                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                      PUBLISH                               March 24, 2015

                                                                          Elisabeth A. Shumaker
                      UNITED STATES COURT OF APPEALS                          Clerk of Court
                             FOR THE TENTH CIRCUIT
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 13-6278

JESUS FIGUEROA-LABRADA, a/k/a
Chuy,

      Defendant - Appellant.
                      _________________________________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                      (D.C. NO. 5:11-CR-00234-HE-3)
                   _________________________________

Virginia L. Grady, Federal Public Defender, Interim, and O. Dean Sanderford, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant Jesus Figueroa-
Labrada, a/k/a Chuy.

Sanford C. Coats, United States Attorney, Steven W. Creager, Special Assistant U.S.
Attorney, and David P. Petermann, Assistant U.S. Attorney, Oklahoma City, Oklahoma,
for Plaintiff-Appellee United States of America.
                        _________________________________

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

MORITZ, Circuit Judge.
                    _________________________________
       Jesus Figueroa-Labrada (“Figueroa”) appeals from the district court’s denial of his

request for a reduced sentence under the “safety-valve” provision of 18 U.S.C. § 3553(f).

The district court held § 3553(f) did not apply because Figueroa failed to make the

disclosures necessary to support a reduced sentence before his initial sentencing hearing.

       Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we reject

the district court’s interpretation of § 3553(f). We conclude that when a defendant

provides information to the government for the first time on remand, but before the

resentencing hearing, the plain text of § 3553(f) requires the district court to consider that

information in determining whether the defendant has satisfied § 3553(f). Because the

district court here failed to do so, we reverse and remand for the district court to

determine Figueroa’s eligibility for a safety-valve sentence.

                                      BACKGROUND

       After a jury convicted Figueroa of conspiring to possess methamphetamine with

intent to distribute, the district court attributed to Figueroa 746.19 grams of a mixture or

substance containing a detectable amount of methamphetamine—the total amount of

methamphetamine involved in the conspiracy—and sentenced him to 120 months’

imprisonment. On direct appeal, a panel of this court reversed his sentence and remanded

for resentencing based on the district court’s failure to make particularized findings to

support attributing the total quantity to Figueroa. In doing so, the panel noted that it was

“reasonably probable” that only 56.7 grams of the methamphetamine mixture could be

attributed to Figueroa based on his participation in the conspiracy. See United States v.

Figueroa-Labrada, 720 F.3d 1258, 1261-63, 1268 (10th Cir. 2013) (“Figueroa I”).
                                              2
       On remand, the government presented no additional evidence regarding drug

quantity, and the district court therefore attributed to Figueroa 56.7 grams of

methamphetamine mixture. That amount carried a five-year mandatory minimum

sentence under 21 U.S.C. § 841(b)(1)(B)(viii), and the district court determined

Figueroa’s sentencing range was 63 to 78 months. But before his resentencing hearing,

Figueroa sought a lower sentencing range, arguing he qualified for a reduced sentence

under the “safety-valve” provision of § 3553(f). That provision allows a defendant to

receive a sentence lower than an applicable mandatory minimum sentence if, inter alia—

“not later than the time of the sentencing hearing”—he truthfully provides the

government all the information he possesses regarding his offenses. Had the district court

granted Figueroa’s request, Figueroa would have avoided the five-year mandatory

minimum and qualified for a two-level reduction in his base offense level, thereby

lowering his advisory Guidelines range to 51 to 63 months. See U.S.S.G. § 2D1.1(b)(16).

       Although Figueroa did not attempt to cooperate with the government prior to his

initial sentencing hearing, he provided enough truthful information before his

resentencing hearing to gain the government’s support of his safety-valve request.

Specifically, before Figueroa’s resentencing hearing, the prosecutor filed an “advisement

to the court” indicating that Figueroa had met all five § 3553(f) requirements and

specifically affirming that Figueroa had provided the government all information and

evidence he possessed concerning the offenses. Further, at Figueroa’s resentencing

hearing, the prosecutor characterized Figueroa’s disclosures as “truthful,” reiterated

Figueroa had met all five safety-valve requirements, and agreed Figueroa’s safety-valve

                                             3
request was timely, stating “the case law seems to suggest safety valve can be considered

for re-sentencing.” Resent. Hr’g Tr., Doc. 412, at 8, 13.

       Despite the government’s support of Figueroa’s safety-valve request, the district

court denied the request because Figueroa failed to provide the required disclosures prior

to his initial sentencing hearing. The court then imposed a 63-month sentence.

       Figueroa timely appeals the denial of his safety-valve request.

                                       DISCUSSION

       The sole issue in this appeal is whether § 3553(f)’s safety-valve is available to

Figueroa, who did not cooperate or seek safety-valve relief prior to his initial sentencing

hearing, but instead sought to satisfy the safety-valve requirements for the first time on

remand before his resentencing. As a matter of first impression, based on the plain text of

§ 3553(f), we conclude that when a defendant provides information to the government for

the first time on remand, before the resentencing hearing, a district court must consider

that information in determining the defendant’s eligibility for a safety-valve sentence.

       I.     The plain language of 18 U.S.C. § 3553(f) requires a district court to
              consider information a defendant provides to the government for the
              first time before the resentencing hearing.

       A defendant must satisfy five requirements to be eligible for a reduced sentence

under § 3553(f)’s safety-valve provision. Only the fifth requirement, 18 U.S.C.

§ 3553(f)(5), is at issue here. That subsection mandates imposition of a Guidelines

sentence “without regard to any statutory minimum sentence, if the court finds at

sentencing, after the Government has been afforded the opportunity to make a

recommendation, that—”

                                             4
       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.
18 U.S.C. § 3553(f)(5) (emphasis added).

       Stated another way, this section requires the district court to grant safety-valve

relief if it finds (1) at sentencing, (2) after the government has been afforded the

opportunity to make a recommendation, (3) that not later than the time of the sentencing

hearing the defendant truthfully provided the government all information and evidence

the defendant had concerning the offense.

       In finding § 3553(f) did not apply to Figueroa’s safety-valve disclosures, the

district court emphasized the statute’s requirement that the defendant provide information

“not later than the time of the sentencing hearing”—a phrase the district court interpreted

to exclude disclosures made before a resentencing hearing. Figueroa contends (as did the

government below) that the use of the phrase “sentencing hearing” includes resentencing

hearings.

       We review de novo a district court’s “legal interpretation guiding its application of

the safety-valve provision.” United States v. Cervantes, 519 F.3d 1254, 1256 (10th Cir.

2008). The starting point for our review is the safety-valve provision itself. If that

provision is clear and unambiguous, our inquiry ends and we give effect to the statute’s

plain language. United States v. Sprenger, 625 F.3d 1305, 1307 (10th Cir. 2010). In


                                              5
ascertaining the statute’s plain meaning, the “[p]roper interpretation of a word ‘depends

upon reading the whole statutory text, considering the purpose and context of the statute,

and consulting any precedent or authorities that inform the analysis.’” United States v.

