                    Case: 12-10149         Date Filed: 08/02/2012   Page: 1 of 6

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10149
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 1:11-cr-20345-FAM-3



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

JOSE ENRIQUE BARRETO,
a.k.a. Carlos,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (August 2, 2012)

Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         Jose Barreto appeals his 60-month sentence, imposed after he pleaded guilty
               Case: 12-10149    Date Filed: 08/02/2012   Page: 2 of 6

to conspiracy to distribute 100 grams or more of heroin, in violation of 21 U.S.C.

§ 846. On appeal, he argues that the district court erroneously declined to

consider evidence from Barreto’s investigator when determining whether Barreto

was eligible for safety-valve relief under U.S.S.G. § 5C1.2. For the reasons set

forth below, we affirm Barreto’s sentence.

                                          I.

      In 2009, Barreto conspired with Alexis Quiros and Dionide Ramos to sell

heroin to an undercover officer. After Barreto pleaded guilty to conspiracy to

distribute 100 grams or more of heroin, a probation officer prepared a presentence

investigation report. The probation officer did not recommend granting Barreto

safety-valve relief.

      At the sentencing hearing, Barreto objected that, among other things, he was

eligible for safety-valve relief. The government stated that Barreto had been

debriefed, but the agents stopped the interview when he refused to identify his

co-conspirators in photographs. Thus, the government opposed granting Barreto

safety-valve relief. Barreto, through counsel, stated that he had told the agents

how he met Ramos and Quiros, described the time he spent living with Ramos,

and stated that a person in Orlando was named Oscar. The government responded

that the agents did not know who Oscar was because Barreto had refused to look

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at the photographs. The court stated that Barreto was not eligible for safety-valve

relief because he had not looked at the photographs, but the court was willing to

hear Barreto testify in open court to resolve the safety-valve dispute.

      Barreto stated that his investigator was at the debriefing, and he asked to

admit her report into evidence. He also argued that the agents had already

identified the individuals and obtained their photographs. Barreto informed the

court that he was not willing to testify. The court found that Barreto had not met

his burden to show that he had provided the government with complete and

truthful information regarding the offense, including information as to the

involvement of others. Barreto asked to introduce his investigator’s report, his

investigator’s resume, and the government’s wiretap application, which contained

facts relevant to the debriefing. The court allowed Barreto to file the documents,

but declined to consider them. The court explained that it would only be able to

determine whether Barreto’s statement was truthful if it heard Barreto testify. The

court was unable to make such a finding based on Barreto’s past statements or

based on the investigator’s view of what had occurred during the debriefing.

      After the court sentenced him to the statutory minimum sentence of 60

months’ imprisonment, Barreto reiterated his objection that the court should have

heard more evidence. Barreto noted that both his investigator and the

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government’s agent were in court. The government stated that the investigator’s

report did not cover everything that was discussed during the debriefing, and the

government repeated its argument that Barreto had not identified the individuals in

photographs. Barreto agreed that he had refused to look at photographs. The

court again explained that it could only determine whether Barreto’s statement was

complete and truthful after hearing Barreto testify. As the investigator and agent

were not the persons deciding whether Barreto had made a statement that would

render him eligible for safety-valve relief, their opinions were irrelevant. Because

the court was not at the debriefing, a report summarizing that meeting was not

helpful in making that determination.

                                          II.

      We review the denial of an evidentiary hearing for an abuse of discretion.

United States v. Hill, 643 F.3d 807, 874 (11th Cir. 2011), cert. denied, 132 S.Ct.

1988 (2012). “A court, by definition, abuses its discretion when it bases a

decision on an erroneous legal premise” or on a clear error in judgment. Id. We

review a district court’s factual determinations regarding safety-valve relief for

clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). The

defendant bears the burden of proving his eligibility for safety-valve relief. Id.

      A defendant is eligible for safety-valve relief if he meets the five criteria set

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forth in U.S.S.G. § 5C1.2. Cruz, 106 F.3d at 1557. The fifth prong, which is the

only factor in dispute here, requires the defendant to truthfully provide the

government with “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.” U.S.S.G. § 5C1.2(a)(5). Information that the defendant must

disclose includes “information relating to the involvement of others and to the

chain of the narcotics distribution.” Cruz, 106 F.3d at 1557. The defendant even

must disclose information of which the government is already aware. United

States v. Figueroa, 199 F.3d 1281, 1283 (11th Cir. 2000). The district court, not

the government, must make the factual finding as to whether the defendant

provided complete and truthful information to the government. United States v.

Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000).

      The district court did not abuse its discretion in declining to consider

evidence from Barreto’s investigator. See Hill, 643 F.3d at 874. To receive

safety-valve relief, Barreto was required to give a statement that was both truthful

and complete. See U.S.S.G. § 5C1.2(a)(5). The district court was required to

make its own determination as to whether Barreto’s statement was truthful. See

Brownlee, 204 F.3d at 1305. The district court’s determination that it needed to

hear Barreto’s version of events, rather than a summary of his statements as

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recounted by an investigator or an agent, was not a clear error in judgment. See

Hill, 643 F.3d at 874. Hearing Barreto testify would have allowed the court to

assess his candor and truthfulness based on his answers and demeanor.

      Nor did the court abuse its discretion in determining that Barreto’s

testimony was necessary as to the issue of completeness. See id. Barreto and the

government agreed that Barreto had refused to confirm the identities of individuals

that he had discussed during the debriefing. Such information was required to

obtain safety-valve relief. See Cruz, 106 F.3d at 1557. The court gave Barreto the

opportunity to provide this information, but he declined to do so. Because the

parties agreed that Barreto had not identified the individuals involved in the

conspiracy in photographs, testimony from an investigator or an agent confirming

that fact would not have shed additional light on the situation. Thus, the district

court did not abuse its discretion in declining to consider evidence from Barreto’s

investigator in regards to whether Barreto’s statement was both truthful and

complete.

      For the foregoing reasons, we affirm Barreto’s sentence.

      AFFIRMED.




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