
USCA1 Opinion

	




                                [Not for Publication]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1312                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                               REYNALDO GONZALEZ-VEGA,                                Defendant, Appellant.        No. 96-1313                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                 SANTOS OTERO-ROLON,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Luis  Rafael Rivera,  by Appointment  of the  Court, for appellant            ___________________        Reynaldo Gonzalez-Vega.            Miguel A.A.  Nogueras-Castro, by  Appointment of  the Court,  with            ____________________________        whom  Benicio  Sanchez-River, Federal  Public  Defender  and Carol  A.              ______________________                                 _________        Vazquez-Alvarez, Assistant Federal Public  Defender, were on brief for        _______________        appellant Santos Otero-Rolon.            Jacabed Rodriguez  Coss,  Assistant United  States Attorney,  with            _______________________        whom  Guillermo  Gil, United  States  Attorney,  and Jose  A.  Quiles,              ______________                                 ________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                     MAY 1, 1997                                 ____________________                      STAHL, Circuit Judge.  Defendants-appellants                      STAHL, Circuit Judge.                             _____________            Reynaldo Gonzalez-Vega and Santos Otero-Rolon  pleaded guilty            to  one  count  of aiding  and  abetting  each  other in  the            possession, with intent to  distribute, of three kilograms of            cocaine, in violation of 21 U.S.C.   841(a)(1), and 18 U.S.C.              2.   At sentencing, the  district court  imposed upon  each            defendant  the  statutory  minimum   term  of  sixty  months'            imprisonment.  See 21 U.S.C.   841(b)(1)(B).  They now appeal                           ___            the  court's finding that they failed to meet the criteria of            the  "safety  valve"  provision  for  relief  from  mandatory            minimum sentences.  See  18 U.S.C.   3553(f)(1)-(5); U.S.S.G.                                ___               5C1.2.  Finding no  clear error in  the court's sentencing            determination, we affirm.                                          I.                                          I.                                          __                        Pertinent Facts and Prior Proceedings                        Pertinent Facts and Prior Proceedings                        _____________________________________                      The  facts as set forth  in the plea agreement, and            to  which the parties agreed  at the change  of plea hearing,            are as follows.  On August 21, 1995, postal employees at  the            Hato  Rey Post Office in  San Juan, Puerto  Rico, noticed two            suspicious Express  Mail parcels addressed to  Rochester, New            York.   Upon investigation, both return  addresses were found            to be nonexistent.   In addition, a U.S. Customs  Canine Unit            detected  the  presence of  a  controlled  substance in  both            packages.   Pursuant to a search warrant, the contents of the            packages  were field  tested  and determined  to be  cocaine.                                         -2-                                          2            Postal  agents forwarded  one  package ("package  No. 1")  to            Rochester,  New  York  for  a controlled  delivery.    Postal            inspectors retained the other package ("package No. 2") for a            possible "reverse delivery."                      Surprisingly, three days later  Otero-Rolon decided            to effectuate the reverse delivery.  Armed with  the customer            copy of the Express  Mail receipt, he claimed and  signed for            package No.  2, which the authorities  had already determined            contained approximately three kilograms  of cocaine.  At that            time, a postal inspector surveilling the customer parking lot            outside  the post  office noticed Gonzalez-Vega  loitering at            the facility's  exit doors.   Gonzalez-Vega then  entered the            post office  and made eye contact with  Otero-Rolon.  Moments            later, both men exited  with package No. 2.   Agents arrested            the two men and subsequently charged them with respect to the            drugs  in  that  package.    Post  office  clerks  identified            Gonzalez-Vega as  the  person who  mailed package  No. 1  and            Otero-Rolon as the person who mailed package No. 2.                      Thereafter, both men pleaded  guilty pursuant to  a            plea  agreement in  which the  parties stipulated  to various            sentencing recommendations,  including: a base  offense level            of 28 under  U.S.S.G.    2D1.1, a three  level reduction  for            their  mitigating roles  in  the offense,  and an  additional            three level reduction for  acceptance of responsibility.  The            plea  agreement acknowledged  possible further relief  if the                                         -3-                                          3            defendants met  the criteria contained in  the "safety valve"            provision.  See 18 U.S.C.   3553(f)(1)-(5); U.S.S.G.   5C1.2.                        ___                      At the sentencing hearing, the district court found            the  stipulated base  offense level and  downward adjustments            applicable to the defendants.  