But Gilliam acknowledges that he

bears the burden of establishing his eligibility for a safety-valve reduction, and he makes no claim

that he ever expressed a willingness to disclose the information under any circumstances. In point

of fact, the district court continued Gilliam’s first sentencing hearing for the specific purpose of

giving him more time to comply with the safety-valve disclosure requirements. Gilliam thought

more about the option, and declined to exercise it. On this record, Gilliam’s clear and consistent

decision to withhold information precludes application of the safety-valve reduction, and the district

court accordingly did not err in making this determination.


       We turn next to Gilliam’s minor-role reduction claim under U.S.S.G. § 3B1.2(b). Gilliam


       has the burden of proving, by a preponderance of the evidence, that he is entitled to
       the reduction. Under § 3B1.2, a defendant can receive a four-level reduction for
       being a minimal participant or a two-level reduction for being a minor participant.
       A minimal participant is one who is “plainly among the least culpable of those
       involved in the conduct of a group,” and a minor participant is one who “is less



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       culpable than most other participants, but whose role could not be described as
       minimal.”


United States v. Solorio, 337 F.3d 580, 601–02 (6th Cir. 2003) (quoting U.S.S.G. § 3B1.2, cmt. nn.

4, 5) (other quotation marks and citations omitted). Claiming his role was minor, Gilliam argues that

he was merely a courier for his superiors in the conspiracy, in the same mode as Bia and Tamboura,

and that he never knew the amount of money or cocaine involved in the deliveries. The problem

with this argument, however, is that the evidence showed that Gilliam hired Bia and Tamboura,

directed their cross-country deliveries on several occasions and personally paid them for their work.

The district court indeed described it as a “close call” whether to enhance Gilliam’s sentence for a

leadership role, but ultimately accepted the plea agreement’s stipulation of no enhancement, stating,

“I don’t think he’s less than neutral. I think he’s either more of a leader or a neutral. I’ll go along

with neutral.” JA 45. Under these circumstances, the district court did not err in rejecting Gilliam’s

request for a minor-role reduction. See Solorio, 337 F.3d at 602 (finding no clear error in denying

minor-role reduction when supervisor directed others to transport extensive amounts of drugs, even

when defendant did not personally make the deliveries).


       Gilliam has not asked us to remand his case for resentencing in the aftermath of United

States v. Booker, 125 S. Ct. 738 (2005), and his plea agreement would appear to explain why. Under

the plea agreement, Gilliam agreed to be sentenced under the Guidelines. He agreed that for

purposes of determining the applicable Guidelines range, he would be responsible at a minimum for

between 15 and 50 kilograms of cocaine. He agreed that an enhancement for a leadership role was



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not applicable to his case and that a reduction for acceptance of responsibility could be pursued.

And while Gilliam retained discretion under the agreement to pursue other reductions under the

Guidelines, he agreed “not [to] withdraw the plea of guilty solely because the Court does not agree

with either the statement of facts or Sentencing Guideline application,” Plea Agreement at 5, and

“not [to] oppose imposition of a sentence incorporating the disposition provided for within this

Agreement,” Plea Agreement at 7. Just as Gilliam waived his rights to a trial by jury, Plea

Agreement at 2, he waived his right to be sentenced under any system other than the mandatory

Guidelines system in place at the time of his plea, a waiver that we have held is valid even after

Booker. See United States v. Bradley, 400 F.3d 459, 465 (6th Cir. 2005).


                                                III.


       For these reasons, we affirm the judgment of the district court.




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