             United States Court of Appeals
                        For the First Circuit


No. 07-2372

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                          JOSÉ PADILLA-COLÓN,

                         Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF PUERTO RICO

          [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                                Before

                  Torruella and Lipez, Circuit Judges,
                    and DiClerico, District Judge.*


     Hector L. Ramos-Vega, Assistant Federal Public Defender, with
whom Joseph C. Laws, Jr., Federal Public Defender, was on brief,
for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, was on brief,
for appellee.



                             July 31, 2009




     *
         Of the District of New Hampshire, sitting by designation.
             LIPEZ, Circuit Judge. José Padilla-Colón ("Padilla") was

charged with one count of possession with intent to distribute 7.1

grams of cocaine base, or "crack," in violation of 21 U.S.C. §

841(a)(1), (b)(1)(B)(iii).        Pursuant to a plea agreement, Padilla

pled guilty and waived his right to appeal.                 At sentencing the

district court determined that Padilla did not qualify for the

"safety valve" provision, 18 U.S.C. § 3553(f), and thus was subject

to a mandatory minimum sentence of five years.             On appeal, Padilla

argues that the district court erred in finding that he did not

meet the requirements of the safety valve, and that, despite the

waiver, the plea agreement does not bar his appeal.              Applying the

test established in United States v. Teeter, 257 F.3d 14, 24-26

(1st Cir. 2001), we find that the waiver of appeal is invalid.

However, because the district court did not err in denying Padilla

the benefit of the safety valve, we affirm the sentence.

                                        I

             Where an appeal follows a guilty plea, we draw the facts

from   the    plea   colloquy,    the       unchallenged    portions    of   the

presentence    investigation      report,     and   the    transcript   of   the

sentencing hearing.     United States v. Mercedes Mercedes, 428 F.3d

355, 357 (1st Cir. 2005).        In this case we also rely on the signed

statement of facts accompanying the appellant's plea agreement.




                                     -2-
See United States v. Laguna-Estela, 394 F.3d 54, 55 (1st Cir.

2005).

                After receiving a telephone call from a source claiming

that Padilla was armed and stored weapons for another individual,

Puerto Rico police surveilled his property on January 20 and 24,

2006.        On both occasions, they observed Padilla carrying a weapon

in his waistband.1       On the second occasion, they saw him holding a

bag from which the barrel of a rifle was protruding.           He was also

observed getting into and out of his car, a white Suzuki Vitara.

On February 3, police executed a search warrant for Padilla's home

and car.        While searching the vehicle, officers discovered a gym

bag containing 160 vials of crack and 121 rounds of .40 caliber

ammunition.

                On May 24, 2006, a federal grand jury returned a two-

count indictment against Padilla, charging him with possession with

intent        to   distribute   several    controlled   substances.     At

arraignment, Padilla pled not guilty and then moved to suppress the

evidence recovered in the search of his car.            After the district

court denied the motion, Padilla and the government executed a plea

agreement on November 30. Under its terms, the government promised

to move to dismiss the indictment. Padilla would then plead guilty

to an information charging him with one count of possession with



        1
            The visual display of a firearm is a crime under Puerto Rico
law.        See P.R. Laws Ann. tit. 25, § 456a(d)(1).

                                     -3-
intent to distribute 7.1 grams of crack.             Padilla also agreed not

to appeal his sentence, as long as the district court "accept[ed]

[the plea] agreement and sentence[d] him according to its terms and

conditions."

            Based on the quantity and kind of drugs recovered, the

plea agreement calculated Padilla's base offense level under the

Sentencing     Guidelines   as    26,    but     identified    reductions    for

acceptance of responsibility and compliance with the safety valve,

resulting in an adjusted base offense level of 21.                 The agreement

then stated,

            A total base offense level of 21 and a
            Criminal History Category I results in a
            guideline sentencing range of 37-46 months.
            In the event the defendant fails to comply
            with all of the provisions of the safety
            valve, the adjusted base offense level remains
            at 23 which has a corresponding imprisonment
            range of 46-57 months.     As the parties are
            aware, however, for possession of five (5)
            grams or more of cocaine base the statutory
            penalty   is   not   less   than  five   years
            imprisonment.