Ko, 739 F.3d 558, 560 (10th Cir. 2014) (quoting Dolan v. U.S. Postal Serv., 546 U.S.

481, 486 (2006)).

       The disputed phrase here requires a defendant to make necessary disclosures “not

later than the time of the sentencing hearing.” This phrase clearly and unambiguously

refers to “the sentencing hearing” at issue, whether it’s an initial, second, or subsequent

sentencing hearing. The government agrees that throughout § 3553, “sentencing” refers

to whichever sentencing is at issue, including any resentencing. And it provides no good

reason for interpreting that word any differently in § 3553(f)(5).

       Nothing in the text of § 3553(f)(5) suggests that—unlike any other reference to

“sentencing” in the same statute—the phrase, “not later than the time of the sentencing

hearing,” should be read to include an extra word—“not later than the time of the initial

sentencing hearing.” As Figueroa argues, “the ordinary understanding” of the phrase

“sentencing hearing” includes resentencing hearings as well as initial sentencing

hearings. Moreover, the government’s argument ignores the statutory context of that

phrase. See United States v. Villa, 589 F.3d 1334, 1343 (10th Cir. 2009) (explaining that

statutory text, plain or not, derives meaning from context).

       The introductory phrase to § 3553(f) requires the district court to impose a

Guidelines sentence “without regard to any statutory minimum sentence, if the court

finds at sentencing” that the defendant has satisfied all five safety-valve conditions. Thus,

                                              6
by focusing solely on the phrase “not later than the time of the sentencing hearing” in

§ 3553(f)(5), the government and our dissenting colleague conveniently ignore the

appearance—within the same sentence—of the phrase “at sentencing.” And in context,

the phrase, “the sentencing hearing,” clearly refers back to the generic “at sentencing” in

the opening sentence of § 3553(f). The dissent offers no good reason to interpret the same

word differently within that same sentence.1

       Section 3553, when considered as a whole, further compels us to reject this

interpretation. For example, § 3553(c) provides that a sentencing court, “at the time of

sentencing, shall state in open court the reasons for its imposition of the particular

sentence.” 18 U.S.C. § 3553(c) (emphasis added). Section 3553(c) indisputably applies to

any sentencing hearing. See United States v. Rose, 185 F.3d 1108, 1113 n.3 (10th Cir.

1999) (when district court fails to comply with § 3553(c), remedy is to remand for

resentencing that complies with § 3553(c)). Indeed, if this court were to interpret the

phrase “at the time of sentencing” in § 3553(c) to exclude resentencing hearings, the

result would be unsupportable—a district court at resentencing could impose a sentence

without stating reasons for the sentence imposed.




       1
         Although the government does not make this distinction, the dissent suggests
there is significance to § 3553(f)(5)’s reference to “the sentencing hearing.” 18 U.S.C.
§ 3553(f)(5) (emphasis added); Dissent Op. at 4. Typically, use of the definite article
“the” suggests that its noun is singular or unique. See Colorado v. Sunoco, Inc., 337 F.3d
1233, 1241 (10th Cir. 2003). But while it might sometimes be a “reasonable linguistic
inference,” to interpret “the” in such a manner, here, the reference to “the” does not draw
a substantive distinction between a first, second, or subsequent “sentencing hearing.” See
United States v. DeGasso, 369 F.3d 1139, 1147 (10th Cir. 2004).
                                               7
       Given the linguistic similarities between §§ 3553(f), 3553(f)(5), and 3553(c), we

decline to assign the word “sentencing” a different meaning in these provisions. See

United States v. West, 671 F.3d 1195, 1200 (10th Cir. 2012) (explaining “absent good

reason to the contrary, ‘when the same words are used in different sections of the law,

they will be given the same meaning.’” (quoting In re Harline, 950 F.2d 669, 674 (10th

Cir. 1991))).

       The government not only fails to provide a good reason to construe the term

“sentencing” differently in § 3553(f)(5), it conceded at oral argument that § 3553

generally applies at resentencing hearings. But, instead of accepting the plain meaning of

§ 3553(f)(5), the government suggests in its response brief that we look to 18 U.S.C.

§ 3742(f)(1) for guidance as to the meaning of “the sentencing hearing.” That statute

provides authority for appellate courts to remand for resentencing and, as the government

points out, specifically refers to proceedings on remand as “further sentencing

proceedings.” The government thus reasons that a resentencing following remand is

really just a continuation of the initial sentencing, and not a separate “sentencing

hearing.”

       But to arrive at this conclusion, the government overlooks relevant statutory text

and context. Under § 3742(f)(1), we remand for “further sentencing proceedings” if we

conclude the district court erred in imposing a sentence. The plain language of § 3742(g)

controls the district court’s actions on remand: “A district court to which a case is

remanded pursuant to subsection (f)(1) . . . shall resentence a defendant in accordance

with section 3553 and with such instructions as may have been given by the court of

                                              8
appeals . . . .” (Emphasis added.) Because the safety-valve provision is found in § 3553,

the district court was required, on remand, to resentence Figueroa in accordance with

§ 3553, which necessarily included consideration of Figueroa’s safety-valve eligibility

under § 3553(f). See United States v. Verners, 103 F.3d 108, 110 n.3 (10th Cir. 1996)

(finding that safety-valve relief under U.S.S.G. § 5C1.2 “is not discretionary; it requires a

departure from the minimum sentence on finding that certain conditions are met”). Even

our dissenting colleague agrees on this point. Dissent Op. at 1-2.

       Simply stated, there is no textual support for interpreting § 3553(f)(5)’s phrase

“not later than the time of the sentencing hearing,” as referring only to “the original

sentencing hearing.” See Dissent Op. at 4. Unlike the district court, the government, and

our dissenting colleague, we decline to augment the statute with language not found

therein. See Christner v. Poudre Valley Co-op. Ass’n, 235 F.2d 946, 950 (10th Cir. 1956)

(“Courts should confine themselves to the construction of a statute as it is written and not

attempt to supply omissions or otherwise amend or change the law under the guise of

construction.”).

       Rather, we read § 3553(f)(5)’s requirement as clarifying that because the district

court must make safety-valve findings “at sentencing,” and because the government must

have an opportunity to make a recommendation, the defendant must make the necessary

disclosures before “the sentencing hearing” at issue begins, regardless of whether it is an

initial, second, or subsequent sentencing hearing. See United States v. Galvon-Manzo,

642 F.3d 1260, 1267 (10th Cir. 2011) (“[G]enerally speaking, any and all disclosures for



                                              9
safety-valve purposes are timely only if they occur prior to the commencement of the

sentencing hearing.”).

       Applying our plain-language interpretation of § 3553(f) to the narrow

circumstances before us, we conclude the statute permits a defendant to make safety-

valve disclosures for the first time on remand before a resentencing hearing. And that

same statutory provision, read in conjunction with § 3742(g), requires a district court to

consider such disclosures in determining safety-valve eligibility at resentencing following

remand.

