                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           October 25, 2005
                                   TENTH CIRCUIT
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 04-7100
                                                         (E.D. Oklahoma)
 LATRON NITCHELL JOLLY,                              (D.Ct. No. CR-03-107-P)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Latron Jolly pled guilty to possession with intent to distribute crack cocaine

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). He was sentenced to the


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
statutory minimum of 120 months imprisonment. Jolly appeals from his sentence,

arguing the district court committed reversible error when it denied his motion for

downward departure under the safety valve provision. See 18 U.S.C. § 3553(f),

USSG §5C1.2. 1 Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a), we AFFIRM.

                                I. Factual Background

       Jolly was indicted on four counts of possession with intent to distribute a

controlled substance (cocaine base) in violation of 21 U.S.C. § 841(a)(1). He

pled guilty to Count One, possession of 23.4 grams of cocaine base with intent to

distribute. Prior to sentencing, Jolly made a motion for downward departure

under the safety valve provision of USSG §5C1.2, and for an additional two-level

downward adjustment to his base offense level under USSG §2D1.1(b)(6). 2 The


       Because Jolly was sentenced pursuant to the 2003 edition of the United States
       1

Sentencing Guidelines Manual, all guideline citations refer to the 2003 edition, unless
noted otherwise.
       2
        USSG §2D1.1(b)(6) states, “[i]f the defendant meets the criteria set forth in
subdivisions (1)-(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory
Minimum Sentences in Certain Cases), decrease by 2 levels.”

       USSG §5C1.2(a) provides:

       (a) Except as provided in subsection (b), in the case of an offense under 21
       U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a
       sentence in accordance with the applicable guidelines without regard to any
       statutory minimum sentence, if the court finds that the defendant meets the
       criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below:


                                            -2-
government objected, asserting that Jolly failed to satisfy the fifth prong of USSG

§5C1.2(a), requiring him to disclose truthful information relevant to his offense.

The government wanted Jolly to identify his source, whom it believed to be the

target of an ongoing drug investigation. Although the government offered Jolly

time to comply with the provision, he insisted he could not provide any

information that was not already known to the government.

      Three weeks prior to sentencing, Jolly for the first time provided written



        (1) the defendant does not have more than 1 criminal history point, as
        determined under the sentencing guidelines before application of
        subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal
        History Category);

        (2) the defendant did not use violence or credible threats of violence or
        possess a firearm or other dangerous weapon (or induce another
        participant to do so) in connection with the offense;

        (3) the offense did not result in death or serious bodily injury to any
        person;

        (4) the defendant was not an organizer, leader, manager, or supervisor of
        others in the offense, as determined under the sentencing guidelines and
        was not engaged in a continuing criminal enterprise, as defined in 21
        U.S.C. § 848; and

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

                                            -3-
statement concerning his actions in which he identified a “John Smith” as his

supplier. Two days later, Jolly amended his written statement to note John Smith

had died the previous summer. During the original sentencing hearing on May

14, 2004, Jolly again asserted John Smith was his only supplier. He

acknowledged being acquainted with the target of the government’s investigation,

but denied any knowledge of that individual’s activities with respect to drug

trafficking.

      The government contested the veracity of Jolly’s information. Therefore,

during the May sentencing hearing, the government called Agent Curtis Collins

with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to testify

about the investigation. Agent Collins testified the ATF had targeted an

individual believed to be a drug dealer in the area. Jolly was not part of the

investigation until a confidential informant (CI) was unable to obtain narcotics

from the target because the target suspected the CI was an informant. The CI

named Jolly as a person who sold crack cocaine for the target. The ATF arranged

for the CI to purchase drugs from Jolly. The ATF hoped to “get” the target by

developing a case against Jolly.

      Agent Collins also testified about records of telephone calls between Jolly’s

phone and the target’s. He further stated that individuals other than the CI had

confirmed that the target was Jolly’s source. Finally, Agent Collins testified he


                                         -4-
had never heard of John Smith, nor received any information about him from the

law enforcement community.

          The district court was skeptical of Jolly’s testimony (and said so), but

continued the hearing and directed the probation officer to conduct a further

investigation. During the final sentencing hearing on September 10, 2004, the

court heard testimony from the government’s CI, who discussed his attempts to

purchase narcotics from the target, the many times he had observed Jolly buying

drugs from the target, and that the target was Jolly’s only source. The CI further

testified John Smith was a drug dealer who also obtained his drugs from the

target.

          Finding Jolly had not met his burden under the safety valve guideline, the

district court denied his motion for downward departure. Immediately prior to

imposing sentence, the district court gave Jolly one last opportunity to provide

relevant information to the government which would entitle him to safety valve

relief. When Jolly declined, the district court sentenced him to 120 months

imprisonment, the statutory mandatory minimum. 3




         Jolly pled guilty to possession of 23.4 grams of cocaine base with intent to
          3

distribute, an amount less than the 50 grams required to trigger the 120 month mandatory
minimum term set forth in 21 U.S.C. § 841(b)(1)(A)(iii). However, pursuant to USSG
§1B1.3(a)(2), Jolly was held accountable for the total quantity of cocaine base (82 grams)
he sold to the CI from June 2 through July 16, 2003.