Shortly   thereafter,   the      agreement      specified    the   safety   valve

requirements and noted, "Should defendant meet all the requirements

of the 'safety valve' provisions . . . , defendant's Base Offense

Level shall be reduced by two (2) levels."

            A change-of-plea hearing was held on November 30. At the

hearing, the magistrate judge inquired into Padilla's understanding

of the sentencing recommendation.             At the magistrate's request, an

Assistant    United   States      Attorney       explained     the    sentencing

                                        -4-
guidelines calculation and the maximum penalties possible for the

offense, including the mandatory minimum sentence of five years.

He discussed the safety valve reduction, explaining,

           should [Padilla] comply with all of the
           provisions of the safety valve, he is also
           looking at an additional two (2) point
           reduction . . . . The Defendant understands
           that should he fail to meet safety valve, then
           of course he is looking at a base offense
           level of 23 . . . .             All of that
           notwithstanding Judge, there is a five (5)
           years [sic] mandatory minimum . . . .

The   magistrate   judge   confirmed    that   Padilla    understood    the

explanation, asking,

           Do you understand that in order to be entitled
           to the two (2) level reduction under the safet
           [sic] valve, you shall comply with five (5)
           requirements, as stated in paragraph nine (9)
           of your plea agreement, [including the
           requirement that you] must have provided
           truthful information to the Government prior
           to sentencing?

Padilla answered affirmatively.

           The     magistrate   judge     inquired       into      Padilla's

understanding of his waiver of appellate rights. After identifying

the waiver and reading its terms to Padilla, she asked, "Are you

aware that depending on the facts the court finds and the sentence

it eventually imposes, both you and the Government may appeal the

sentence in this case subject to that waver [sic]?"             Padilla said

he was so aware, and then entered his guilty plea.         The magistrate

judge found that Padilla knew the terms of the plea agreement and

had entered it "in an intelligent and voluntary manner."            See Fed.

                                  -5-
R. Crim. P. 11(b).        She filed her Report and Recommendation on

December 11, 2006, recommending that the district court accept

Padilla's guilty plea. On December 21, the district court accepted

the plea.

            In April 2007, two DEA agents and an Assistant United

States Attorney interviewed Padilla as part of the safety valve

process. During the interview, Padilla told the agents that he did

not own the gym bag seized from his car in the February 3, 2006

search.   He had stolen it the night before, he said, from the trunk

of an abandoned car, where it had been stored by local drug dealers

who owed him money.       Padilla had previously observed the dealers

place drugs and money in a bag and hide the bag in the car trunk.

Believing that the bag would contain money, he retrieved it from

the   trunk;   instead,   it    contained   only   drugs   and   ammunition.

Padilla did not know what to do with the contraband, and the next

morning it was seized by police.       Before the interview ended, the

Assistant United States Attorney expressed some skepticism to

Padilla about his story.

            In a sealed motion filed with the district court soon

after, the government indicated that it found Padilla's testimony

"not totally truthful."        Several of Padilla's claims, prosecutors

said, lacked credibility: that he stole the gym bag from drug

dealers, that he had never possessed it before being arrested by

Puerto Rico police, and that he had never sold drugs or possessed


                                     -6-
a weapon.    The claims conflicted with the sworn affidavit of a

Puerto Rico police officer, Agent Héctor Figueroa-Velázquez ("Agent

Figueroa"), who had surveilled Padilla in January 2006.     Because

Padilla had not been totally truthful, the government said, he did

not qualify for the safety valve reduction.       In his response,

Padilla emphasized that he had provided extensive detail to the

government agents about how he knew where the bag was, what it

might contain, and who owned it.   He pointed out that his story was

consistent with other facts in the record and was corroborated in

part by the DEA agents present at the safety valve interview.    In

contrast, Padilla claimed, the government had produced no evidence

proving that he had been untruthful.   Prosecutors simply found his

story hard to believe.

