                        NONPRECEDENTIAL DISPOSITION
                           To be cited only in accordance with
                                 Fed. R. App. P. 32.1




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                               Argued April 18, 2007
                               Decided June 21, 2007

                                       Before

                   Hon. RICHARD A. POSNER, Circuit Judge

                   Hon. JOHN L. COFFEY, Circuit Judge

                   Hon. JOEL M. FLAUM, Circuit Judge

No. 06-3650

UNITED STATES OF AMERICA,              Appeal from the United States
    Plaintiff-Appellee,                District Court for the Northern
                                       District of Indiana, South Bend Division
              v.
                                       No. 3:05-CR-00151(01)RM
RANDY G. WATTERS,
    Defendant-Appellant.               Robert L. Miller, Jr.,
                                       Chief Judge.

                                      ORDER

       Randy Watters was arrested and charged with possession with intent to
distribute marijuana. See 21 U.S.C. § 841(a)(1). A jury found him guilty, and
because the number of plants he was found to be cultivating or growing was 100 or
more, he faced a mandatory minimum of 60 months’ imprisonment, id.
§ 841(b)(1)(B). After the finding of guilt, the court imposed the minimum term of
60 months’ imprisonment and four years of supervised release. Watters appeals
and alleges that the court erred by not granting him relief under the “safety valve,”
see 18 U.S.C. § 3553(f); U.S.S.G. §§ 5C1.2, 2D1.1(b)(7). Watters has consistently
denied that he intended to distribute any marijuana, nor has he provided the
government with complete and truthful information concerning the offense. The
court thus did not err in denying him relief under the “safety valve.” We affirm.
No. 06-3650                                                               Page 2

                                    Background

       In September of 2005 an Indiana State Police helicopter flew over Watters’s
property in Warsaw, Indiana. The trooper in a helicopter observed what he
believed to be marijuana growing near Watters’s house and based on this
information the police obtained a search warrant for the premises. When they
arrived at Watters’s home, the marijuana plants they had observed from the
helicopter were gone, and there was evidence that the plants had been recently
extracted from the ground. Shortly thereafter the police observed Watters standing
just outside his property line, surrounded by several piles of fresh marijuana plant
material that had been placed on the ground and propped against trees to dry and
furthermore he was observed harvesting buds from some of this plant material.
The police were convinced that this marijuana came from the plants they had seen
earlier from the helicopter. They discovered a total of some 100 stalks in number
near the drying plant material. Most of the stalks had been covered with brush.
Based on the number of (marijuana) stalks recovered and on another 29 live
marijuana plants found growing just north of Watters’s property, the police
concluded that Watters had been growing some 100 plus plants in the area.

       At trial Watters admitted that he possessed some marijuana for personal use
but denied that he had grown marijuana intentionally or that he planned to
distribute the seized marijuana. He admitted that in 1992 he returned from
Jamaica with marijuana seeds and stated that he had thrown them on the ground
in the area observed from the helicopter and never tended to them again. He stated
that the sound of the police helicopter hovering over his property had alerted him to
investigate, and at that time he discovered to his surprise that a number of further
marijuana plants were growing in that location. Not wanting anyone to discover
these plants, he pulled them out of the ground and took them to the area where
they were discovered by the police. He stated that he placed them there to rot, but
admitted having harvested some buds for his personal use. As for the 29 plants
growing just north of his property, he asserted that he had no knowledge of those
plants until the police “led” him to that location.

        After the jury found him to be untruthful and less than credible and they
rejected his fabricated story, Watters offered to be interviewed by the government
as a prelude to qualifying for the “safety valve.” The prosecutor’s office declined the
offer, rightly believing that Watters had been and was likely to be less than
forthcoming and truthful. Having been denied an interview, Watters submitted a
written “safety-valve” proffer on his own. In this proffer he admitted that he had
possessed and used marijuana and named two men who had supplied him with
relatively modest amounts of the drug. But he failed to admit to cultivating the
marijuana found near his property, nor did he admit that he planned to distribute
No. 06-3650                                                             Page 3

this or any other marijuana. At his sentencing hearing he continued to deny that
he intended to distribute marijuana.

