                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                 No. 08-11625                 ELEVENTH CIRCUIT
                                                                 MARCH 17, 2009
                             Non-Argument Calendar
                                                               THOMAS K. KAHN
                           ________________________
                                                                    CLERK

                    D. C. Docket No. 07-00260-CR-T-24MSS

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

ELIAS CRUZ,

                                                             Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                               (March 17, 2009)

Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

      Elias Cruz appeals his 60-month sentence imposed following his guilty plea

for conspiracy to manufacture and possess with intent to distribute 100 or more
marijuana plants and manufacturing and possessing with intent to distribute 100 or

more marijuana plants. Because Cruz did not meet his burden to establish the five

applicable criteria, the district court properly denied a reduction under the safety-

valve provision pursuant to U.S.S.G. § 5C1.2.

      Cruz was indicted for one count of conspiracy to manufacture and possess

with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C.

§ 846, and one count of manufacturing and possession with intent to distribute 100

or more marijuana plants, in violation of 21 U.S.C. § 841. In his guilty plea, Cruz

admitted that, when police searched the home in which he was present there were

188 marijuana plants as well as items used to grow and cultivate the plants, and

that he had agreed to grow and distribute the marijuana.

      By statute, the mandatory minimum was 60 months’ imprisonment. 21

U.S.C. § 841(b)(1)(B)(vii). In preparing the presentence investigation report, the

probation officer concluded that Cruz was ineligible for the safety-valve provision,

which would have permitted the court to sentence Cruz below the mandatory

minimum, because Cruz did not provide complete and truthful information in his

debriefing.1 Cruz objected to the failure to apply the safety-valve provision.

      At sentencing, Cruz declined to testify, stating he had already said


      1
         Had the provision applied, the sentencing range would have been 24 to 30 months’
imprisonment. See U.S.S.G. § 5C1.2(b) and Sentencing Table.

                                           2
everything he knew and there was no need to say it again. The court warned that

Cruz’s failure to testify would result in the denial of the safety-valve application.

The government then presented the following testimony of DEA Agent Kevin

Clark: In January 2007, during the investigation, authorities observed codefendant

Poggini arrive at the house in which Cruz was staying. Another car arrived with

two men later identified as Cruz’s nephew, Juan Carlos, and Lazro Cortina, the

owner of the house. The following week, Cruz placed the utilities for the house in

his name. Clark opined that Cruz’s nephew was part of the marijuana conspiracy

and had convinced Cruz to act as caretaker over the plants.2 Cruz admitted having

access to the buildings where the plants were kept and knew the plants were there

and expected to be paid.

       During the 60- to 90-minute interview, Cruz gave descriptions and

nicknames of people involved, but did not give any names. Cruz denied knowing

Poggini and Cortina. At no time during the interview did Cruz refuse to answer

any questions. Clark explained, however, that he did not ask specific questions

during the debriefing because it was Cruz’s obligation to offer everything he knew.

Clark had a “strong belief in [his] mind” that Cruz was withholding information,

but he could not confirm Cruz lied.


       2
         Paperwork seized from other grow houses in the conspiracy showed $1,000 payments to
and from Carlos.

                                             3
       After noting that Cruz had not testified, the court found that Cruz had not

been truthful with authorities based on Clark’s testimony, Cruz’s guilty plea, the

utilities in Cruz’s name, and Cruz’s nephew’s role. The court also noted that Cruz

expected to be paid for his role. Accordingly, the court concluded that Cruz had

not carried his burden and was not eligible for the safety-valve reduction. The

court sentenced him to the mandatory minimum sentence of 60 months’

imprisonment.

      Cruz’s sole issue on appeal is that the court erred by refusing to apply the

safety-valve provision because there was no basis for the court to conclude that he

did not provide full and truthful information in his debriefing. Cruz further argues

that the court is punishing him for his decision not to testify at sentencing, in

violation of his Fifth Amendment right.

      We review “a district court’s factual determinations and subsequent denial

of safety valve relief for clear error.” United States v. Camacho, 261 F.3d 1071,

1073 (11th Cir. 2001) (citation omitted). The defendant has the burden of proving

his eligibility for relief under U.S.S.G. § 5C1.2. United States v. Cruz, 106 F.3d

1553, 1557 (11th Cir. 1997).

      The safety-valve provision permits the court to impose a sentence below a

statutory minimum sentence if a defendant meets the five criteria set forth in the



                                            4
statutory subsection. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2; United States v.

Brownlee, 204 F.3d 1302, 1304 (11th Cir. 2000). Relevant to this appeal, the

defendant must show that he truthfully provided the government with all the

information and evidence he had “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); U.S.S.G. § 5C1.2(a)(5). “[T]he burden is on the defendant to come

forward and to supply truthfully to the government all the information that he

possesses about his involvement in the offense, including information relating to

the involvement of others and to the chain of the narcotics distribution.” United

States v. Milkintas, 470 F.3d 1339, 1345 (11th Cir. 2006) (quotation and alteration

omitted). There is no initial burden on the government to solicit information from

the defendant. Id. at 1346. Moreover, a district court cannot apply the safety valve

if it determines that the defendant “withheld or misrepresented information,” even

if the information would not have aided further investigation or prosecution if

properly disclosed. United States v. Figueroa, 199 F.3d 1281, 1282-83 (11th Cir.

2000).

         In determining the honesty of a defendant, the district court must

independently assess the facts and may not rely on the government’s assertion of

dishonesty. United States v. Espinosa, 172 F.3d 795, 796-97 (11th Cir. 1999). As



                                            5
such, the court has a duty to determine whether the statement provided by the

defendant is truthful and complete. Id. at 797. “Credibility determinations are

typically the province of the fact finder because the fact finder personally observes

the testimony and is thus in a better position than a reviewing court to assess the

credibility of witnesses.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th

Cir. 2002).

      Here, the reasons given by the district court support the denial of the

reduction. Clark testified that he believed Cruz was not forthcoming based on the

involvement of Cruz’s nephew and the nephew’s connection to the owner of the

home. The government was not required to solicit information; Cruz had the

responsibility to provide information on the offenses. Cruz’s refusal to testify at

sentencing left the district court with little ability to access his credibility. Because

the burden rested with Cruz, and Cruz offered nothing to establish he was entitled

to the reduction, the court properly denied the reduction.

      We further conclude that, although the Fifth Amendment right against self-

incrimination extends to sentencing, Mitchell v. United States, 526 U.S. 314, 319,

199 S.Ct. 1307, 1310, 143 L.Ed.2d 424 (1999), Cruz was not punished for his

refusal to testify. Rather, he simply did not receive a benefit to which he would

have been entitled had he met his burden.



                                            6
For the foregoing reasons, we AFFIRM.




                                7