            On June 22, 2007, the district court issued a sealed

order finding Padilla ineligible for safety valve benefits.     The

court observed that Padilla had "had trouble with his version [of

the facts] since his interview with the U.S. Probation Officer,"

one month before the safety valve debriefing.   Padilla had changed

several parts of his story in response to questions raised by the

Probation Officer.   Padilla repeated the changed story to the DEA

agents and the Assistant United States Attorney during his safety

valve interview.     Moreover, the story contradicted the sworn

affidavit of Agent Figueroa.




                                -7-
           At his sentencing hearing on August 2, 2007, Padilla

moved the district court to reconsider its order denying him the

benefit of the safety valve.      In response to the court's concern

that Padilla's story contradicted the sworn testimony of a police

officer, Padilla emphasized that he had long maintained that Agent

Figueroa lied in the affidavit, having moved on those grounds to

suppress   the   evidence   obtained    from   the   search   of   his   car.

Moreover, Padilla insisted that he had only clarified his story in

response to doubts from the Probation Officer, not changed it.             As

early as February 3, 2006, after he was arrested, and May 12, 2006,

in his preliminary hearing, Padilla had stated that he stole the

bag containing the drugs -- the same testimony he provided in the

safety valve interview.     Finding nothing new in Padilla's request,

the court denied the motion.

           Before sentencing Padilla, the court returned to his

waiver of appeal.    It noted,

           Mr. Padilla, although you pled guilty and
           pursuant to the terms of your plea agreement
           you waived your right to appeal the judgment
           and the sentence imposed in this case, the
           Court advises you that you can appeal your
           conviction if you believe that your plea of
           guilty was unlawful or involuntary, or if
           there is some other fundamental defect in the
           proceedings that was not waived by your plea
           agreement.

The court then sentenced Padilla to the statutory mandatory minimum

of five years' imprisonment.     See 21 U.S.C. § 841(b)(1)(B)(iii).



                                  -8-
                                 II

            Padilla appeals his sentence.   Recognizing the potential

obstacle posed by the waiver of appeal in his plea agreement, he

asks that we not honor it because his claim falls outside its scope

and the waiver is invalid. As a substantive matter, he argues that

the district court erred in denying him the benefits of the safety

valve.   The government contests both claims.      Because Padilla's

right to seek relief from his sentence in this court turns on the

validity of the waiver of appeal, we determine the waiver's effect

before considering the substantive claim.       See United States v.

Edelen, 539 F.3d 83, 85 (1st Cir. 2008).

A. Waiver of Appeal

            We enforce a waiver of appeal if it is valid and the

defendant's claim lies within its scope.       See United States v.

Acosta-Roman, 549 F.3d 1, 3 (1st Cir. 2008); United States v.

McCoy, 508 F.3d 74, 77 (1st Cir. 2007) ("Even a knowing and

voluntary appeal waiver only precludes appeals that fall within its

scope.").     In this case, because we find that the waiver is

invalid, we need not reach the question of whether the defendant's

appeal falls within its scope.

            A waiver of appellate rights is valid if the defendant

entered into it knowingly and voluntarily.     United States v. Gil-

Quezada, 445 F.3d 33, 36 (1st Cir. 2006).     We determine whether a

waiver was knowing and voluntary by applying the three-prong test


                                 -9-
announced in Teeter, 257 F.3d at 24.            Under this test, an appellate

waiver is valid as long as: (1) the written plea agreement contains

a clear statement elucidating the waiver and delineating its scope;

(2) at the plea hearing the district court inquired specifically

about any waiver of appellate rights, and its interrogation of the

defendant sufficed to ensure that the waiver was knowing and

voluntary; and (3) the denial of the right to appeal would not

constitute a miscarriage of justice.             See Teeter, 257 F.3d at 24-

25.

             The written plea agreement satisfies the first prong of

the Teeter test.         The language of the waiver itself elucidates the

right being waived by the defendant, namely, the "right to appeal

the judgment and sentence."           The scope of the waiver is limited to

"this   case"      and    to   any   sentence    consistent    with   the   plea

agreement's terms and conditions. We have previously held that the

same language satisfied the first Teeter prong.               Gil-Quezada, 445

F.3d at 36; United States v. De-La-Cruz Castro, 299 F.3d 5, 10 (1st

Cir. 2002).       Padilla does not contend otherwise.

