                                                                                   PUBLISH

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                             FILED
                                                                       U.S. COURT OF APPEALS
                                      _____________                      ELEVENTH CIRCUIT
                                                                              02/29/2000
                                                                          THOMAS K. KAHN
                                     No. 98-2106                               CLERK
                                  _____________
                         D.C. Docket No. 97-00177-CR-T-24E

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

             versus

ELLIOTT R. BROWNLEE,

                                                            Defendant-Appellant.
                                      _____________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                                  _____________
                                 (February 29, 2000)

Before EDMONDSON and MARCUS, Circuit Judges, and STROM*, Senior
District Judge.

STROM, Senior District Judge:




    * Honorable Lyle E. Strom, Senior U.S. District Judge for the District of Nebraska, sitting
  by designation.
      Appellant Elliott Brownlee appeals the district court’s denial of U.S.S.G. §

5C1.2 safety-valve relief. The application of the federal sentencing guidelines to

uncontroverted facts is a legal issue to be reviewed de novo. United States v. Clavijo,

165 F.3d 1341, 1343 (11th Cir. 1999).

                          I. BACKGROUND

      Appellant, Elliott Brownlee, entered a plea of guilty on August 14, 1997, to six

counts involving conspiracy to possess with intent to distribute cocaine base and

cocaine under 21 U.S.C. § 846, possession of those substances with intent to distribute

under 21 U.S.C. § 841(a)(1), and distribution of those substances under 21 U.S.C. §

841(a)(1). Upon his arrest in January 1997, Brownlee gave a proffer regarding his

drug activity to a Drug Enforcement Administration task force agent. In this proffer,

Brownlee admitted to his involvement in the sale of cocaine, but he did not truthfully

disclose the source of the cocaine at this time, nor on later occasions.

      On January 8, 1998, the day before Brownlee’s sentencing hearing, Brownlee’s

trial counsel contacted the prosecutor, telling him that Brownlee would meet with him

before the sentencing hearing to disclose information. On the morning of Brownlee’s

sentencing hearing, Brownlee met with the prosecutor and case agent and disclosed

that co-defendant Alfred Wright, Jr. was the source of the cocaine. The district court

then conducted the sentencing hearing for co-defendant Alfred Wright, Jr., at which


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the government called Brownlee as a witness.        On the witness stand, Brownlee

testified that Alfred Wright was the source of the cocaine. After the district court

sentenced Wright, it conducted Brownlee’s sentencing hearing.            Finding that

Brownlee’s base offense level was 32, the district court          added a two-level

enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of justice, and reduced that

level by three offense levels for acceptance of responsibility pursuant to U.S.S.G. §

3E1.1, resulting in a total offense level of 31. The district court sentenced Brownlee

to 120 months imprisonment, the mandatory minimum for his offenses. Had the

district court applied safety-valve relief for Brownlee, he would have been entitled to

a two-level reduction pursuant to U.S.S.G. § 2D1.1(b)(6), resulting in an offense level

of 29 and a sentencing range of 87-108 months.

                          II. DISCUSSION

      In 1994 Congress enacted a provision allowing district courts to sentence less-

culpable defendants without regard to the mandatory minimum sentences in certain

cases. See U.S.S.G. § 5C1.2. This Guideline has been nicknamed the “safety-valve”

provision. The safety valve provision, which implements 18 U.S.C. § 3553(f),

requires a district court to sentence a defendant in certain drug-possession cases

“without regard to any statutory minimum sentence” if the defendant meets five

criteria. U.S.S.G. § 5C1.2; United States v. Figueroa, ___ F.3d ___ (11th Cir. 2000).


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If the Court determines that all five criteria are met, “ ‘the court shall impose a

sentence pursuant to [the Guidelines] without regard to any statutory minimum

sentence.’ ” United States v. Real-Hernandez, 90 F.3d 356, 361 (9th Cir. 1996)

(citing U.S.S.G. § 5C1.2).      There is no dispute in this case that the first four

criteria of § 5C1.2 are satisfied. The sole issue on appeal is whether Brownlee

satisfied U.S.S.G. § 5C1.2(5), which provides:

             Not later than the time of the sentencing hearing, the
             defendant has truthfully provided to the Government all
             information and evidence the defendant had 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.

U.S.S.G. § 5C1.2(5). The government argues that the Court should read § 5C1.2(5)

as requiring a defendant to disclose all information in good faith. The government

further contends that defendant’s previous lies about his knowledge do not constitute

disclosing information in good faith. See United States v. Ramunno, 133 F.3d 476 (7th

Cir. 1998) (stating that § 5C1.2 benefits only those defendants who have made a good

faith attempt to cooperate with the authorities) (citations omitted). We decline to

adopt the government’s view.




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      The plain language of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 provides only

one deadline for compliance, “not later than the time of the sentencing hearing.”

United States v. Schreiber, 191 F.3d 103, 106 (2nd Cir. 1999). It is undisputed that

Brownlee met this deadline. Nothing in the statute suggests that a defendant who

previously lied or withheld information from the government is automatically

disqualified from safety-valve relief. Id. A similar situation to Brownlee’s occurred

in United States v. Tournier, 171 F.3d 645 (8th Cir. 1999). In Tournier, the defendant

gave three interviews prior to sentencing, each time disclosing information that was

untruthful. The defendant later gave a fourth interview prior to sentencing, where she

completely and truthfully disclosed the relevant information. Upon such disclosure,

the district court granted the defendant safety-valve relief. In affirming that decision,

the Eighth Circuit declined to adopt the government’s view that safety-valve relief

should not apply to defendants who wait until the last minute to fully cooperate. The

court held that since the defendant had finally provided truthful and complete

information before the sentencing hearing, although the court admitted that obtaining

truthful information from that defendant had been “grudging and fitful,” like “pulling

teeth,” she was entitled to safety-valve relief. Id. at 647. See also United States v.

Gama-Bastidas, 142 F.3d 1233 (10th Cir. 1998) (holding that defendant’s attempt to

furnish information to the court and the government in the Judge’s chambers prior to


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the sentencing hearing was not “too late” to be entitled to safety-valve relief).

“Moreover, to the extent that the government’s interest in disclosure could justify

penalizing defendants who lie or withhold information during proffer sessions, a

similar scheme already exists independent of the safety valve.” See Schreiber, 191

F.3d at 108 (citing U.S.S.G. § 3C1.1 (obstruction of justice)). We follow those

circuits who have held that lies and omissions do not, as a matter of law, disqualify

a defendant from safety-valve relief so long as the defendant makes a complete and

truthful proffer not later than the commencement of the sentencing hearing. Id.

       This does not mean that the defendant's prior lies are completely irrelevant. In

making this determination, the evidence of his lies becomes "part of the total mix of

evidence for the district court to consider in evaluating the completeness and

truthfulness of the defendant's proffer." Schreiber, 191 F.3d at 108.

       The question of whether the information Brownlee supplied to the government

the morning of his sentencing was truthful and complete, however, is a factual finding

for the district court. United States v. Espinosa, 172 F.3d 795, 797 (11th Cir. 1999)

(stating that it is the district court’s responsibility to determine the truthfulness of the

information the defendant provided to the government). Because the district court

disqualified Brownlee from safety-valve relief at the threshold, the district court never




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considered the factual question of whether his final proffer was complete and truthful.



                          III. CONCLUSION

      We therefore VACATE Brownlee’s sentence and REMAND with instructions

that the district court resentence Brownlee in accordance with this opinion.




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