The court determined, however,            that   neither   Gonzalez-Vega  nor   Otero-Rolon  truthfully            provided   the  government  all  information  concerning  the            offense,   as   required   by   18   U.S.C.       3553(f)(5).            Consequently,  the court declined  to afford either defendant            any relief  from the statutory minimum  term of imprisonment.            This appeal ensued.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                      Gonzalez-Vega  and  Otero-Rolon   argue  that   the            district  court clearly erred in finding  that they failed to            meet the five  criteria listed in the safety valve provision.            That provision, if applicable, requires a sentencing court to            disregard the statutorily  imposed mandatory minimum sentence            and impose  sentence pursuant  to the Sentencing  Guidelines.            See 18 U.S.C.    3553(f).  The government concedes  that both            ___            men met  the first  four of  the criteria.   See 18  U.S.C.                                                           ___            3553(f)(1)-(4).   In  dispute is  the fifth  criterion, which            requires   a  defendant  to   "truthfully  provide[]  to  the                                           __________            Government all  information and evidence  the defendant  has"                       ___                                         -4-                                          4            regarding  the  offense.   18  U.S.C.    3553(f)(5) (emphasis            added).1                      In order  to qualify  for safety valve  relief, the            defendant  must persuade the court  that he meets  all of the            requirements.   See United States  v. Montanez, 82  F.3d 520,                            ___ _____________     ________            523 (1st Cir. 1996).  We review  for clear error the district            court's  factual  determinations   underlying  the   question            whether a defendant is  entitled to such relief.   See United                                                               ___ ______            States v. Miranda-Santiago, 96 F.3d 517, 527 (1st Cir. 1996).            ______    ________________            "Where  there  is  more  than  one   plausible  view  of  the            circumstances,   the   sentencing   court's    choice   among            supportable  alternatives  cannot   be  clearly   erroneous."            United States v. D'Andrea, 107 F.3d 949, 958 (1st Cir. 1997).            _____________    ________                      Previously, we have found clear error in the denial            of safety  valve relief where  "the government did  not rebut                                            ____________________            1.  In full, the fifth criterion requires 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,                      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).                                         -5-                                          5            [defendant's]  facially plausible tale of limited involvement            by pointing to information  [the] defendant must have known."            Miranda-Santiago, 96 F.3d at 529.  Thus, a sentencing court's            ________________            "bare  conclusion"  that the  defendant  failed to  cooperate            within the meaning of   3553(f)(5) is insufficient to support            such a  finding "absent  either specific factual  findings or            easily recognizable support in the record."  Id.                                                         ___                      We  consider  the facts  and legal  challenges with            respect to each defendant in turn.            A.  Otero-Rolon            _______________                      At his  change  of plea  hearing  and in  his  plea            agreement,   Otero-Rolon  admitted   that   a  postal   clerk            identified  him  as having  mailed package  No.  2.   The day            before the sentencing hearing,  however, at a debriefing with            the  government, he denied that  he mailed the  package.  The            court found the later denial incredible and concluded that it            created  the   likelihood  of  an   absence  of   information            concerning the  identity of the person who supplied the drugs            and  other particulars  surrounding the  package.   Presented            with Otero-Rolon's recantation, the resulting factual vacuum,            and other  inconsistencies in his informative  proffers,2 the            district  court  found that  Otero-Rolon  did  not truthfully                                            ____________________            2.  For  example, Otero-Rolon originally  told the government            that  Gonzalez-Vega  asked him  to pick  up the  Express Mail            package, then  later stated  that an acquaintance  he chanced            upon  at a shopping mall hired the two defendants to retrieve            the parcel.                                         -6-                                          6            provide all information to  the government within the meaning            of    3553(f)(5).  See United  States v. Wrenn, 66  F.3d 1, 3                               ___ ______________    _____            (1st Cir. 1995) (explaining  that defendant failed to provide            "all"  information regarding  convicted offense  where, after            claiming to have numerous drug customers, defendant "supplied            nary a name to the government").                      