             The second prong of Teeter requires us to examine the

transcript of the colloquy between the court and the defendant at

the change-of-plea hearing.           Teeter, 257 F.3d at 24.     Our focus in

doing   so   is    "to    ascertain    whether   the   court's   interrogation

suffices to ensure that the defendant freely and intelligently

agreed to waive her right to appeal her forthcoming sentence."


                                       -10-
Id.; see also De-La-Cruz Castro, 299 F.3d at 10.                         As Federal Rule

of Criminal Procedure 11(b)(1)(N) requires, the colloquy must

include a specific inquiry "into any waiver of appellate rights."

Teeter, 257 F.3d at 24.            In explaining the extent of the waiver and

what   right    of       appeal    remains,    if       any,   the     court    "should    be

especially careful in its choice of words, taking pains to explain

to the defendant that her right to appeal is circumscribed by her

preexisting waiver."              Teeter, 257 F.3d at 25.               Context is also

important      in    determining      whether       a    statement      is     sufficiently

misleading to nullify a waiver.                See United States v. Soto-Cruz,

449 F.3d 258, 261 (1st Cir. 2006) ("The context in which such a

statement is made is important to our determination . . . ."); De-

La-Cruz Castro, 299 F.3d at 11-12 ("Context is important . . . .");

Teeter, 257 F.3d at 24-25.

             Padilla argues that statements by the court during his

change-of-plea and sentencing hearings were so misleading that they

abrogated his waiver of appeal. During the change-of-plea hearing,

the magistrate judge asked Padilla whether he understood that

"depending on the facts the court finds and the sentence it

eventually imposes, both you and the government may appeal the

sentence in this case subject to that waver [sic]?" Padilla points

out that the court posed this question shortly after explaining

that   the     guidelines         sentencing     range         would     depend    on     his

satisfaction        of    the     safety-valve      requirements,         including       the


                                          -11-
interview. In this context, he says, his affirmative answer to the

judge's question meant that he understood that he would retain the

right to appeal if the district court found that he was ineligible

for the safety valve.       Padilla suggests that his misunderstanding

was subsequently "compounded" by the district court at sentencing,

when it stated that Padilla could appeal if he believed his guilty

plea "was unlawful or involuntary," or there was "some other

fundamental defect in the proceedings that was not waived by [the]

plea agreement."

           We agree that, taken in context, the court's statement at

the change-of-plea hearing was so misleading that it nullified

Padilla's waiver of appeal. The court's choice of language -- that

Padilla could appeal "depending on the facts this court finds" --

reasonably suggested to Padilla that he retained a right to appeal

adverse factual findings.      The context of the statement reinforced

this view.     Because the statement closely followed the court's

explanation of the safety-valve, the phrase "the facts this court

finds" could reasonably have been understood by Padilla to refer to

safety-valve eligibility, and, in particular, to a finding that he

had failed to provide truthful information to the government.              In

such a context, the magistrate judge's statement that Padilla could

appeal "depending on the facts this court finds" suggested that he

retained   a   right   to   appeal   an     adverse   determination   of   his

eligibility for safety-valve relief.


                                     -12-
                This suggestion by the court, rather than illuminating

the meaning of the written waiver of appeal, contradicted its

terms, which are not similarly limited in language or effect.                  By

its terms, Padilla's waiver covers appeals of his judgment and

sentence, and applies as long as the district court sentences him

according to the terms and conditions of the plea agreement.                  The

terms of the plea agreement do not guarantee Padilla that he will

be found eligible for safety-valve relief.                Thus, Padilla waived

his right to appeal his sentence regardless of whether the court

found him eligible for the safety valve.                 See Acosta-Roman, 549

F.3d       at   4   (discussing   the   terms   of   a   similar   waiver).    By

suggesting that Padilla retained appellate rights in the event of

an adverse finding of safety-valve eligibility, the plea colloquy

was so misleading that we cannot regard Padilla's waiver as knowing

and voluntary.2

                We therefore decline to enforce Padilla's waiver of

appeal.         Because there is no need to reach the third prong of

Teeter, we now turn to the substantive claim on appeal.




