                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2007

USA v. Espinosa-Cruz
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2525




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"USA v. Espinosa-Cruz" (2007). 2007 Decisions. Paper 621.
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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                     No. 04-2525




                          UNITED STATES OF AMERICA

                                          v.

                             DAVID ESPINOSA-CRUZ,

                                                   Appellant




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 03-cr-00696-01)
                     District Judge: Honorable Harvey Bartle, III




                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                    April 24, 2007


      Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN,* Circuit Judges.


                               (Filed: August 6, 2007 )




      *
         The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
                               OPINION OF THE COURT


FUENTES, Circuit Judge.

       Drug enforcement agents intercepted David Espinosa-Cruz at the Philadelphia

International Airport carrying 41 kilograms of cocaine. Espinosa later pleaded guilty to

one count of possession with intent to distribute more than 5 kilograms of cocaine in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The District Court sentenced him to

120 months in prison, the statutory minimum under § 841(b)(1)(A). On appeal, Espinosa

argues that the District Court erroneously denied his request to consider a lower sentence

under the “safety valve” provision, 18 U.S.C. § 3553(f). We will affirm.

                                             I.

       On October 1, 2003, a federal task force, comprised of agents of the Drug

Enforcement Administration and local law enforcement, learned that luggage containing

cocaine had been smuggled aboard a flight from San Juan, Puerto Rico to Philadelphia,

Pennsylvania. Task force agents subsequently stopped Espinosa, a passenger on the

flight, as he was exiting the baggage claim with matching grey suitcases. After displaying

his ticket and identification, Espinosa told the agents he was in town for a two-week

vacation, but could not name the hotel he would be staying at. He also stated that,

although the two suitcases were his, he had not packed them.

       Espinosa then consented to the agents’ request to search his bags; the agents found


                                            -2-
bricks of a white substance later determined to be approximately 41 kilograms of cocaine.

Espinosa explained to the agents that he had been hired in Puerto Rico by a friend named

“Abel” to deliver the suitcases in exchange for $3,000 to $5,000.1

       On February 9, 2004, Espinosa pleaded guilty to one count of possession with

intent to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(A). At sentencing, the District Court calculated a guideline range of

108 to 135 months.2 The Court recognized, however, that a statutory minimum required

that it sentence Espinosa to at least 120 months in prison. Espinosa asked the Court to

sentence him pursuant to the safety valve provision, 18 U.S.C. § 3553(f), under which he

could receive a guideline-range sentence “without regard for the statutory minimum

sentence.” United States v. Sabir, 117 F.3d 750, 751 (3d Cir. 1997).

       Before the District Court, the parties disputed whether the safety valve provision

was applicable.3 Specifically, the government contested whether Espinosa had “truthfully


       1
         Another man, Gilberto Velez, was also apprehended that day in connection with
the task force’s operations at Philadelphia’s airport.
       2
       This range was based on a total offense level of 31 and a Criminal History
Category of I.
       3
           The five requirements for application of the safety valve provision are:

       (1) the defendant does not have more than 1 criminal history point, as
       determined under the sentencing guidelines;
       (2) the defendant did not use violence or credible threats of violence or
       possess a firearm or other dangerous weapon (or induce another participant
       to do so) in connection with the offense;
       (3) the offense did not result in death or serious bodily injury to any person;

                                               -3-
provided . . . all information and evidence the defendant has concerning the offense,” as

required by 18 U.S.C. § 3553(f)(5). The government explained his proffer as follows:

             [T]he defendant stated that he had made a previous trip [to carry
      drugs] in August of 2003. That trip was from Puerto Rico. [H]is ultimate
      destination was to be . . . New York and the flight was to go through
      Orlando. . . . [W]hen the plane stopped in Orlando, [however,] he became
      afraid and he went back to Puerto Rico, [i.e., he] did not finish the trip. He
      did not know what eventually happened to the blue suitcase that he was to
      pick up in New York . . . .

