                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             JULY 23, 2008
                             No. 07-14144
                                                           THOMAS K. KAHN
                         Non-Argument Calendar
                                                               CLERK
                       ________________________

                    D. C. Docket No. 07-60088-CR-JIC

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

CHAVIS YA'MON CREWS,

                                                     Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (July 23, 2008)

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Chavis Ya’mon Crews appeals his 120-month sentence for possessing with

intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1). Crews argues that the district court clearly erred in denying safety-

valve relief because he satisfied the criteria set out in U.S.S.G. § 5C1.2. For the

reasons set forth below, we affirm.

                                          I.

      Crews was arrested and charged after a police officer, responding to a

complaint regarding a car driven by Crews and indicating that Crews seemed to be

involved in a domestic dispute, searched Crews’s person and car, and discovered

three bags of marijuana and $3,701 in cash on Crews’s person, and 133.9 grams of

crack cocaine and $35,892 in cash, separated into $1,000 bundles, in Crews’s car.

Crews admitted ownership of the drugs and money, claiming that he had obtained

the crack cocaine earlier in the day and that the money represented his life’s

savings.

      In a later interview with authorities, Crews claimed that he saved the money

by saving $50 a day from the $100 a day he earned working as a roofer. He had

received a call the morning of his arrest to travel to a nearby town to obtain crack

cocaine and simply put the money in question in his car before leaving. On his

way home, he received a call from his girlfriend, which prompted him to travel to



                                           2
the location of the ultimate disturbance and his arrest.1

       At Crews’s sentencing hearing, the government argued that Crews was not

eligible for a two-level safety-valve reduction for providing the government with a

truthful and complete account of his offense, pursuant to § 2D1.1(b)(9), because

Crews’s claim that the money found in his car represented his life’s savings was

not truthful. Specifically, the government took issue with Crews’s decision to take

$40,000 of his life savings with him to obtain a relatively small amount of crack

cocaine. In response, Crews testified as follows.

       He began saving the money when he was a teenager and was now 26 years

old. The roofing company that he worked for paid him $100 in cash per day.

Crews tried to save $50 a day, and, as soon as Crews reached $1,000, he wrapped

those bills in a rubber band and set them aside. He kept the individual “stacks” in a

plastic bag. Crews never declared this money as income. He intended the money

for a “rainy day[]” and did not keep it in a bank account because he was afraid of

the Internal Revenue Service. On the day of his arrest, he took the approximately

$40,000 with him to purchase a relatively small amount of crack, which ultimately

cost only $2,700, for “no particular reason, like [he] just had it on [him] at the



       1
          A transcript of, or notes from, this interview was not in the record. Rather, the
government proffered these statements at Crews’s sentencing hearing, and Crews did not object
to the facts recited by the government.

                                              3
time. . . [and] brought it out [of] the house that morning.” It “[m]aybe [was] a

showboat issue.” While the approximately $3,000 seized from his person was part

of his “rainy day” stash, he had separated it from the rest and put it in his pocket

that morning for “no particular reason” and to “add it up.” The money that Crews

used to purchase the crack cocaine never was a part of this stash. This money was

earned from selling drugs.

      On cross-examination, Crews testified that he had been selling crack cocaine

for approximately three years, but only when “situations [got] rough.” Generally,

he purchased five ounces of crack cocaine, broke it down into individual pieces,

and sold the pieces for a total income of $800. He had been working for his

current roofing company for approximately three years. He worked between five

and six days a week. Before that, he worked “little jobs” and at a dog track. When

he took the money with him to purchase crack cocaine, he was not in danger of

being robbed of the money because he did not intend to show anybody that he had

it. On redirect, Crews testified that part of the stash, or approximately $15,000,

probably was “drug related money.”

      The district court denied the safety-valve reduction. The court found that

Crews’s testimony lacked credibility and stated, “There’s no doubt in my mind that

that money came from drugs. I can’t be any clearer than that.” The district court



                                           4
then noted that the statutory minimum term of imprisonment for Crews’s offense

was 10 years, pursuant to 21 U.S.C. § 841(b)(1)(A), and sentenced Crews

accordingly.

                                            II.

       When reviewing the district court’s safety-valve decision, we review factual

determinations for clear error and legal conclusions de novo. United States v.

Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006). We have held that, in conducting

our review, we “shall give due regard to the opportunity of the sentencing court to

judge the credibility of the witnesses.” United States v. Glinton, 154 F.3d 1245,

1258-59 (11th Cir.1998).

       Pursuant to U.S.S.G. § 5C1.2(a), the district court “shall impose a sentence

in accordance with the applicable guidelines without regard to any statutory

minimum sentence” if it finds that the defendant satisfies the “safety-valve”

criteria. Likewise, pursuant to § 2D1.1(b)(9), the district court should apply a two-

level reduction to a defendant’s base offense level if the defendant meets these

criteria. These criteria require in part that,

       not 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 Government is already aware of the information

                                             5
       shall not preclude a determination by the court that the defendant has
       complied with this requirement.

U.S.S.G. § 5C1.2(a)(5). The defendant bears the burden of proving his satisfaction

of this criterion and ultimate eligibility for safety-valve relief. Milkintas, 470 F.3d

at 1345.2

                                                III.

       The district court did not clearly err in denying safety-valve sentencing. See

Milkintas, 470 F.3d at 1343. While Crews insisted that the money seized from his

car represented his life’s savings, he failed to provide a reason why he took the

money with him to obtain crack cocaine. Although he initially stated that he took

the money for the purposes of “showboat[ing],” he later stated that he did not

intend to show it to anyone. Likewise, although he initially insisted that the money

was not derived from drug sales, he later stated that perhaps $15,000 of it was

drug-related money.3 The inconsistencies of Crews stories, coupled with his too-



       2
          Although the discussion at sentencing focused on the two-level reduction afforded
under § 2D1.1(b)(9), we also have considered the relief from the statutory minimum afforded
under § 5C1.2. Because the statutory minimum of 120 months’ imprisonment exceeds the
greatest term of Crews’s guideline imprisonment range, or 87 and 108 months, the only benefit
safety-valve sentencing could confer on Crews is that afforded by § 5C1.2.
       3
          For the first time on appeal, Crews argues that the record made clear that he carried his
life savings with him because he did not feel comfortable leaving the money at home with his
girlfriend, with whom he was feuding. Aside from the lateness of this claim, it is not supported
by the record. Crews told authorities that he decided to take the money with him in the morning
and only later received a call from his girlfriend and became entangled in a dispute with her.

                                                 6
late admission that a portion of the rainy day stash derived from drug sales,

provided ample reason for the district court’s doubt. Given this, and the deference

due the district court’s finding on Crews’s credibility, we affirm the district court’s

denial of safety-valve sentencing. See Glinton, 154 F.3d at 1258-59.4

        AFFIRMED.




        4
          On appeal, Crews briefly mentions that he is eligible for re-sentencing pursuant to Amendment
706 of November 2007, by which the Sentencing Commission approved a two-level reduction for crack-
cocaine sentences, which was made retroactive in December 2007 as March 3, 2008. We decline to
address this issue in the instant appeal because Crews may move for relief under Amendment 706 by
way of a motion under 18 U.S.C. § 3582(c)(2).

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