       II.    This court’s precedent as well as the decisions of our sister circuits do
              not address the question presented here.

       The government relies heavily on United States v. Galvon-Manzo, 642 F.3d 1260

(10th Cir. 2011), and United States v. Acosta-Olivas, 71 F.3d 375 (10th Cir. 1995), to

support its position that to be eligible for a safety-valve sentence a defendant must satisfy

the § 3553(f) factors before his initial sentencing hearing. Neither case sheds any real

light on the question presented here.

       Galvon-Manzo concerned two defendants’ attempts during their initial sentencing

hearings to alter untruthful information they previously provided to the government in

support of their safety-valve requests. The district court denied the defendants’ requests

and this court affirmed, holding the district court did not err in determining the

defendants failed to satisfy § 3553(f)’s requirement to provide truthful and complete

statements to the government.




                                             10
       In affirming the district court, the Galvon-Manzo panel noted, “generally speaking,

any and all disclosures for safety-valve purposes are timely only if they occur prior to the

commencement of the sentencing hearing.” 642 F.3d at 1267 (emphasis added). Contrary

to the government’s assertion, this simple restatement of the statute’s text says nothing

about whether the phrase, “not later than the time of the sentencing hearing,” requires the

district court to ignore truthful and complete information a defendant provides for the

first time on remand before his resentencing hearing.

       The Galvon-Manzo panel further explained that the underlying purpose of the

safety-valve serves to “‘benefit only those defendants who truly cooperate.’” 642 F.3d at

1268 (quoting United States v. Marin, 144 F.3d 1085, 1094 (7th Cir. 1998)). Thus, by

requiring disclosures “not later than the time of the sentencing hearing,” Congress

intended to prevent a situation where “‘a defendant may lie to the government and still

qualify for safety valve relief merely by altering his story at sentencing in order to

comport with the evidence presented by the government during the hearing.’” Id.

(quoting Marin, 144 F.3d at 1095).

       The government urges the court to address these policy concerns by contorting the

statute to forbid a district court from considering a defendant’s request for a safety-valve

sentence for the first time on remand before his resentencing hearing. Notably, in so

doing, the government ignores significant factual differences between this case and

Galvon-Manzo, namely that Figueroa made no disclosures before or during his initial

sentencing hearing whereas both defendants in Galvon-Manzo admitted making

untruthful disclosures before their initial sentencing hearings and sought to provide

                                             11
additional information during their sentencing hearings. Had the district court properly

considered Figueroa’s disclosures and found them to be untruthful or incomplete, the

district court would have been within its discretion to deny Figueroa’s request. But that is

not what happened here, and Galvon-Manzo does not instruct interpreting the statute in

the manner the government suggests.

       Acosta-Olivas is similarly inapt. There, the district court interpreted § 3553(f)(5)

to require a defendant to reveal only information regarding his own involvement in the

crime, not information he possessed regarding other participants. Based on this

interpretation, the district court determined the defendant “qualified under § 3553(f) for

relief from the minimum mandatory sentence” because he had written “a letter describing

his own involvement in the conspiracy.” Acosta-Olivas, 71 F.3d at 377. The government

appealed, contending the defendant’s letter describing only his own involvement in the

drug conspiracy did not satisfy § 3553(f)(5), which requires a defendant to “truthfully

provid[e] 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) (emphasis added). This court agreed with

the government and remanded the case with the following instructions:

              [W]e REMAND this case with instructions to vacate the sentence
       and resentence. If, at resentencing, the court makes a factual finding that, in
       deciding what information to disclose to the government, Mr. Acosta-
       Olivas relied upon the district court’s interpretation of § 3553(f)(5), the
       court shall allow him the opportunity to comply with the statute as this
       court has interpreted it in this opinion.

Acosta-Olivas, 71 F.3d at 379-80.


                                             12
       The government and our dissenting colleague rely heavily on Acosta-Olivas’

remand instruction. Dissent Op. at 3, 11-12. They interpret it to imply a general

prohibition against permitting a defendant to comply with § 3553(f) by providing the

government information on remand before resentencing. But they place more weight on

the instruction than it can bear. Acosta-Olivas simply did not address, either in its holding

or in its remand instruction, whether the phrase “the sentencing hearing” is limited to the

original sentencing hearing.

       Like Galvon-Manzo, Acosta-Olivas neither states nor implies a general rule

against allowing a defendant to comply with § 3553(f) by making disclosures for the first

time on remand before a resentencing hearing. Rather, when a district court determines

whether a defendant has satisfied § 3553(f), it must consider any information the

defendant provided to the government for the first time before a resentencing hearing. Cf.

Verners, 103 F.3d at 111 (considering whether defendant’s statements on remand

regarding her knowledge of criminal enterprise were truthful and complete).

       Finally, we note that several of our sister circuits have assumed without deciding

that § 3553(f)(5) permits consideration of the safety-valve provision at resentencing. See,

e.g., United States v. Purnell, 361 F. App’x 384, 385 (3d Cir. 2010) (unpublished) (noting

that defendant qualified for safety-valve sentence upon resentencing when he “met with

law enforcement authorities following remand”);2 United States v. DeMott, 513 F.3d 55,

58 (2d Cir. 2008) (assuming district court could consider defendant’s “additional safety

       2
         But compare United States v. Giraldo, 52 F. App’x 584, 586-87 (3d Cir. 2002)
(unpublished) (holding a safety-valve disclosure made before resentencing, and not
before the initial sentencing, is untimely).
                                             13
valve proffer prior to a second resentencing,” and noting § 3553(f)(5) requires the

resentencing judge to make factual findings as to whether defendant made complete and

truthful proffer); United States v. Flanagan, 80 F.3d 143, 145 n.1 (5th Cir. 1996)

(pointing out that government did not argue newly enacted safety-valve provision could

not be considered at resentencing hearing and noting “without expressing an opinion

regarding whether the [safety-valve] provision should apply at a resentencing,” that

district courts have found the provision applies to a resentencing on remand).

       Moreover, the unpublished Ninth Circuit case cited by the government in support

of its interpretation, United States v. Ferret-Castellanos, 108 F.3d 339, 1996 WL 733198

(9th Cir. 1996) (Table) (unpublished), is distinguishable. There, the Ninth Circuit held

that a defendant’s offer to truthfully provide information at two resentencing hearings

was “too late” under § 3553(f)(5). 1996 WL 733198, at *2. But the court’s more

significant concern seemed to be truthfulness, rather than timeliness of the disclosures, as

the court emphasized that the defendant had already “lied to the court at his initial

sentencing hearing.” 1996 WL 733198, at *2. This unpublished, out-of-circuit decision,

based on threadbare analysis and distinct facts, has little persuasive value.3

       On the whole, the cases discussed by the government do not dissuade us from

interpreting § 3553(f) consistently with the plain language of the statute. Consequently,


       3
         Although not specifically pertinent to our discussion here since this case does not
involve prior untruthful disclosures, we note that Ferret-Castellanos appears inconsistent
with a more recent Ninth Circuit case United States v. Mejia-Pimental, 477 F.3d 1100
(9th Cir. 2007). There, the court held that a defendant remained eligible for the safety
valve at resentencing despite his prior lies and omissions in support of his safety-valve
request.
                                             14
we hold the district court erred in concluding that because Figueroa had not made the

requisite disclosures before his initial sentencing hearing, it was not required to consider

whether the information Figueroa provided to the government otherwise satisfied the

requirements of § 3553(f).