             [Espinosa] told the Government at his proffer that the same person
      who had hired him for . . . the first trip—a person he knows only as
      Abel—approached him about the second trip. He said that he was contacted
      on his cellular telephone. He has stated that he has never met this person
      Abel face to face . . . .

             He said he has no idea who he was supposed to deliver the drugs to.
      He didn’t know . . . what hotel he was going to or where he was staying and
      did not know how he was going to be paid later or how they were going to
      find him except that he was going to return to Puerto Rico after his trip and
      somehow be paid; and that he trusted these people to pay him and that these
      people who he never met face to face, and these people who he let down on
      the previous trip, trusted him not to leave with the drugs or sell the drugs.




      (4) the defendant was not an organizer, leader, manager, or supervisor of
      others in the offense, as determined under the sentencing guidelines and was
      not engaged in a continuing criminal enterprise, as defined in [21 U.S.C. §
      848]; and
      (5) 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).

                                            -4-
App. at 26-28.

       Defense counsel conceded that this was “an incredible story,” but argued that

Espinosa was “not a sophisticated drug dealer,” and had no “street operation” or “drug

connections.” App. at 30. Espinosa himself explained that he told his contacts “that I was

going to be lodged in the closest hotel and they told me to grab a cab and to tell the cab

driver to take me to the nearest hotel and they were going to contact me there.” App. at

36. He also stated that he had never seen the luggage containing the cocaine before

arriving in Philadelphia; instead, he had simply been told over the phone to look for two

dark grey suitcases upon arrival.

       The District Court ruled that Espinosa had failed to truthfully provide the

government with all information regarding his offense. Specifically, it found that he

failed to disclose complete information about how he had become involved in the drug

transaction.4 Thus, finding the safety valve provision inapplicable, the Court imposed the

mandatory minimum sentence of 120 months in prison.

                                             II.

       On appeal, Espinosa argues that his proffer “was truthful even though it was

bizarre and, therefore, the District Court erred in not sentencing him under the safety

valve provision.” Br. at 11. Espinosa had the burden of establishing that he was entitled


       4
         The District Court stated: “I rely on your failure to disclose information with
respect to what occurred in Puerto Rico before your boarding of the plane to Philadelphia.
I find that you clearly knew more than you have disclosed to the Government with respect
to that aspect of the transaction.” App. 41.

                                             -5-
to the benefit of the provision. Sabir, 117 F.3d at 754. In our view, there is no basis to

disturb his sentence.5

       The District Court was in the best position to assess the completeness and veracity

of Espinosa’s account of his offense, and it did so more than adequately. The Court

listened to the government’s version of the proffer, as well as that of defense counsel and

Espinosa. It carefully questioned both the government and Espinosa about why someone

would attempt to smuggle approximately $800,000 worth of cocaine into Philadelphia for

people he had never met, and why those people would trust Espinosa with such an

undertaking. Espinosa’s vague responses to these questions strain credulity. Having

reviewed the record of the sentencing proceeding, we do not believe the District Court

clearly erred in finding that Espinosa had more information than he relayed to the

government. As a result, and for the thorough and persuasive reasons stated by the Court

in the record, we conclude that the District Court properly ruled that Espinosa failed to

qualify for application of the safety valve provision.6

       Accordingly, we will affirm.


       5
         The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, United States v. Navarro,
476 F.3d 188, 191 (3d Cir. 2007). We review legal conclusions de novo and factual
findings for clear error. Sabir, 117 F.3d at 752.
       6
        Espinosa also argues on appeal that the District Court erroneously considered the
sentencing guidelines to be mandatory, in violation of United States v. Booker, 543 U.S.
220 (2005). Espinosa, however, was sentenced to the statutory minimum under 21 U.S.C.
§ 841(b)(1)(A); we therefore reject his contention. See United States v. Williams, 464
F.3d 443, 449 (3d Cir. 2006).

                                             -6-