       2
       Because we conclude that the statement made at the change-
of-plea hearing "mudd[ied] the waters," see Teeter, 257 F.3d at 25,
we need not reach the issue of the court's statement at sentencing.

                                        -13-
B. Safety Valve Eligibility

           1. General principles

           The standard of review applicable in safety-valve appeals

"varies according to the foundation upon which [the safety-valve]

determination is based."      United States v. Matos, 328 F.3d 34, 38

(1st Cir. 2003).    We review de novo safety-valve determinations to

the extent they rest on conclusions of law.         Id.    We review for

clear error safety-valve determinations to the extent they depend

on findings of fact.    Id.   The clear error standard is "extremely

deferential."    United States v. Bermúdez, 407 F.3d 536, 542 (1st

Cir. 2005) (citing United States v. Marquez, 280 F.3d 19, 26 (1st

Cir. 2002)).     Under it, "an appellate court ought not to disturb

either findings of fact or conclusions drawn from the record unless

the whole of the record compels a strong, unyielding belief that a

mistake has been made."        Bermúdez, 407 F.3d at 542 (internal

quotation marks and citation omitted).           Evaluation of witness

testimony is reviewed for clear error, since it involves "fact-

sensitive judgments and credibility calls." Matos, 328 F.3d at 40.

           The   "safety   valve"    provision   exempts   certain   drug

offenders from mandatory minimum sentences.           See 18 U.S.C. §

3553(f); U.S.S.G. § 5C1.2.       Congress's purpose in enacting the

provision was to "mitigate the harsh effect of mandatory minimum

sentences" on first-time, low-level offenders in drug trafficking

schemes.   United States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st


                                    -14-
Cir. 2000).3       To qualify for relief under the safety valve, a

defendant must meet five requirements. See 18 U.S.C. § 3553(f)(1)-

(5).       Only the last requirement is at issue here.4     Under it, the

defendant      must   "truthfully   provide[]   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."       See 18 U.S.C. § 3553(f)(5).     "'[N]othing

short of truthful and complete disclosure will suffice.'"          United


       3
       According to a House Report on the matter, while sentence
reductions for mitigating factors were available to the most
culpable, they did not operate to the benefit of the least
culpable, whose guideline sentences already fell below the
applicable mandatory minimums. See H.R. Rep. No. 103-460 (1994),
cited in United States v. Miranda-Santiago, 96 F.3d 517, 527 n.22
(1st Cir. 1996). In response, the House sought to exempt a "narrow
class" of drug defendants -- those least culpable -- from the
mandatory-minimum sentencing scheme. Id.
       4
           The first four requirements are:

       (1) the defendant does not have more than 1 criminal
       history point, as determined under the sentencing
       guidelines;
       (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 section 408
       of the Controlled Substances Act . . . .

18 U.S.C. § 3553(f)(1)-(4).
     The appellant asserts in his brief that the government does
not contest his satisfaction of the first four safety-valve
requirements. The government appears to agree.

                                    -15-
States v. Rodriguez-Ortiz, 455 F.3d 18, 25 (1st Cir. 2006) (quoting

Matos, 328 F.3d at 38).         The defendant bears the burden of proving,

by a preponderance of the evidence, that he has satisfied this

requirement. See Miranda-Santiago, 96 F.3d at 529 n.25 (discussing

all five requirements under § 3553(f)).                       We now turn to the

specific claims of error, both of law and fact, raised by Padilla.

             2. Legal claims

                      a. Burden of proof

             Padilla argues that the defendant's burden of proof "does

not arise until the government has made some preliminary showing,

based   on   something       more    than    opinion     or   disbelief,   that   the

[safety-valve] proffer is incomplete or untruthful." Here, Padilla

says, the government simply asserted to the district court that it

found Padilla's story implausible. Taken alone, he argues, such an

assertion is insufficient to support a finding that Padilla was

untruthful.