       III.   The district court’s error was not harmless.

       Finally, the government argues the district court’s error was harmless because the

district court indicated that had it reached the merits, it would have denied Figueroa’s

safety-valve request. In support, the government cites several statements made by the

district court on remand expressing skepticism about the truthfulness of Figueroa’s

disclosures and the level of his involvement in the “drug operation.”

       “Harmlessness must be proven by a preponderance of the evidence, and the

burden of making this showing falls on the beneficiary of the error—in this case, the

government. A harmless error is that which did not affect the district court’s selection of

the sentence imposed.” United States v. Lente, 647 F.3d 1021, 1037-38 (10th Cir. 2011)

(citations and internal quotation marks omitted).

       After carefully reviewing the sentencing transcript and the district court’s

statements, we do not interpret those statements as a clear indication the district court

would have denied Figueroa’s request for safety-valve relief had it considered the

substance of Figueroa’s disclosures.

       First, the district court carefully distinguished its consideration of the “timeliness”

of the disclosures and the truthfulness of the same. Second, the court generally prefaced

its statements regarding Figueroa’s depth of involvement in the conspiracy with qualifiers

                                             15
such as “it does seem” and the “facts here suggest.” Resent. Hr’g Tr., Doc. 412, at 30.

Finally, we cannot ignore that at resentencing the government repeatedly characterized

Figueroa’s statements as both truthful and complete. In fact, the prosecutor specifically

represented to the court that prior to the resentencing hearing, Figueroa truthfully

provided to the government all information and evidence he possessed concerning the

offenses.

       In sum, the government has not shown by a preponderance of the evidence that the

district court would have denied Figueroa’s request for safety-valve relief had it fully

considered that request. Therefore, we remand this case for resentencing yet again.

       On this remand, we instruct the district court to resentence Figueroa “in

accordance with section 3553,” as required by § 3742(g), which necessarily includes the

determination of Figueroa’s eligibility for safety-valve relief.

                                       CONCLUSION

       The district court erred in concluding, as a matter of law, that it could not consider

Figueroa’s disclosures in support of his application of 18 U.S.C. § 3553(f) at resentencing

simply because Figueroa failed to make the requisite disclosures before his initial

sentencing hearing. Consequently, we reverse Figueroa’s sentence and remand for

resentencing in accordance with § 3553, including a determination of Figueroa’s

eligibility for a reduced sentence under § 3553(f).




                                             16
United States v. Figueroa-Labrada, No. 13-6278

PHILLIPS, Circuit Judge, dissenting:

   I agree with the majority that the text of 18 U.S.C. § 3553(f) permits a defendant to

request safety-valve relief for the first time at a resentencing. But I disagree with the

majority that a defendant may support that request with safety-valve information first

provided to the government after the initial sentencing hearing. The plain language of

§ 3553(f)(5), and our case law interpreting it, requires full and truthful disclosure before

the initial sentencing hearing begins. Because I conclude that the district court did in fact

consider Figueroa’s safety-valve request at the resentencing hearing and properly denied

it because Figueroa had failed to disclose the necessary safety-valve information before

his initial sentencing hearing, I respectfully dissent.

                          I. Safety-Valve Relief and Resentencing

   Under 18 U.S.C. § 3742(f)(1), we remand for “further sentencing proceedings” if we

conclude that a district court erred in imposing a sentence. Under § 3742(g), “[a] district

court to which a case is remanded pursuant to subsection (f)(1) . . . shall resentence a

defendant in accordance with section 3553 and with such instructions as may have been

given by the court of appeals. . . .” Nothing suggests that a district court may pick and

choose what parts of § 3553 to apply at resentencing. Because the safety-valve provision

is found within § 3553, I conclude that a district court must consider safety-valve

eligibility at any resentencing if a defendant seeks it.1 See United States v. Verners, 103


   1
    Consistently with this view, I read § 3553(f)’s requirement that district courts
consider safety-valve relief after the five listed showings “at sentencing” to mean at the
F.3d 108, 110 n.3 (10th Cir. 1996) (finding that safety-valve relief under USSG § 5C1.2

“is not discretionary; it requires a departure from the minimum sentence on finding that

certain conditions are met.”).

                          II. Timely Disclosures Under § 3553(f)(5)

   This appeal raises a single question:2 What does 18 U.S.C. § 3553(f)(5) mean when it

requires that “not later than the time of the sentencing hearing” a defendant has fully and

truthfully provided to the government all information and evidence he has about his

offense or offenses? The district court concluded, and the government now argues,3 that

the time for disclosing the necessary information ended when Figueroa’s original


sentencing and any resentencing. And I also agree that this use of “at sentencing” is
“within the same sentence” as § 3553(f)(5)’s use of “not later than the time of the
sentencing hearing . . . .” See Maj. Op. at 7 (emphasis in original). But the majority must
also recognize that subsection (f)’s “at sentencing” is separated by more than one
hundred words—and four numbered conditions—from subsection (f)(5)’s “not later than
the time of the sentencing hearing.” Because sentencings can be followed by
resentencings, as here, I disagree with the majority that “at sentencing” and “the time of
the sentencing hearing” must always refer to the same sentencing hearing. Indeed, if they
do, one can forcefully argue that subsection (f)(5)’s quoted timing condition is
superfluous.
   2
     I agree with the majority that the district court did not make sufficient findings that it
would have denied Figueroa safety-valve relief for failing to provide a full account of his
and his co-conspirators’ criminal activity. Maj. Op. at 15–16. That said, the district court
did express skepticism about whether Figueroa had indeed fully disclosed all information
and evidence required under § 3553(f)(5). R. vol. III at 46-47. This issue remains alive on
remand.
   3
     As the majority notes, the government told the district court at resentencing that it
considered Figueroa’s disclosures timely, stating that “the case law seems to suggest
safety valve can be considered for re-sentencing.” Maj. Op. at 4; R. vol. III at 24, 29. At
oral argument, the government’s counsel explained its change in position as resulting
from “fresh eyes on the district court ruling and further legal analysis of the district
court’s ruling.”
                                              2
sentencing hearing began. In other words, the district court concluded that § 3553(f)(5)’s

time limit of “not later than the time of the sentencing hearing” did not stretch forward to

allow disclosure of safety-valve information long after the initial sentencing commenced.

