            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 99-10509
                                         _______________



                                 UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                              VERSUS

                                      MARGUERITE CASALE,

                                                             Defendant-Appellant.


                                   _________________________

                            Appeal from the United States District Court
                                for the Northern District of Texas
                                        (4:98-CR-211-Y)
                                 _________________________
                                          May 11, 2000


Before POLITZ, SMITH, and DENNIS,                    possession with intent to distribute heroin in
  Circuit Judges.                                    violation of 21 U.S.C. § 841(a)(1). We affirm.

JERRY E. SMITH, Circuit Judge:*                                             I.
                                                        The government first argues that we should
   Marguerite Casale appeals the sentence im-        dismiss without consideration of the merits be-
posed following her plea of guilty of                cause Casale’s written plea agreement contains
                                                     a waiver-of-appeal provision. A defendant can
                                                     waive the right to appeal as part of a plea
   *
                                                     agreement, but the waiver must be informed
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                     (or “knowing”) and voluntary. See United
determined that this opinion should not be
                                                     States v. Melançon, 972 F.2d 566, 567 (5th
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.       Cir. 1992). “[A] defendant's waiver of her
47.5.4.                                              right to appeal deserves and, indeed, requires
the special attention of the district court. . . .          sentencing hearing, the defendant has
It is up to the district court to insure that the           truthfully provided to the Government
defendant fully understands her right to appeal             all information and evidence the
and the consequences of waiving that right.”                defendant has concerning the offense or
United States v. Baty, 980 F.2d 977, 979 (5th               offenses that were part of the same
Cir. 1992). A generic discussion of the                     course of conduct or of a common
possibility of waiving one’s right to an appeal             scheme or plan, but the fact that the
is not sufficient. See United States v.                     defendant has no relevant or useful other
Robinson, 187 F.3d 516, 518 (5th Cir. 1999).                information to provide or that the
                                                            Government is already aware of the
   The record of Casale’s FED. R. CRIM. P. 11               information shall not preclude a
hearing does not unequivocally indicate that                determination by the court that the
she had read and understood the plea                        defendant has complied with this
agreement, and the hearing did not include any              requirement.1
explanation of the waiver-of-appeal provision.
The record is not adequate to demonstrate that           This requirement is repeated verbatim at
Casale knowingly and voluntarily waived her              U.S.S.G. § 5C1.2, and U.S.S.G. § 2D1.1(b)(6)
right to appeal, so the waiver is not effective.         provides for a two-level decrease in offense
See Robinson, 187 F.3d at 518; United States             level if the “safety-valve” requirements are met
v. Portillo, 18 F.3d 290, 292-93 (5th Cir.               and the offense level is 26 or greater.
1994).
                                                            Based on the government’s assertion that
                     II.                                 Casale had not truthfully provided all
   Casale argues that the court erred by                 information and evidence she had regarding
declining to impose a sentence below the                 the offense, the Presentence Report (“PSR”)
statutory minimum pursuant to the “safety                recommended that she was ineligible for the
valve” provision of 18 U.S.C. § 3553(f):                 safety-valve provision. The court tentatively
                                                         sustained Casale’s objection to this
   Notwithstanding any other provision of                recommendation, but, after hearing testimony
   law, in the case of an offense under . . .            from a government agent and Casale,
   21 U.S.C. 841 . . . the court shall                   determined that the PSR recommendation was
   impose a sentence pursuant to guidelines              correct and refused to apply the safety-valve
   promulgated by the United States                      provision because of a failure to satisfy the
   Sentencing Commission . . . without                   truthfulness criterion of § 3553(f)(5). We
   regard to any statutory minimum                       review this finding for clear error.2 See United
   sentence, if the court finds at sentencing,
   after the Government has been afforded
   the opportunity to make a                                1
                                                               Section 3553(f) contains five requirements,
   recommendation, thatSS                                but the parties dispute only whether Casale has
                                                         satisfied the requirement contained at § 3553(f)(5).
        ...
                                                            2
                                                               Neither party contends that the court
   (5) not later than the time of the                    incorrectly interpreted the provision as a matter of
                                                                                               (continued...)

                                                     2
States v. Miller, 179 F.3d 961, 963-64 (5th           untruthfulness regarding matters not related to
Cir. 1999).                                           the offense of conviction. See Miller, 179
                                                      F.3d at 965-66. Miller does not control
    The government asserts that Casale has not        whether the money order testimony is relevant,
been truthful about at least two issues. First,       however, because unlike the situation in Mil-
although the government was able to verify            ler, the only basis for determining whether the
Casale’s claim that she had engaged in a              money order is relevant is Casale’s credibility,
practice run from New York to Texas after her         a judgment the district court was uniquely well
recruitment as a drug courier, government             qualified to make.
agents did not believe she was unaware of the
identity of all other participants in the drug            Casale’s assertion that the court incorrectly
operation, and did not believe her assertion          relied on pure speculation is likewise not sup-
that, having suffered a stroke, she was unable        ported by Miller. In Miller, we did hold that
to recall specific dates.                             a court may not rely on mere speculation, but
                                                      in so doing we explicitly followed United
   Second, Casale became extremely evasive            States v. Miranda-Santiago, 96 F.3d 517 (1st
on cross examination when the government              Cir. 1996), and United States v. White, 119
asked about a receipt for a $50 postal money          F.3d 70 (1st Cir. 1997). See Miller, 179 F.3d
order from Lucy Montemoro in Brooklyn,                at 967-68.
New York, to Luis de Jesus in Elmira, New
York, which was found in Casale’s purse at               The Miranda-Santiago court held that mere
the time of arrest. Casale claimed that the           speculation is not sufficient to defeat
money order was not related to her criminal           application of 18 U.S.C. § 3553(f): “The
offense, and therefore refused to identify the        government cannot assure success simply by
named individuals.                                    saying, ‘We don’t believe the defendant,’ and
                                                      doing nothing more.” Miranda-Santiago, 96
    Following Casale’s testimony, the court           F.3d at529. In White, the court clarified
stated that it now understood why the PSR             Miranda-Santiago in affirming a refusal to
found her to be ineligible for the safety valve       apply the safety valve provision:
provision, and overruled her objection to the
denial of that reduction on the ground that she          Miranda-Santiago in no sense suggests
had been evasive under questioning and had               that the sentencing court cannot arrive
failed to demonstrate that she had been                  at an independent determination
forthcoming for purposes of § 3553(f)(5).                regarding a criminal defendant’s
Casale argues that the court erred by denying            truthfulness, based on the evidence
the reduction based on irrelevant matters and            before it. Rather, we there held merely
pure speculation, in violation of Miller.                that it was clear error to conclude that
                                                         the defendant had been untruthful, based
   In Miller, we held that a court may not re-           solely on a PSR which directly
fuse the safety valve reduction based on                 contradicted the district court’s
                                                         determination.

   2
    (...continued)
law.

                                                  3
White, 119 F.3d at 74.3
   As in White, the district court in this case,
after preliminarily rejecting the government’s
argument, “made the carefully considered de-
termination that [Casale] lacked credibility.”
White, 119 F.3d at 74. That decision is not
clearly erroneous.

   AFFIRMED.




   3
     The Miranda-Santiago district court was con-
fused about two matters, the nature and content of
the plea agreement and the content of the PSR. See
Miranda-Santiago, 96 F.3d at 527. In particular,
the court incorrectly believed that the PSR
supported the government’s position as to the
defendant’s truthfulness. See id.

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