11-659-cr
United States v. Peterson
                            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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 19th day of March, two thousand twelve.

PRESENT: RALPH K. WINTER,
                 REENA RAGGI,
                                 Circuit Judges,
                 JED S. RAKOFF,
                                 District Judge.*
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UNITED STATES OF AMERICA,
                                 Appellee,

                            v.                                              No. 11-659-cr

SCOTT PETERSON,
                                 Defendant-Appellant.
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FOR APPELLANT:                   Elizabeth D. Mann, Tepper Dardeck Levins & Gatos, LLP,
                                 Rutland, Vermont.

FOR APPELLEE:                    Heather E. Ross, Gregory L. Waples, Assistant United States
                                 Attorneys, for Tristram J. Coffin, United States Attorney for the
                                 District of Vermont, Burlington, Vermont.


           *
      Judge Jed S. Rakoff of the United States District Court for the Southern District of
New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the District of

Vermont (William K. Sessions, III, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on February 10, 2011, is AFFIRMED.

       Scott Peterson, who pleaded guilty to conspiracy to distribute 500 grams or more of

cocaine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), 846, appeals his statutory minimum 60-

month prison sentence, a variance from his 87-to-108-month Guidelines range. Specifically,

Peterson challenges the district court’s finding that he is not eligible for safety-valve relief

from the mandatory minimum sentence because he did not truthfully disclose all information

concerning his offense conduct to the government. See 18 U.S.C. § 3553(f)(5). We review

the district court’s finding for clear error, see United States v. Conde, 178 F.3d 616, 620 (2d

Cir. 1999), and we identify none here.

       To qualify for safety-valve relief, Peterson bore the burden of proving by a

preponderance of the evidence that he truthfully disclosed all information concerning his

offense conduct to the government. See 18 U.S.C. § 3553(f)(5); United States v. Jimenez,

451 F.3d 97, 103 (2d Cir. 2006). Following an evidentiary hearing, the district court found

that Peterson had not fully disclosed the identities of his cocaine suppliers. While Peterson

acknowledged only a single supplier, Khali Peters, Peters himself testified before a grand

jury that Peterson had other suppliers. Further, in 27 recorded conversations between

Peterson and drug purchaser Michael Riley subsequent to Peters’s arrest, Peterson referenced

alternative sources of supply and made plans for a large sale. Moreover, Riley and Greg Hill,

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another drug purchaser, testified at the hearing to differences in the packaging and type of

cocaine they obtained from Peterson, circumstances suggesting different suppliers.

       Peterson did not testify at the hearing or offer other evidence to the contrary.

Nevertheless, he argues that the district court clearly erred in refusing to credit his counsel’s

assertions that (1) the cocaine Peterson sold to Riley and Hill was, in every case, supplied by

Peters, who had different suppliers of his own; and (2) Peterson’s participation in planning

a future sale to Riley after Peters’s arrest was only a pretense for Peterson’s actual plan to

rob Riley. We are not persuaded. Assuming that the district court could have credited

counsel’s unsworn proffer as to Peterson’s knowledge and intent, see United States v.

Gomez, 580 F.3d 94, 105 (2d Cir. 2009) (“The sentencing court’s discretion is largely

unlimited either as to the kind of information it may consider, or the source from which it

may come.” (internal quotation marks omitted)), Peterson points us to no law that it was

compelled to do so, particularly on a matter where Peterson bore the burden and the hearing

evidence supported a contrary inference, see United States v. Conde, 178 F.3d at 620; see

generally Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011)

(“[W]here there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” (internal quotation marks omitted)). Under these

circumstances we identify no error in the district court’s finding that Peterson failed to carry

his burden of proving his eligibility for safety-valve relief.




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      We have considered Peterson’s remaining arguments on appeal and conclude that they

are without merit. Accordingly, the judgment is AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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