              Case: 12-11106   Date Filed: 02/05/2013   Page: 1 of 4

                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-11106
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:11-cr-00372-JDW-AEP-3

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

ALVIN MARTINEZ,

                                                            Defendant-Appellant.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (February 5, 2013)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Alvin Martinez pled guilty to both counts of a two-count indictment

charging him (and four others) in Count One with conspiracy to possess with intent
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to distribute five kilograms or more of a mixture and substance containing cocaine

on board a vessel subject to the jurisdiction of the United States and, in Count Two

with possession with intent to distribute the same on board a vessel subject to the

jurisdiction of the United States. And the District Court sentenced him to

concurrent prison terms of 210 months, at the low end of the guideline sentence

range of 210 to 262 months’ confinement. Martinez now appeals his sentences.

      Martinez’s appeal presents one issue: Whether the District Court erred by

denying him safety-valve relief under U.S.S.G. § 5C1.2(a). He argues that the

Government failed to present independent and objective proof that he withheld

information or lied during his proffer on pleading guilty. He further asserts that he

told the truth and disclosed all relevant information prior to the sentencing hearing,

and that he cannot be punished for failing to answer questions that he was not

asked by the Government during his proffer interview.

      In reviewing the denial of safety-valve relief, we review the district court’s

factual determination of the truthfulness and completeness of a defendant’s proffer

for clear error. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004);

United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000). The Sentencing

Guidelines direct the court to impose a sentence within the applicable guideline

sentence range without regard to any mandatory minimum when a defendant

satisfies five criteria. U.S.S.G. § 5C1.2(a). The criterion relevant here is that the


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defendant truthfully proffer, at a time no later than the sentencing hearing, all

information that he has regarding his offense. Id. § 5C1.2(a)(5). If a defendant

convicted of a controlled substance offense satisfies the U.S.S.G. § 5C1.2(a)

criteria, he receives a two-level decrease in his offense level. Id. § 2D1.1(b)(16).

The defendant has an affirmative responsibility to make a truthful and complete

disclosure about the offense and all relevant conduct, and bears the burden of

showing that he fulfilled this requirement. Johnson, 375 F.3d at 1302. The

Government is under no obligation to solicit information from a defendant who

seeks to qualify for safety-valve relief. United States v. Milkintas, 470 F.3d 1339,

1345-46 (11th Cir. 2006).

      When a defendant lies or fails to proffer the whole truth, this does not

preclude safety-valve relief if he gives a truthful and complete proffer “not later

than the commencement of the sentencing hearing.” Brownlee, 204 F.3d at 1305.

In United States v. Garcia, 405 F.3d 1260, 1274-75 (11th Cir. 2005), we elaborated

that the temporal element discussed in Brownlee is not binding, because the

defendant in Brownlee gave his proffer prior to the commencement of sentencing.

In Garcia, we held that the district court has discretion to continue a sentencing

hearing to allow a defendant to make the necessary proffer, even where the motion

to continue is made at the hearing. Garcia, 405 F.3d at 1275. In the typical case,

though, the proffer should be made before the commencement of the sentencing


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hearing. Id. (noting that the situation in the case was atypical because the

defendant did not speak English; the initial proffer interview was conducted

without an independent translator; the defendant’s counsel believed that the

defendant had already made a sufficient proffer; and there was no evidence that the

defendant’s failure to give a full proffer prior to sentencing was done in bad faith).

      We conclude that the District Court did not commit clear error in finding

that Martinez’s proffer was untruthful and incomplete. Hence, the court did not err

in denying Martinez’s request for safety-valve relief.

      AFFIRMED.




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