I agree with this view.

   A. The plain language of § 3553(f) and our court’s precedent forecloses any
      opportunity for Figueroa to make first-time safety-valve disclosures on remand.


   I would affirm because I believe—as supported by a key Tenth Circuit case—that the

district court properly interpreted the plain language of 18 U.S.C. § 3553(f)(5). In United

States v. Acosta-Olivas, 71 F.3d 375 (10th Cir. 1995), the district court awarded safety-

valve relief4 to Acosta-Olivas after requiring that he truthfully disclose only his own

offense conduct, but not that of his co-conspirators. Id. at 377. Because the district court

erred by limiting the required disclosure, this court remanded “this case with instructions

to vacate the sentence and resentence.” Id. at 379–80. Because this court could not tell

whether the district court’s legal error had caused Acosta-Olivas’s incomplete disclosure,

we remanded as follows: “If, at resentencing, the court makes a factual finding that, in

deciding what information to disclose to the government, Mr. Acosta-Olivas relied upon

the district court’s interpretation of § 3553(f)(5), the court shall allow him the opportunity

to comply with the statute as this court has interpreted it in this opinion.” Id. at 380.




   4
     Section 3553(f) applies “to all sentences imposed on or after” September 23, 1994,
ten days after the date of enactment. Pub. L. No. 103-322, § 80001(a), 108 Stat. 1796,
1985-86 (1994).
                                               3
   The upshot of this remand language from Acosta-Olivas seems straightforward.

Because we allowed Acosta-Olivas to produce more evidence about his co-conspirators’

activities if the district court’s error had caused him to withhold that information, it

sensibly follows that we disallowed him to produce the additional information if the

district court’s error did not cause his deficient disclosure. For a variety of reasons, I

conclude that Acosta-Olivas meant just exactly that.

   First, the plain language of § 3553(f)(5) requires full disclosure of information to the

government “not later than the time of the sentencing hearing.” (emphasis added.) The

majority treats the article “the” as unimportant, instead choosing to focus on the words

“sentencing hearing.” Maj. Op. at 6-7. But “the” matters. After all, it is our duty to give

effect, if possible, to every clause and word of a statute. Duncan v. Walker, 533 U.S. 167,

174 (2001). The singular “the” lends support to an interpretation that “the sentencing

hearing” refers to one sentencing hearing—which, because it is the first one, must be the

original sentencing hearing.

   Second, other circuits examining Acosta-Olivas construe it the same way that I do.

They view Acosta-Olivas’s remand instruction as carving an interest-of-justice exception

to a general rule prohibiting a defendant from disclosing additional safety-valve

information at resentencings. See United States v. Madrigal, 327 F.3d 738, 746-47 (8th

Cir. 2003) (stating that “the Tenth Circuit [in Acosta-Olivas] has suggested that a

defendant, under the right circumstances, may also qualify for safety valve relief if the

defendant comes clean at resentencing.” (emphasis added)); United States v. Flanagan,

80 F.3d 143, 147 (5th Cir. 1996) (citing Acosta-Olivas and allowing the defendant an

                                               4
opportunity on remand to disclose truthful information for safety-valve relief if the

district court’s legal error in placing the burden of proof on the government led to

Flanagan’s not fully disclosing information at his original sentencing hearing, and barring

safety-valve relief if not).

   Third, I agree with the government that it would be an odd result to disallow Figueroa

from proffering safety-valve disclosures after his original sentencing hearing had begun,

but then to allow him to do so months later. See Appellee’s Br. at 17–18. In fact, our

precedent emphasizes the sound policy of requiring a defendant to disclose information

before the original sentencing. In United States v. Galvon-Manzo, 642 F.3d 1260, 1268

(10th Cir. 2011), we approved of a general safety-valve policy as “serv[ing] the

government’s interest in full, truthful disclosures from defendants about their own and

related criminal conduct.” Clarifying this, we noted that “[f]orcing the government to

wait until the middle of a sentencing hearing before it obtains such information interferes

with that policy and forces the government to conduct further investigations to determine

the truthfulness of the disclosures.” Id.

   Consequently, we did not permit a defendant to disclose additional safety-valve

information—even during his original sentencing hearing—because “a defendant may lie

to the government and still qualify for safety valve relief merely by altering his story at

sentencing in order to comport with the evidence presented by the government during the

hearing.” Id. (quoting United States v. Marin, 144 F.3d 1085, 1095 (7th Cir. 1998)).

Accordingly, given the importance of the timeliness of fully truthful disclosure,



                                              5
contrasted with Figueroa’s long delay in disclosing, I believe these policy grounds also

are consistent with my interpretation of Acosta-Olivas.

   Fourth, showing that Acosta-Olivas meant what it said, this court 16 years later said it

again in Galvon-Manzo, 642 F.3d at 1268. That case involved two men stopped for

speeding in a car containing 12 kilograms of cocaine in a hidden compartment. Id. at

1262. The two men had been in regular contact with a California source subject to a Drug

Enforcement Administration (DEA) wiretap; law enforcement had intercepted multiple

calls between the defendants and the drug source. Id. When police arrested them, the

defendants denied knowing the cocaine was in their car. Id. Then, afterward, both

defendants failed to truthfully disclose information during debriefing proffers with the

DEA—where agents specifically informed the defendants that a sentence reduction

depended on their providing honest information. Id. at 1263. Before sentencing, Guzman-

Manzo emailed an affidavit to the government providing only limited details about his

drug activity. Id. At sentencing, his counsel requested that Guzman-Manzo be “afforded

another opportunity to provide a statement to the government,” which I understand to

mean another chance to sit down for a debriefing proffer. Id. at 1264.

   The district court denied this request, saying that “in view of the fact that there have

been two dishonest attempts, I would not be prepared to give any credence to what he

said the third go around. . . .” Id. The district court declared the two defendants ineligible

for safety-valve relief, pointing to their failed proffers and lack of credibility. Id. at 1265.

In response to Galvon-Manzo’s statement that he was “prepared today at sentencing” to

clarify his and his co-defendant’s role in the offense, the district court replied:

                                               6
         [T]here comes a time when this ends. . . . Two opportunities, now when it is
         clear that his misstatements and omissions and flat-out falsehoods have
         been revealed, now is not the time when a defendant can come in and say,
         “All right, I was dishonest before, but now in front of you, judge, I’ll tell
         the truth.” I would view that with some skepticism, and that is not the
         purpose of this.

Id.

