           Case: 12-14854    Date Filed: 09/24/2013   Page: 1 of 7


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14854
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:11-cr-20774-JAL-2


UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,


                                   versus


ERNESTO FONSECA,

                                                        Defendant - Appellant.

                      ________________________

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

                            (September 24, 2013)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Ernesto Fonseca appeals his sentence of 108-months imprisonment for

conspiracy to possess with intent to distribute methamphetamine and attempted

possession with intent to distribute methamphetamine, both in violation of 21

U.S.C. § 846. He argues the district court clearly erred in denying him relief under

the “safety valve” provisions of 18 U.S.C. § 3553(f) and United States Sentencing

Guidelines (USSG) § 5C1.2. Fonseca also argues that the district court abused its

discretion by not permitting his counsel to testify at the sentencing hearing, which

he claims would have harmonized the apparent inconsistency in his statements.

          I.      BACKGROUND AND PROCEDURAL HISTORY

      Immediately after Fonseca’s arrest, he told Drug Enforcement Agency

(DEA) agents that Jorge Pena supplied him with the methamphetamine. At a later

counseled debriefing interview, Fonseca told the government that he received the

drugs from his cousin, Juan Carlos Romero. Fonseca admits that he “originally

told the police he received the drugs from Pena, and he did not identify Romero as

the drug source until his later debriefing.”

      Agent Daniel Summers was the lead agent in the case against Fonseca and

his co-defendants. At sentencing, Agent Summers testified that during Fonseca’s

debriefing interview, Fonseca said that Romero gave him the drugs so that he

“could sell the crystal methamphetamines and make money on his own.” Agent

Summers also testified that during the course of his investigation, he learned that


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the original plan was for Fonseca to sell the drugs. After Fonseca was unable to

sell the drugs, Fonseca called Romero. Romero then told Fonseca to give the

drugs to Pena.

      Fonseca submitted certain statements to the sentencing court. In

Defendant’s Exhibit 4, Fonseca said that the original plan was for Fonseca to give

the drugs to Pena. The sentencing judge concluded that Fonseca provided

“contradictory statements” because Fonseca said during his debriefing that he was

to sell the methamphetamine himself, and that when he could not do so, Romero

told him to give the drugs to Pena. The sentencing judge found that this statement

during debriefing contradicted Fonseca’s statement in Defense Exhibit 4, where

Fonseca said the plan was always to give Pena the drugs. Based on this, the

sentencing judge found that Fonseca was not eligible for safety-valve relief

because he did not meet his burden of showing that he provided truthful and

complete information to the government. Fonseca appeals, arguing that the

sentencing judge made clearly erroneous factual findings about Fonseca’s

statement during his debriefing.

                                  II.   DISCUSSION

      Pursuant to 18 U.S.C. § 3553(f), a sentencing court “shall impose a sentence

pursuant to the guidelines promulgated by the United States Sentencing

Commission . . . without regard to any statutory minimum sentence, if the court


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finds at sentencing, after the Government has been afforded the opportunity to

make a recommendation,” that all five of the factors listed in USSG § 5C1.2 are

present. Here we consider only the last safety-valve factor, which requires the

defendant to show that “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.” USSG § 5C1.2. “This final

factor is a tell-all provision: to meet its requirements, the defendant has an

affirmative responsibility to truthfully disclose to the government all information

and evidence that he has about the offense and all relevant conduct.” United States

v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004) (quotation marks omitted); see

also United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997) (“A defendant

has the burden of proving his eligibility for relief under § 5C1.2.”). We review the

district court’s factual findings under this section for clear error. Johnson, 375

F.3d at 1302.

                                          A.

      Fonseca asserts that the sentencing judge based his decision not to award

“safety valve” relief on “demonstrably inaccurate factual findings” concerning

Fonseca’s truthfulness in post-arrest statements. Specifically, Fonseca claims that

the sentencing judge committed error by finding that Fonseca made several


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statements during his debriefing after being taken into custody, when there was

actually “minimal evidence” about what he said.

      First, Fonseca challenges the sentencing judge’s finding that Fonseca told

the agents at his debriefing that he was approached by Romero. However, there

was evidence to support the sentencing judge’s finding in that regard. Indeed,

Agent Summers testified that Fonseca told agents at his debriefing that Romero

supplied the drugs.

      Second, Fonseca argues that the sentencing judge erroneously found he

made statements at his debriefing that he only sold/turned over drugs to Pena after

he was unable to sell the drugs otherwise, and after Romero instructed him to give

the drugs to Pena. In fact, Agent Summers testified that at the debriefing, Fonseca

originally said that Pena was the supplier, but then later conceded that Romero was

the supplier. Agent Summers then clarified to the court that Fonseca explained

that Romero told Fonseca to give Pena the drugs after Romero discovered that

Fonseca couldn’t sell the drugs otherwise. And there was also Fonseca’s written

statement that contradicted these facts by saying that Romero told Fonseca to give

the drugs to Pena from the start.

      On this record, the district court did not clearly err in its finding that Fonseca

failed to provide a true and complete proffer and that his statements were

contradictory and equivocal.


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                                           B.

      Nevertheless, Fonseca argues that the district court abused its discretion in

not allowing his counsel to testify, which would have cleared up the alleged

inconsistencies.

      We review all evidentiary decisions in the district court for abuse of

discretion. United States v. Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). A

district court abuses its discretion if the district court’s evidentiary decision was

based on a clearly erroneous finding of fact, an errant conclusion of law, or an

improper application of law to fact. United States v. Baker, 432 F.3d 1189, 1202

(11th Cir. 2005). Even if we determine that the district court abused its discretion,

we will only overturn an evidentiary ruling if it resulted in a substantial prejudicial

effect. United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004).

      At sentencing, the district court has the discretion “to determine the kinds

and form of information it will consider” to hand down the appropriate sentence.

United States v. Giltner, 889 F.2d 1004, 1008 (11th Cir. 1989) (per curiam). Due

process requires that the defendant have the opportunity to refute the information

brought against him at sentencing, but he does not necessarily have the right to call

and cross-examine every possible witness. Id.

      Given the district court’s wide latitude in conducting evidentiary rulings, we

cannot say that the district court abused its discretion in not allowing Fonseca’s


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counsel to testify. This is especially true where, as here, the court already had

plenty of other evidence on which to base its ruling. Neither can we say that this

decision generated a substantial prejudicial effect based on the breadth of

inconsistencies in Fonseca’s statements that has already been discussed. See Part

II(A), supra.

      For these reasons, we affirm.

      AFFIRMED.




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