                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 11-15514         ELEVENTH CIRCUIT
                                                     MAY 21, 2012
                        Non-Argument Calendar
                      ________________________        JOHN LEY
                                                       CLERK

                  D.C. Docket No. 1:11-cr-20298-JAL-2


UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellant,

                                 versus



JOSE ANGEL HERNANDEZ,

                                                         Defendant-Appellee.


                    __________________________

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

                             (May 21, 2012)

Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
      Jose Angel Hernandez appeals his total 60-month sentence, imposed after

pleading guilty to conspiracy to possess with intent to distribute 100 kilograms or

more of marijuana, in violation of 21 U.S.C. § 846, and attempt to possess with

intent to distribute 100 kilograms or more of marijuana, in violation of § 846. On

appeal, Hernandez argues that the district court erred when it determined that he

did not qualify for safety-valve relief.

      The “safety-valve” provision, found in U.S.S.G. § 5C1.2, permits the court

to impose a sentence, without regard to the statutory minimum sentences, if the

defendant meets all of the criteria set forth in 18 U.S.C. § 3553(f)(1)-(5). In order

to comply with this provision, a defendant must demonstrate that he has made a

good faith effort to cooperate with the government. “The burden is on the

defendant to come forward and to supply truthfully to the government all the

information he possesses about his involvement in the offense, including

information relating to the involvement of others and to the chain of the narcotics

distribution.” United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). A

district court may not apply the safety valve if it determines that the defendant

withheld or misrepresented information, even if the information would not have

aided further investigation or prosecution if properly disclosed. United States v.

Figueroa, 199 F.3d 1281, 1282-83 (11th Cir. 2000). In determining the honesty of

                                           2
a defendant, the district court must independently assess the facts and may not rely

on the government’s assertion of dishonesty. United States v. Espinosa, 172 F.3d

795, 797 (11th Cir. 1999).

      We review the district court’s factual determinations in denying a

safety-valve reduction for clear error. Cruz, 106 F.3d at 1557. Where a fact

pattern gives rise to two reasonable and different constructions, “the factfinder’s

choice between them cannot be clearly erroneous.” United States v. Saingerard,

621 F.3d 1341, 1343 (11th Cir. 2010) (quotation omitted). Also, “[f]or a finding to

be clearly erroneous, this Court must be left with a definite and firm conviction

that a mistake has been committed.” United States v. Rothenberg, 610 F.3d 621,

624 (11th Cir. 2010).

      At the sentencing hearing, the district court denied application of the safety

valve provision and made the following factual findings:

      I find it impossible that, under these circumstances, the extent of what
      this Defendant knows is limited to, “The people asked my brother to
      help with the move. They had told him it was marijuana. And we met
      a guy in a gas station and went with him to a warehouse.” There’s not
      even a name–not one name of one person that the brother was in
      contact with and not even the name of the person that they met in the
      gas station who he met [and] went with him to the warehouse. . . I just
      don’t find that it’s a complete statement such that it qualifies for
      safety valve, which requires that the Defendant truthfully provide to
      the Government all information and evidence that he has concerning



                                          3
      the offense or offenses that were part of the same course of conduct
      or of a common scheme or plan.

In addition, Hernandez was arrested with a BlackBerry cell phone on his person

which showed he had received incoming calls from alleged co-conspirators just

prior to the incident. Although there was some dispute as to the rightful owner of

the cell phone, the district court found that “[r]egardless of whether it was his

phone or his brother’s phone, if he was in possession of that phone and there were

incoming calls coming in on that phone, then, obviously he would have some

information about who was calling in on the phone.”

      In accordance with the above findings, the district court did not clearly err

in denying Hernandez safety-valve relief because the district court reasonably

concluded that he did not provide the government with “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” as required by U.S.S.G. §

5C1.2(a)(5).

      AFFIRMED.




                                          4