Unlike  the  sentencing court  in Miranda-Santiago,                                                        ________________            here, the court  identified specific and supportable  reasons            for concluding  that  Otero-Rolon was  neither  truthful  nor            completely    forthcoming     in    providing    information.            Furthermore,  contrary to the defendant's proffer in Miranda-                                                                 ________            Santiago,  Otero-Rolon's later  denials and  new explanations            ________            rendered  his inexplicit  final  version  implausible on  its            face.  While the court could have found that Otero-Rolon had,            in  the  end,  provided  the government  with  all  pertinent            information he had, its rejection of that conclusion reflects            a readily plausible view of the evidence.  Therefore, we find            no  clear error  in  the court's  factual determination  that            Otero-Rolon did not meet the fifth  requirement of the safety            valve provision.3                                             ____________________            3.  Otero-Rolon suggests  that the district  court denied him            the opportunity  to provide  further relevant  information at            his sentencing  hearing.   He  also intimates  that, had  the            court queried  him, it would  have found credible  his latest            version  of the facts surrounding the offense.  Our review of            the  record  shows  otherwise.   At  the  hearing, the  court            directly  asked  Otero-Rolon  whether   or  not  he  had  any            information  to present other than that found in his previous            submissions.   Otero-Rolon replied that he did not.  The fact                                         -7-                                          7            B.  Gonzalez-Vega            _________________                      Like  Otero-Rolon,  Gonzalez-Vega  asserts that  he            truthfully disclosed all information that he might reasonably            have been expected to possess.  Our review of Gonzalez-Vega's            contention that  the court's findings were clearly erroneous,            however,  is  severely hindered  by  his  failure to  provide            copies of  the sentencing  hearing transcript.   See Fed.  R.                                                             ___            App. P. 10(b)(2)  (requiring appellant to provide  transcript            when  challenging  a  finding  on the  basis  of  evidentiary            insufficiency).   We have  repeatedly held that,  "[w]here an            appellant  raises  issues that  are  factually dependant  yet            fails to provide a transcript of the pertinent proceedings in            the   district  court,  .  .   .  we  will   not  review  the            allegations."  Muniz Ramirez v.  Puerto Rico Fire Servs., 757                           _____________     _______________________            F.2d  1357,  1358  (1st  Cir.  1985);  see  also  Plummer  v.                                                   ___  ____  _______            Springfield  Terminal Ry. Co., 5  F.3d 1, 5  (1st Cir. 1993);            _____________________________            Batistini v. Aquino, 890  F.2d 535, 539 (1st Cir. 1989).   We            _________    ______            see no reason to depart from that rule in this case.                      We do note, however, that both the government's and            Gonzalez-Vega's appellate briefs indicate  that Gonzalez-Vega            not only told materially  inconsistent stories concerning the            offense, he may have  purposely withheld information as well.            On  the record  before  us, we  can  only conclude  that  the                                            ____________________            that the court did not find his final story truthful does not            mean that  the court deprived Otero-Rolon  of the opportunity            to render that account.                                           -8-                                          8            sentencing  court's  finding  that  Gonzalez-Vega  failed  to            satisfy section  3553(f)(5)  was reasonable  considering  the            evidence before it.4                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For the  reasons stated above, we  will not disturb            the  district court's  finding that  the defendants  were not            entitled  to  relief   under  the  safety  valve   provision.            Affirmed.            Affirmed.            ________                                            ____________________            4.  At oral argument before this court, Gonzalez-Vega claimed            that the  district court erroneously denied  him the benefits            of  the safety  valve  provision because  the information  he            withheld from  the government concerned conduct  unrelated to            the charged  offense.  See  Wrenn 66 F.3d at  3 (declining to                                   ___  _____            define the scope of the phrase "offense or offenses that were            part  of the same course of conduct  or of a common scheme or            plan" within the meaning of 18 U.S.C.   3553(f)(5)).  We will            not  consider  this  unpreserved contention,  raised  at oral            argument  for the first  time.  See United  States v. De Leon                                            ___ ______________    _______            Ruiz, 47 F.3d  452, 455  n.1 (1st Cir.  1995).   Furthermore,            ____            Gonzalez-Vega's  failure to  furnish a  sentencing transcript            thwarts any meaningful analysis of this issue.                                         -9-                                          9