      The Galvon-Manzo court held—as a matter of first impression—that “the resolution

of disputes arising out of or relating to the debriefing process lies within the sound

discretion of the district court.” Id. at 1267. In this regard, it explained that “the district

court may exercise discretion to determine whether a particular defendant should be

entitled to one, two or several debriefing sessions.” Id. Next, addressing a separate issue

of timeliness of a defendant’s safety-valve disclosures, the court also held that “generally

speaking, any and all disclosures for safety-valve purposes are timely only if they occur

prior to the commencement of the sentencing hearing.” Id. (emphasis added) (citations

omitted). Under these standards, the court concluded that the district court had not erred

in its “refusal to allow Guzman-Manzo to make further disclosures after the sentencing

hearing commenced, in an effort to obtain safety-valve relief.” Id. at 1268–69.

      On appeal, relying on Acosta-Olivas, Guzman-Manzo argued “if [the Tenth Circuit]

conclude[s] that ‘disclosure at or during the sentencing hearing is not timely, such a

pronouncement should be effective prospectively and should not preclude the defendant

from attempting to comply with such a reading of the statute on remand.’” Id. at 1269 n.5

(citation omitted). In essence, he argued that because any such rule was not effective at

his sentencing, it should not bind him.


                                                7
   Important for our purposes, the Galvon-Manzo court commented on the meaning of

Acosta-Olivas: “We allowed the defendant in Acosta-Olivas on remand and at

resentencing to comply with the safety-valve provision if the court, at resentencing, found

that the defendant had relied upon an erroneous interpretation of the statute by the district

court at the initial sentencing.” Id. (emphasis in original). The court declined to remand,

concluding that the district court had “provided no such erroneous interpretation and we

see no reason to remand the matter for resentencing.” Id. The court further concluded that

the district court “did not decide against Guzman-Manzo because he was seeking to

provide the information too late (i.e., after the sentencing hearing commenced) but

because the district court decided that he was simply not reliable and truthful.” Id.

   I share the Galvon-Manzo court’s understanding of Acosta-Olivas. In Galvon-Manzo,

the court italicized the “if”—emphasizing the condition on the district court’s allowing

additional safety-valve disclosures at a resentencing. Id. As did Acosta-Olivas, the court

spoke of when a defendant is “allowed” to do so. Here, like Guzman-Manzo and unlike

Acosta-Olivas, Figueroa was not allowed a chance to offer new disclosures at a

resentencing hearing because his deficient (completely lacking) safety-valve disclosures

resulted from his own choice not to fully disclose at his original sentencing hearing, not

from any legal error of the district court.

   B. Figueroa’s arguments are unavailing.

   As stated, I believe that the Acosta-Olivas court “allowed” Acosta-Olivas to disclose

additional safety-valve information before his resentencing “if” he had failed to do so at

the original sentencing hearing because of the district court’s legal error, but that it also

                                               8
otherwise disallowed any additional disclosures. Acosta-Olivas, 71 F.3d at 379–80. Yet

Figueroa responds to this view with a rival interpretation. He reads Acosta-Olivas’s

language as “simply set[ting] a limit on the district court’s usual discretion to refuse

repeated proffers from a defendant.” Appellant’s Br. at 21. Along the same line, he says

that “[a]ll this Court was saying in Acosta-Olivas is that this usual discretion didn’t apply

if Acosta-Olivas’s failure to make a complete proffer could be innocently explained by

his reliance on the district court’s interpretation. In that situation, the court was required

to accept additional proffer.” Id. (emphasis in original). For a variety of reasons, I am

unpersuaded by the reasoning underlying Figueroa’s creative argument.

   First, starting with the basics, I agree that Galvon-Manzo held that “the resolution of

disputes arising out of or relating to the debriefing process lies within the sound

discretion of the district court” and that “the district court may exercise discretion to

determine whether a particular defendant should be entitled to one, two or several

briefing sessions.” 642 F.3d at 1267. But Galvon-Manzo set the time for exercising this

discretion as sometime before the original sentencing hearing begins. Figueroa blithely

overextends this discretion as also applying at resentencings. As mentioned, he explains

Acosta-Olivas’s remand condition as “simply set[ting] a limit on the district court’s usual

discretion to refuse repeated proffers from a defendant.” Appellant’s Br. at 21. He offers

no supporting authority that this “usual discretion” applies when a defendant first

requests safety-valve relief at a resentencing and, not until then, discloses the needed

information.



                                               9
   Second, Figueroa’s reading of the Acosta-Olivas court’s remand language is

implausible. As mentioned, Figueroa asserts that Acosta-Olivas’s remand language

impliedly says that the district court may also allow him the opportunity to disclose new

information on remand even if it finds that he chose not to do so at resentencing without

this reliance. See Appellant’s Br. at 21. The short answer is that this court in Acosta-

Olivas did not say that. Instead, it spoke of allowing further disclosures at resentencing

“if” he would have provided the same information at his original sentencing absent the

district court’s legal error. See Acosta-Olivas, 71 F.3d at 380. Acosta-Olivas’s tight

remand language strongly supports a reading that, despite § 3553(f)(5)’s general

prohibition against late disclosures, Acosta-Olivas got leeway to disclose safety-valve

information after his original sentencing only if necessary to avoid any injustice caused

by the district court’s legal error that he need not disclose the conduct of his co-

conspirators. See Flanagan, 80 F.3d at 147 (citing Acosta-Olivas and ruling that if

defendant’s failure to fully disclose was not caused by the district court’s erroneous

interpretation of the safety-valve statute, “the safety valve statute is not available” and the

“district court should . . . proceed to resentence the defendant without the benefit of such

provision.”).

   Third, we know that if Figueroa had tried to make safety-valve disclosures after his

original sentencing hearing began, he would have run afoul of the general rule that “any

and all disclosures for safety-valve purposes are timely only if they occur prior to the

commencement of the sentencing hearing.” Galvon-Manzo, 642 F.3d at 1267. And had he

tried to appeal on plain error that he was entitled to safety-valve despite not raising it in

                                              10
the district court, he would have lost. See United States v. Williams, 480 F. App’x 940,

942–43 (10th Cir. 2012) (unpublished) (declining to reverse for plain error failure to

award safety-valve relief even when substantial-assistance relief had been awarded under

USSG § 5K1.1 “because a hearing on remand might show that the defendant who claims

entitlement to a safety-valve reduction was in fact not so entitled.”). Figueroa’s “blink-

off, blink-on” switch for safety-valve disclosures makes little sense, results in disparities,

and has no solid law behind it.

   Fourth, as the government notes, the Acosta-Olivas court had no reason to fear that

the district court would treat Acosta-Olivas poorly on remand. Appellee’s Br. at 22.

Indeed, the district court had treated him too kindly the first time around (at least under

the plain language of § 3553(f)(5)). Under these circumstances, it is hard to imagine a

need to guard Acosta-Olivas against the district court’s depriving him of an opportunity

to fully disclose the details of his offense. I do not believe that the remand was to guard

against this long shot.