             There is no support in our law for the proposition that

the   government      must    make    a     "preliminary      showing"   before   the

defendant's burden of proof arises.                    The cases cited by the

defendant establish only that "when the record, taken as a whole,

will not support a finding that the defendant has failed to provide

a   truthful    and    complete       proffer,     the     government's    lack   of

confidence in the proffer is insufficient, in and of itself, to

justify a denial of access to the safety valve."                 Marquez, 280 F.3d


                                          -16-
at 24; see United States v. White, 119 F.3d 70, 73-74 (1st Cir.

1997); Miranda-Santiago, 96 F.3d at 529.            Where the record does

provide some support, "a sentencing court may reject a safety valve

proffer   based   on   its   reasoned    assessment   of    the    defendant's

credibility in light of the facts."               Marquez, 280 F.3d at 24

(citing White, 119 F.3d at 74).      It need not base its determination

on "independent rebuttal evidence" introduced by the government.

Id.

           Within this framework, a defendant's insistence that he

has provided truthful and complete information does not necessarily

overcome an unfriendly record.          See id. at 24-25 (observing that

otherwise, "district courts would be bound to accept even the most

arrant nonsense from a defendant's mouth so long as the government

could not directly contradict it by independent proof," in effect

"turn[ing] the burden of persuasion inside out").                 Rather, when

faced with a defendant who insists that he proffered truthful

information,   the     sentencing   court   may    make    its    own   reasoned

determination, in light of the facts on record, whether to credit

the defendant's assertion. See United States v. Bravo, 489 F.3d 1,

12 (1st Cir. 2007) (upholding rejection of admittedly "consistent"

story in light of agent's testimony that it was "illogical");

Rodriguez-Ortiz, 455 F.3d at 25 (upholding denial of safety valve

where district court did not credit defendant, who "simply den[ied]

the charges against him," in light of his contradiction by record


                                    -17-
evidence); Marquez, 280 F.3d at 24-25.           In the present case, the

sentencing court followed precisely this method, identifying in its

order specific facts on the record, see supra section I, in light

of which the court refused to credit Padilla's assertion that he

provided truthful information.

                   b. Proper basis for safety-valve determination

           Padilla argues that the sentencing court erred in basing

its   determination     on   information    other   than   the   safety-valve

proffer itself, namely, an earlier interview conducted by the case

Probation Officer.      That interview, he says, was conducted "only

for acceptance of responsibility purposes."            As such, it was "more

limited"   than   the    safety-valve      interview    and   should   not   be

considered.

           Once again Padilla fails to adduce any legal authorities

in support of his position.       In fact, sentencing courts assessing

eligibility for the safety valve routinely rely on a variety of

record materials in determining whether a defendant has provided

truthful and complete information.          See Bermúdez, 407 F.3d at 542

(upholding determination based on comparison between safety-valve

proffer and testimony at trial of co-defendant); Marquez, 280 F.3d

at 24 (noting "internal inconsistencies between the proffer and

other statements that the [defendant] himself had made"); Matos,

328 F.3d at 40 (upholding district court's determination in light

of "other evidence that can be gleaned from the record").              There is


                                    -18-
no sensible reason to limit the assessment of truthfulness to the

safety-valve proffer itself.         Inconsistencies between statements

made during the proffer and statements made to the authorities on

other occasions are not necessarily disqualifying.            But the court

may legitimately consider such inconsistencies in deciding on the

truthfulness of the proffer.