       The trial court for good reason refused to give Watters the benefit of the
“safety valve” on the reasoning that he failed to provide the government with
complete and truthful information about his offense. See U.S.S.G. §§ 5C1.2,
2D1.1(b)(7). The court, citing the number of plants found near Watters’s property,
expressly agreed with the jury’s finding that Watters had intended to distribute the
marijuana and rejected his proffer as insufficient because of his failure to identify
the intended recipients of the drugs. The trial judge was convinced that Watters
had not named all of his sources of marijuana. Thus, the court decided that he
failed to comply with the requirements for the invocation of the “safety-valve.”
                                       Analysis

          The “safety valve” allows certain nonviolent, first-time drug offenders to
escape an otherwise-applicable mandatory minimum sentence. 18 U.S.C. § 3553(f);
U.S.S.G. § 5C1.2. In order to qualify, a defendant must meet five requirements.
The only one at issue in this case is the fifth requirement: 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 . . . .” 18 U.S.C. § 3553(f)(5). Watters primarily argues that he never intended
to distribute any of the marijuana found on or near his property and thus the
district court should not have required that he name the potential distributees. But
this argument is meritless because Watters had the burden of establishing that he
met the fifth requirement, United States v. Ponce, 358 F.3d 466, 468 (7th Cir. 2004),
and he could not do this by asserting that he never intended to distribute marijuana
after a jury had found otherwise. The trial judge was certainly entitled to agree
with the jury’s verdict and reject Watters’s fairy tale that he did not discover the
129 marijuana plants growing outside his house until the police showed up. See
United States v. Montes, 381 F.3d 631, 636-37 (7th Cir. 2004). Furthermore this
argument for various reasons actually undermines Watters’s claim that he is
entitled to the “safety valve.” Certainly a defendant who denies even committing
the underlying crime falls short of making a complete and truthful proffer to the
government. See United States v. Thompson, 106 F.3d 794, 800-01 (7th Cir. 1995).

       Watters next contends that, even assuming for the sake of argument that he
did plan to distribute the marijuana, the court still should not have required him to
name potential distributees because he might not at that time have decided who he
wanted to distribute the drugs to. Furthermore, the court did not err by failing to
consider this scenario because Watters never presented it to the sentencing judge.
He always maintained that he never planned to distribute. If in fact, as Watters
hypothesizes in his appellate brief, he did plan to distribute but had not decided on
No. 06-3650                                                              Page 4

potential distributees, he could easily have advised the district court and the
government that this was the case.

       Finally, at oral argument, Watters asserted that the district court erred in
denying him relief under the “safety-valve” when the government refused to give
him an opportunity to make a full proffer at a “safety-valve” interview. In United
States v. Brack, 188 F.3d 748, 763 (7th Cir. 1999), we held that it was error for the
district court to deny “safety-valve” relief on the ground of an incomplete proffer
when the defendant submits a truthful written proffer and offers to submit to a
“safety-valve” interview but is refused. We reasoned that the government cannot
refuse to let a defendant “finish” his story and then argue that he does not deserve
the “safety valve” because he has not revealed everything he knows. Id. Watters
waived this argument by not developing it in his opening brief. See United States v.
Kelley, 446 F.3d 688, 692-93 (7th Cir. 2006).

       In any event, even if Watters had not waived this issue, his case is
distinguishable from Brack. The district court in Brack did not decide whether the
defendant was being untruthful and rested its decision solely on the incompleteness
of the defendant’s statement. Id. at 762-63. The trial court in this case, however,
found that Watters was less than truthful during sentencing when he repeatedly
claimed that he did not intend to distribute the marijuana he was growing. The
court’s decision properly focuses on the falsity of his fabricated statements and is
necessarily based on a finding that Watters’s statements were less than truthful as
well as incomplete. Watters was not denied an opportunity to finish his story.
Rather, he never really began telling his story since he has never admitted to the
most basic elements of the offense of conviction.

                                                                      AFFIRMED.