   C. The Majority’s interpretation of Acosta-Olivas’s remand instruction is untenable.

   The majority disputes that Acosta-Olivas’s remand instruction “impl[ies] a general

prohibition against permitting a defendant to comply with § 3553(f) by providing the

government information on remand before resentencing.” Maj. Op. at 13. Yet without

any analysis of the remand instruction’s language or the context in which Acosta-Olivas

used it, the majority dismisses the instruction by concluding that it “did not address . . .

whether the phrase ‘the sentencing hearing’ is limited to the original sentencing hearing.”


                                              11
Maj. Op. at 13. The summary conclusion enables the majority to avoid addressing two

problems. First, under Acosta-Olivas, the majority should acknowledge that a district

court may at least sometimes refuse to consider safety-valve information disclosed after

an initial sentencing but before a resentencing. This runs counter to the majority’s rule

that § 3553(f)(5) always commands district courts on remand to allow defendants second

opportunities to disclose additional safety-valve information and then to determine

whether the delayed disclosures entitle defendants to safety-valve relief. Maj. Op. at 2,

10. The majority points to nothing in § 3553(f) enabling district courts to condition—as

this court did in Acosta-Olivas—what the majority views as an absolute statutory right to

present safety-valve information on remand. I see nothing in §3553(f) doing so. Quite

simply, the majority’s rule cannot accommodate Acosta-Olivas’s condition. If the

majority’s rule is right, then Acosta-Olivas is wrong, and the majority should take the

necessary steps to try to overrule it.

   Second, the majority’s interpretation of Acosta-Olivas and § 3553(f)(5) leads to an

odd result—and one unlikely to be Congress’s intended result. Under the majority’s

reading, someone like Acosta-Olivas is barred from supplementing his safety-valve

disclosure despite already having at least partially disclosed the necessary information

and now wanting to provide the rest (perhaps his coconspirators had pleaded guilty after

his initial sentencing hearing), but someone like Figueroa can provide nothing and later

have his earlier complete silence rewarded with an opportunity to disclose fully. In

evaluating the sensibility of such a safety-valve scheme, we need to remember that

Figueroa had every chance to seek safety-valve relief at his original sentencing and to

                                             12
make the necessary safety-valve disclosures before that hearing started.5 Figueroa’s total

failure to disclose information—as opposed to Acosta-Olivas’s partial failure—should

not propel Figueroa to greater relief on appeal.

       1. The Majority’s cases do not compel its result.

   To bolster its view that § 3553(f)(5) requires a district court to allow a previously

silent defendant to disclose the necessary truthful information at a resentencing, the

majority relies on Flanagan, 80 F.3d at 145 n.1, for a footnote sentence saying that

“without expressing an opinion regarding whether the [safety-valve] provision should

apply at resentencing, we note that district courts have found the provision applies to a

resentencing on remand.” Maj. Op. at 14. This portion of Flanagan addresses whether

defendants with pending appeals when § 3553(f) was enacted can qualify for safety-valve

relief on remand. Additionally, Flanagan cited just one district court case in support,

United States v. Buffington, 879 F. Supp. 1220, 1222 (N.D. Ga. 1995). That case was

before the district court for an original sentencing—there was no remand. Although not

an issue at its sentencing hearing, the court remarked that “[a]t least one court, however,

has found that the new law applies to a resentencing on remand from a court of appeals

even if the initial sentence occurred prior to the effective date.” Id. (citing United States

v. Ekwunoh, 888 F. Supp. 364, 365 (E.D.N.Y. 1994)). This offers Figueroa no help


   5
     I recognize that Figueroa now blames his trial counsel for his not seeking safety-
valve relief at his original sentencing. As did the district court, I view this as an issue of
ineffectiveness of counsel, one which is better addressed in a petition under 28 U.S.C.
§ 2255. We have no way of knowing the reason Figueroa did not proffer, and ineffective
assistance of counsel is just one of the myriad of possibilities.

                                              13
because it only considers when § 3553(f) may apply when the original sentencing took

place before § 3553(f) took effect.

   In fact, as I explained earlier, Flanagan helps the government much more than it helps

Figueroa. Flanagan did not allow the relief Figueroa now demands under § 3553(f)(5).

Instead, that court simply allowed a remand on the question of safety-valve relief to

ensure that Flanagan’s failure to establish safety-valve eligibility did not result from the

district court’s erroneously placing the burden on the government to show ineligibility.

Flanagan, 80 F.3d at 147 (citing Acosta-Olivas, 71 F.3d at 380). Accordingly, all told,

Flanagan supports my view of Acosta-Olivas and offers Figueroa no help.

   The majority also contends that United States v. Mejia-Pimental, 477 F.3d 1100 (9th

Cir. 2007), supports its holding. Maj. Op. at 14 n.3. In that case, the court vacated the

defendant’s sentence and remanded a third time. Mejia-Pimental, 477 F.3d at 1102. In the

midst of these lengthy proceedings, all of Mejia-Pimental’s co-defendants, including an

uncle, had pleaded guilty. Id. at 1102-03. Before his third sentencing hearing, Mejia-

Pimental sought to “provide an in-person safety valve proffer” with the government. Id.

at 1103. The government refused because Mejia-Pimental had previously lied and

declined to proffer. Id. Soon before his third sentencing, Mejia-Pimental delivered a letter

to the government detailing his involvement in the charged offenses and that of other

persons too. Id. Although the government did not contest the truthfulness or completeness

of the disclosure, the district court denied relief, concluding that Mejia-Pimental had not

exhibited good-faith cooperation by awaiting pleas of his co-defendants before disclosing

information. Id. The Ninth Circuit reversed, concluding that “the good faith inquiry

                                             14
focuses on the defendant’s cooperation in fully disclosing his knowledge of the charged

offense conduct, not on identifying a defendant’s pre-sentencing delays in providing this

information.” Id. at 1106.

   The majority can rightly cite this case as one allowing a first effort at obtaining

safety-valve relief at a resentencing hearing.6 But the case is not persuasive because the

government never contested that issue,7 leaving the court simply to allow it without

analyzing any of § 3553(f)’s language. Rather, the Ninth Circuit focused on whether

Mejia’s efforts to proffer were in “good-faith.” Id. at 1104–08. In addition, the Ninth

Circuit did not need to consider the effect of Acosta-Olivas in its analysis. The same is

true of the majority’s other cases in which the appellate court allowed safety valve

eligibility to be considered for the first time on resentencing absent any objection from

the government. See United States v. Purnell, 361 F. App’x 384, 385–86 (3d Cir. 2010)

(unpublished) (summarily stating that “because Purnell met with law enforcement

authorities following remand, he qualified for the safety valve provision in 18 U.S.C.

§ 3553(f) and U.S.S.G. § 5C1.2(a). . . .”); United States v. DeMott, 513 F.3d 55, 58 (2d

Cir. 2008) (although it is unclear from the opinion when the defendant first sought safety-




   6
      On the other hand, the government could cite Mejia-Pimental for disallowing any
additional disclosures at the latest resentencing on remand: “Therefore, on remand, the
district court must consider whether that final written proffer was in fact truthful and
complete.” Id. at 1109.
   7
    Rather, the government opposed safety-valve relief because the government already
knew the information the defendant would have provided. Id. at 1104–05.