             3. Factual claims

             Padilla argues that the district court committed clear

error   in   finding   that   his   safety-valve   proffer    had    not   been

truthful.     He makes several discrete challenges.

                      a. The change in Padilla's story

             Padilla argues that the district court clearly erred in

concluding that he had changed his account of the offense.                  We

disagree.      Even    assuming,    arguendo,   that   the   two    interviews

differed in purpose, as Padilla argues, that difference cannot

account for the material alterations Padilla made to his story on

retelling.     According to Padilla's initial account, he stole the

bag containing the contraband when he was "visiting a friend [and]

observed a man hiding a gym bag in the trunk of a vehicle."                 He

stole it "thinking that maybe it was full of cash."                 After the

Probation Officer expressed concern that Padilla had not provided

her with "complete, accurate and truthful information," Padilla

told a different story.       He stated that he knew the owners of the

bag, that they owed him $5,000, and that they had failed to pay him


                                     -19-
back.   During his safety-valve interview, he also stated that he

had previously purchased drugs from the owners of the bag and that

he expected the bag to contain drugs when he stole it.   Even if the

rough outlines of the two stories are consistent, the details and

their implications differ markedly, and it cannot be clear error

for a sentencing court to take note of such differences and find in

those differences a lack of truthfulness.

                 b. Agent Figueroa's affidavit

          Padilla argues that the sentencing court committed clear

error by crediting Agent Figueroa's affidavit. Again, we disagree.

To be sure, Padilla has long insisted that Agent Figueroa falsified

his affidavit.   On the basis of this allegation and the required

preliminary showing, Padilla obtained a hearing under Franks v.

Delaware, 438 U.S. 154 (1978), to determine the validity of the

February 3, 2006 search warrant, which was based on the affidavit.

In her Report and Recommendation, the magistrate judge who presided

over the Franks hearing identified several reasons to question the

veracity of Agent Figueroa's affidavit.   Yet the magistrate judge

also credited Agent Figueroa's testimony during the hearing, noting

that he was "forthright in demeanor" and that "some evidence . . .

corroborated Figueroa's version of events."   She ultimately upheld

the validity of the search warrant, and submitted Proposed Findings

of Fact based on Agent's Figueroa's testimony.    In light of this

outcome and the substance of the magistrate judge's report, we


                               -20-
cannot conclude that the district court committed clear error in

giving the affidavit the weight that it did.              See Matos, 328 F.3d

at 40-41 ("[W]hen more than one sensible interpretation . . . can

supportably be drawn, a sentencing court's decision to credit one

alternative     and     reject     another   cannot    be    deemed      clearly

erroneous.").     Taking the measure of a sworn statement in view of

its attempted impeachment is typical fact-finding, and the record

simply does not compel a "strong, unyielding belief that a mistake

has been made."       See Bermúdez, 407 F.3d at 542 (internal quotation

marks and citation omitted).

                      c. The bag

          Lastly,       Padilla     argues   that   the     sentencing     court

committed clear error by determining that the bag seized from his

car during the February 3, 2006 search was the same bag Agent

Figueroa observed Padilla using to carry a rifle on January 24,

2006.   It is true that the bag described in Agent Figueroa's

affidavit was "blue and grey," while the bag discovered in the

search of Padilla's automobile is described as being simply blue.

However, the colors and features of the bags are not so dissimilar

that it amounts to clear error to conclude that they were the same.

The court might have discounted Agent Figueroa's testimony that the

bag observed on January 24 was blue and grey, and not entirely

blue, on the basis of his line of sight -- a matter thoroughly

discussed during the Franks hearing.                Agent Figueroa himself


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testified that the bags were similar, although he was unsure

whether they were the same.        In light of the descriptions of the

bags, the court's determination that they were the same was not

clear error.

                    d. Summary

           As the record reveals, the story Padilla told at his

safety-valve debriefing differed in material respects from Agent

Figueroa's affidavit.      Padilla denied ever possessing a weapon,

while Agent Figueroa stated that he observed Padilla with three

weapons.    Moreover, Padilla altered his own account of how he

acquired the bag of drugs and ammunition seized from his car during

the February 3, 2006 search.         There were no clear errors in the

district court's specific factual findings, as set forth in its

order   rejecting   Padilla's      eligibility   for   the   safety    valve.

District   courts   may   reject    safety-valve   proffers    based    on   a

"reasoned assessment of the defendant's credibility in light of the

facts" on record.      Marquez, 280 F.3d at 24.        Such was the case

here.

           Affirmed.




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