                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2008

USA v. Holguin
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5126




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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 05-5126



             UNITED STATES OF AMERICA

                             v.

              FE DEL CARMEN HOLGUIN,

                                        Appellant.


       On Appeal from the United States District Court
                 for the District of Delaware
                    (No. 04-cr-00144-13)
          District Judge: Hon. Joseph J. Farnan, Jr.


         Submitted Under Third Circuit LAR 34.1(a)
                    December 7, 2007

Before: MCKEE, CHAGARES, and HARDIMAN, Circuit Judges.

                  (Filed: January 30, 2008)



                OPINION OF THE COURT
CHAGARES, Circuit Judge.

       Fe Del Carmen Holguin appeals the sentence the District Court imposed on her

after she pled guilty to possession with the intent to distribute 100 grams or more of

heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). Holguin contends that the

District Court erred in denying her a safety valve reduction which could have prevented

the imposition of the mandatory minimum five year imprisonment term. Because we find

that Holguin did not truthfully provide the Government with all the information and

evidence she had concerning the relevant offense, we will affirm the District Court’s

decision.

                                             I.

       As we write only for the parties, our statement of the facts is brief. On January 13,

2005, a Grand Jury in the District of Delaware charged Holguin and twelve co-defendants

in a superseding indictment arising out of a large-scale heroin trafficking conspiracy.

Holguin was charged in Count One with conspiracy to distribute more than one kilogram

of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and in Count Seven with

possession with the intent to distribute 100 grams or more of heroin, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B). Holguin entered into a plea agreement and pled guilty to

Count Seven. She asked the court to sentence her without regard for the five year

statutory minimum sentence, pursuant to the safety valve provisions in 18 U.S.C. §




                                             2
3553(f).1 The District Court determined that Holguin was not eligible for safety valve

relief because “the defendant has not provided the government with all evidence or

information regarding the offense of conviction or offenses of a common scheme or plan

or same course of conduct,” Appendix (App.) 129, and sentenced Holguin to sixty months

imprisonment, four years supervised release, and a special assessment of $100. This

appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.



                                             II.

       The safety valve provisions were enacted to provide relief to individuals playing



       1
          “The safety valve provisions establish that a defendant shall be sentenced
pursuant to the sentencing guidelines without regard to any statutory minimum sentence
in certain drug offense cases in the event that [] five conditions are met.” United States v.
Sabir, 117 F.3d 750, 751 (3d Cir. 1997). Namely,
        (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 [21 U.S.C. § 848]; and
        (5) 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).

                                              3
minor roles in drug trafficking conspiracies, who lacked the detailed knowledge to qualify

for “substantial assistance” sentence reductions under 18 U.S.C. § 3553(e). Such a

defendant bears the burden of demonstrating by a preponderance of the evidence that the

safety valve provisions are applicable to his or her case, Sabir, 117 F.3d at 754, and

application “not only requires a defendant to admit the conduct charged, but [] also

imposes an affirmative obligation on the defendant to volunteer any information aside

from the conduct comprising the elements of the offense.” United States v. O’Dell, 247

F.3d 655, 675 (6th Cir. 2001) (internal quotation marks and citation omitted). Unlike

other reduction provisions, such as United States Sentencing Guideline § 3E1.1

(acceptance of responsibility), the safety valve provisions require a defendant to “reveal a

broader scope of information about the relevant criminal conduct to the authorities.”

Sabir, 117 F.3d at 753. “These stringent requirements reflect the fact that the safety valve

was intended to benefit only those defendants who truly cooperate.” O’Dell, 247 F.3d at

675 (internal quotation marks and citation omitted).

       We exercise plenary review over the District Court’s ultimate refusal to invoke the

safety valve provisions, United States v. Wilson, 106 F.3d 1140, 1143 (3d Cir. 1997), but

can reject the District Court’s factual findings that Holguin did not provide the requisite

information and evidence only if we conclude that those findings were clearly erroneous.

Sabir, 117 F.3d at 752.


                                             III.


                                              4
       In this case, there is no dispute that Holguin met the first four factors of Section

3553. The parties disagree on whether Holguin demonstrated that she met the fifth factor

by truthfully providing the Government with all evidence she possessed “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). The Government argues that the District Court

correctly determined that Holguin did not fulfill her affirmative obligation and burden to

demonstrate that she was completely candid in disclosing all information regarding her

role and the roles of her co-conspirators in the drug trafficking offense, while Holguin

asserts that she fully and completely disclosed all of the relevant information regarding

the conspiracy prior to sentencing.

       Holguin’s sole argument backing her appeal is that she disclosed the identities of

all parties she knew to be associated with the drug-trafficking conspiracy and provided

the Government with as much information as she could regarding their respective roles in

the scheme. In support of this assertion, Holguin points to an exchange between her

counsel and DEA Task Force Officer Marilyn Brown at Holguin’s July 28, 2005

detention hearing. Counsel asked the officer if Holguin had “disclosed her role in the

offense” after pleading guilty, and Officer Brown responded in the affirmative. App. 84.

On redirect, however, Officer Brown testified that Holguin did not “fully disclose[] her

interaction with other co-defendants in this case,” nor “fully disclose[] her understanding

of what other co-defendants did in this case, in this offense.” App. 85-86. Thus, Holguin

cannot rely on the argument that Officer Brown admitted that Holguin disclosed fully her

                                              5
complete role and the roles of her co-conspirators in the offense. Moreover, the District

Court did not base its decision to deny safety valve relief on this testimony, and even

acknowledged that the cross-examination of Officer Brown “was effective in soliciting

testimony . . . favorable to the defendant’s argument in support of safety valve,”

Supplemental Appendix (Supp. App.) 10, before citing other inconsistencies and lack of

candor on the part of Holguin to support its denial. For example, the court found that

Holguin “didn’t provide letters that were sent to her by another participant in the criminal

activity,” made inconsistent statements to the Government regarding “not knowing the

location or amount of money [involved] and not knowing about some of the details of the

location of individuals or recall[ing] their whereabouts,” and specifically did not disclose

the extent of “contacts and relationship” with involved parties Jose Diaz and Esmerelda

Hernandez. Supp. App. 3, 11. These findings were not clearly erroneous.

       Holguin had the burden to demonstrate that she supplied the Government with

complete information and persuade the District Court of her candor. Sabir, 117 F.3d at

754; see also United States v. Ponce, 358 F.3d 466, 468-69 (7th Cir. 2004) (“a district

court may consider a defendant’s lack of candor in determining eligibility under the

safety-valve provision.”). However, she offered no evidence to explain gaps and

inconsistencies in her various statements to the Government. To give but one example, at

her second proffer session with the Government, Holguin told agents that she had

forgotten to bring a cell phone she received from a co-conspirator and letters from another

co-conspirator. At the third proffer, however, Holguin claimed she could not find the

                                             6
phone and had discarded the letters. Likewise, Holguin failed to explicate fully her

relationship with numerous co-conspirators or provide a consistent explanation of her

involvement with the drug-trafficking operation. Thus, we reject Holguin’s contentions

that she complied with the safety valve provisions’ requirement that she truthfully provide

the Government with all information and evidence she had regarding the drug trafficking

offense.

                                           IV.

       For the foregoing reasons, we will affirm the sentence imposed on Holguin by the

District Court.




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