                                             15
valve relief, the court noted that “[t]he government has agreed to allow Day to make an

additional safety valve proffer prior to a second resentencing.”).8

              2. The Majority fails to undermine opposing cases.

   In United States v. Ferret-Castellanos, 108 F.3d 339, 1996 WL 733198 (9th Cir.

1996) (unpublished table decision), a drug-trafficking case, the Ninth Circuit required

that a defendant’s disclosures under § 3553(f) occur before his original sentencing rather

than allowing them before his two resentencings. Id. at *2. It found disclosures made

before the resentencing had come “too late.” Id. The majority dismisses the case as being

more concerned about the defendant’s truthfulness rather than untimeliness of his safety-

valve disclosures. Maj. Op. at 14. I do not read the case that way. After all, the court

identified the issue before it as whether the defendant was ineligible for safety-valve

relief “because he failed to disclose all information and evidence concerning his offense

at his initial sentencing hearing.” Ferret-Castellanos, 1996 WL 733198, at *1. I see

nothing in Ferret-Castellanos suggesting that the defendant’s disclosures at resentencing

were untruthful. I simply see his explaining to the court his reason for delaying disclosure

beyond his original sentencing hearing—“Ferret-Castellanos told the court that ‘for


   8
     Consistent with that, I do not believe that United States v. Washman, 128 F.3d 1305,
1306 (9th Cir. 1997), disallows a defendant from disclosing additional safety-valve
information to the government before a resentencing, despite the district court’s deciding
on remand that it would review safety-valve eligibility on the record as it stood before the
remand. The Ninth Circuit had no reason to analyze the timeliness of pre-resentencing
disclosures because the defendant had not raised that as an issue. Id. at 1308. Similarly,
although United States v. Schreiber, 191 F.3d 103, 106 (2d Cir. 1999), certainly supports
my position when it says that “[t]he plain words of the statute provide only one deadline
for compliance,” I recognize that it concerned the timeliness of safety-valve disclosures
before an initial sentencing and not a resentencing.
                                             16
reasons of family loyalty and/or for legal reasons’ he did not tell the Government prior to

trial that his uncle had given him the car to drive.” Id.

   In addition, the majority tries to undercut Ferret-Castellanos by pointing to Mejia-

Pimental, a later Ninth Circuit case that “appears inconsistent” with it. Maj. Op. at 14 n.3.

I discussed Mejia-Pimental in some detail in the preceding section. Here, I would just

note that Mejia-Pimental first tried to proffer before his original sentencing and then quit

trying until soon before his third sentencing. Mejia-Pimental, 477 F.3d at 1102-03. The

government did not challenge as untimely his attempt to gain safety-valve eligibility. Id.

at 1103. Accordingly, the district and appellate court simply plowed forward without ever

really considering the question. While I agree that the case does involve a defendant who

tried to re-proffer at resentencing, I do not put much stock in the case as establishing a

right to do so. Without the government’s objecting to timeliness, and without any

analysis from the Ninth Circuit on that issue, I hesitate to treat Mejia-Pimental as more

persuasive than Ferret-Castellanos, when Ferret-Castellanos at least resolved the issue

after the government objected to the timeliness of the defendant’s disclosure of

information.

   I also downplay Mejia-Pimental’s persuasiveness because it cited—but did not

discuss—another published Ninth Circuit decision speaking to our issue. In United States

v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996), Real-Hernandez was charged with

offloading 13 duffel bags containing 971 pounds of marijuana. Id. at 358. Real-

Hernandez pleaded guilty and, at his debriefing, he denied knowing that he had offloaded

marijuana. Id. Two months later, Real-Hernandez was charged in a second case with

                                              17
loading about 1,800 pounds of marijuana on a boat two years earlier. Id. At his

sentencing in the first case, Real-Hernandez sought safety-valve relief. Id. The

government opposed this, pointing to the conduct underlying the second charge to show

that at his proffer Real-Hernandez had not fully disclosed his criminal conduct. Id. at 359.

Because Real-Hernandez was innocent until proven guilty, the court continued the

sentencing hearing in the first case until the second case was resolved. Id.

   Four months later, Real-Hernandez pleaded guilty in the second case a day after

proffering to a separate government attorney and winning a safety-valve recommendation

from him in the second case. Id. at 359. At his sentencing for the first case, the

government argued that it was too late for Real-Hernandez to qualify for safety-valve

relief. Id. Although the opinion is unclear on this point, it says that the district court

agreed, stating that it would not “exercise the prerogative . . . to go below the mandatory

minimum in this case.” Id. at 360. The Ninth Circuit noted that it had “held in similar

circumstances that such reasoning does not permit meaningful appellate review.” Id.

(citations omitted). Because the district court had not given reasons for denying safety-

valve relief, the Ninth Circuit vacated the sentence and remanded for resentencing. Id.

   As I read Real-Hernandez, the court remanded for the district court to determine

whether he had fully disclosed information under § 3553(f)(5) at the time of his original

sentencing. It held that “on remand Real-Hernandez must show that he ‘truthfully

provid[ed] to the Government all information and evidence [he] ha[d] concerning the

offense or offenses.’” Id. at 362. The court looked to the date of the original sentencing

(April 17, 1995) to establish the “time of sentencing” under § 3553(c) and just a few lines

                                               18
later referred to “at sentencing” under § 3553(f). Id. at 360. Nothing suggests that the

court thought its ordered resentencing hearing would fit under § 3553(f)(5)’s “not later

than the time of the sentencing hearing” requirement, or allowed further disclosures of

safety-valve information on remand. Based on Real-Hernandez, I cannot share the

majority’s appraisal of Mejia-Pimental.9

                                     III.   Conclusion

   I agree with the majority that § 3553(f) applies at resentencing hearings with the same

force as at initial sentencing hearings. Accordingly, I agree that a district court must

consider a defendant’s request for safety-valve relief, even if first made before

resentencing. But I believe that a defendant is stuck with whatever information he

disclosed before the original sentencing hearing started. Because Figueroa offered no

safety-valve disclosures to the government before that time, the district court correctly

denied Figueroa’s safety-valve request at the resentencing hearing. For the foregoing

reasons, I respectfully dissent.




   9
     The majority cites one case opposing its interpretation of § 3553(f)(5). Maj. Op. at
13 n.2. In United States v. Giraldo, 52 F. App’x 584, 585–88 (3d Cir. 2002)
(unpublished), the Third Circuit rejected the defendant’s argument that he could make a
timely proffer at resentencing, when the defendant first requested safety-valve relief. At
the same time, the Third Circuit looked to its own mandate rule to conclude that, “under
the circumstances presented . . . [the defendant] waived his ability to avail himself of the
Safety Valve provision.” Id. at 587–88.
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