                                             -5-
                               II. Standard of Review

      We review a district court’s interpretation of the sentencing guidelines de

novo. United States v. Patron-Montano, 223 F.3d 1184, 1188 (10th Cir. 2000).

We review its application of the Sentencing Guidelines’ safety valve provisions

for clear error. United States v. Virgen-Chavarin, 350 F.3d 1122, 1129 (10th Cir.

2003) (citation omitted). “A district court’s factual finding is clearly erroneous

only if it is without factual support in the record or if [this] court, after reviewing

all the evidence, is left with a definite and firm conviction that a mistake has been

made.” Patron-Montano, 223 F.3d at 1188 (quotations omitted). “We are

cognizant that the district court’s application of the safety valve is fact specific

and dependent on credibility determinations that cannot be replicated with the

same accuracy on appeal.” Virgen-Chavarin, 350 F.3d at 1129.

                              III. Safety Valve Relief

      It is undisputed that Jolly met the first four criteria of 18 U.S.C. § 3553(f)

and USSG §5C1.2. The only issue is whether he also complied with the fifth

criteria by “truthfully provid[ing] 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 . . . .” 18 U.S.C. § 3553(f)(5);

USSG §5C1.2(a)(5).

      We have consistently held that the defendant has the burden of proving, by



                                          -6-
a preponderance of the evidence, the applicability of the safety valve provision.

Patron-Montano, 223 F.3d at 1189; United States v. Verners, 103 F.3d 108, 110

(10th Cir. 1996). This includes the obligation of being truthful, United States v.

Acosta-Olivas, 71 F.3d 375, 379 (10th Cir. 1995), and providing “all information

and evidence . . . concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or plan . . . .” 18 U.S.C. § 3553(f)(5);

USSG §5C1.2(a)(5). As we noted in Acosta-Olivas,

    The phrase “all information and evidence” is obviously broad. The
    Application Notes to § 5C1.2 define “offense or offenses that were part of
    the same course of conduct or of a common scheme or plan” to mean “the
    offense of conviction and all relevant conduct.” USSG § 5C1.2, comment.
    (n. 3). “Relevant conduct” has in turn been defined to include “in the case
    of a jointly undertaken criminal activity . . . all reasonably foreseeable
    acts and omissions of others in furtherance of the jointly undertaken
    criminal activity.” USSG §1B1.3(a)(1)(B).

71 F.3d at 378.

      Jolly argues he met his burden simply by naming an individual, John Smith,

as his supplier. He further argues that because the government could not disprove

this information, the district court erred in refusing to apply the safety valve

provision.

      The district court was correct in interpreting the statute to require a

“significant nexus between the defendant’s conduct and those other offenses

about which [he] is obliged to provide information . . . .” (R. Vol. V at 47.) The

district court found Jolly was “required to provide truthful information relevant to

                                          -7-
his own course of conduct and his immediate chain of distribution, that is to say

from whom he bought and to whom he sold . . . .” (Id.) The district court further

found Jolly had not met this obligation, a determination clearly supported by the

record. Despite being given multiple opportunities to comply with the

requirements of §5C1.2(a)(5), 4 Jolly persisted in naming a deceased individual as

his supplier and providing minimal information about his own conduct.

       The probation officer was able to corroborate much of Jolly’s testimony

about John Smith’s existence, with whom and where he lived, and the fact of his

death. The record is clear. Jolly knew Smith; they were friends. What is not

clear, or even probable, from the record is Smith’s role as Jolly’s supplier.

Although Smith’s widow denied ever having observed him use or sell drugs, the

CI testified Smith too purchased his drugs from the target. Significantly, the CI

testified Jolly would not obtain drugs from anyone except the target.

       The credibility of a witness at sentencing is for the sentencing court, who is

the trier of fact, to analyze. Virgen-Chavarin, 350 F.3d at 1134 (citation

omitted). The district court was entitled to “draw reasonable inferences from the


       4
         The record reflects Jolly was approached once prior to indictment, at least once
after indictment, and was asked to cooperate with the government. He was also given
several opportunities during the two sentencing hearings to provide information; because
of the length of the mandatory minimum sentence, the district court beseeched Jolly to
provide “all of the information he had in regard to his source of these drugs.” (R. Vol. II
at 35.) That Jolly refused to take advantage of these opportunities to comply with the
requirements of the statute and guideline is not now reason for reversal.

                                            -8-
evidence.” United States v. Alvarado-Rivera, 412 F.3d 942, 948 (8th Cir. 2005)

(en banc). It could reasonably conclude Jolly was motivated not to incriminate

the target and the deceased Smith was a safe and convenient foil.

       We have noted, “[w]hen a defendant falsely identifies a participant in the

criminal activity, investigators are hindered or precluded from determining all

acts committed in furtherance of the jointly undertaken criminal activity.

Common sense, therefore, dictates that [Jolly’s] false identification of the source

of the [cocaine base] necessarily constitutes a lie about relevant conduct.”

Patron-Montano, 223 F.3d at 1190 (discussing USSG §3E1.1).

      The court’s determination that Jolly had not provided truthful information,

and thus did not meet one of the prerequisites for relief under the safety valve

provision, is clearly justified. AFFIRMED.



                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




                                         -9-
