                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                      09-2998
                                  _______________

                          UNITED STATES OF AMERICA

                                          v.

                                      LAM TA,
                                           Appellant

                                  _______________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                      (D.C. Criminal No. 2-06-cr-00585-005)
                    District Judge: Honorable Gene E.K. Pratter
                                 _______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 9, 2010

      BEFORE: MCKEE, Chief Judge, SLOVITER and COWEN, Circuit Judges

                               (Filed: January 3, 2011)
                                  _______________

                                     OPINION
                                  _______________

COWEN, Circuit Judge.

      Appellant, Lam Ta, appeals from the District Court’s order sentencing him to a

statutory mandatory minimum sentence of ten years’ imprisonment. Lam Ta contends
that the District Court erred in denying him a safety valve reduction. We perceive no

error and will affirm the judgment of the District Court.

                                             I.

       In December 2007, a grand jury in the United States District Court for the Eastern

District of Pennsylvania returned an indictment charging Lam Ta with various drug

trafficking offenses arising from his participation in the Lien Dam drug trafficking

organization. Lam Ta subsequently pled guilty to one count of conspiracy to distribute

MDMA (ecstasy) in violation of 21 U.S.C. § 846; one count of distribution of MDMA

and methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); and six counts

of distribution of MDMA in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). As a

consequence of his guilty plea, Lam Ta faced a statutory mandatory minimum sentence

of ten years’ imprisonment. See 21 U.S.C. § 841(a)(1)(A).

       Lam Ta filed a motion seeking to limit the applicability of the statutory minimum

sentence pursuant to the “safety valve provision,” § 5C1.2 of the United States

Sentencing Guidelines. See 18 U.S.C. § 3553(f). Under this provision, a district court

may depart from the statutory mandatory minimum sentence when calculating a

defendant’s sentence if, among other things, the defendant establishes that he has

“truthfully provided to the Government all information and evidence [he] has concerning

the offense or offenses that were part of the same course of conduct or of a common




                                             2
scheme or plan.”1 Id. § 3553(f)(5). The government opposed Lam Ta’s motion on the

ground that he had failed to provide “all information” concerning his offense conduct.

Specifically, the government contended that although Lam Ta had valuable information

about his customers, he withheld such information throughout the proffer sessions,

disclosing only customer names and details that he believed the investigators already

knew.

        At the sentencing hearing, the District Court initially indicated that it found the

government’s argument persuasive. The court went on, however, to give Lam Ta an

opportunity to take the stand and “earn this safety valve protection” by disclosing any

additional information he might have. (App. 34.) Despite this opportunity, Lam Ta did

not provide any new information about his customers or the Lien Dam trafficking

organization in general. He explained to the court that he had fully cooperated with the

government, but was unable to provide them with the information they sought because he

did not remember his customers’ names due to the passage of time (approximately four

years) and his drug use. At that time, the District Court asked Lam Ta’s counsel whether

he had done any medical or psychological testing to determine whether his client’s drug

use might affect his memory. Counsel stated that he had not. The court also asked

whether the government might have been misinterpreting Lam Ta’s conduct due to

cultural differences. Counsel indicated that, while such factors could have been partially



        1
         It is undisputed that Lam Ta met the first four requirements of the safety valve
provision. See 18 U.S.C. § 3553(f)(1)-(4).

                                               3
at play, “what [he] saw going on was Mr. Ta truly struggling to remember things.” (App.

53.)

       Following the hearing, the District Court denied Lam Ta’s safety valve motion and

imposed the mandatory minimum sentence. This appeal followed.

                                             II.

       We see no error in the District Court’s determination that Lam Ta did not qualify

for safety valve relief.2 Lam Ta bore the burden of demonstrating by a preponderance of

the evidence that he had been candid with investigators and had volunteered “all

information” he had relating to his trafficking activities. See Sabir, 117 F.3d at 754; see

also United States v. O’Dell, 247 F.3d 655, 675 (6th Cir. 2001). The District Court found

that Lam Ta did not meet this burden because he withheld information it was reasonable

to expect him to know. As the District Court explained:

       [I]t would appear from both the number of counts that Mr. Ta has been—
       was charged with, what he pled guilty to, the length of time of the
       transactions, the extent of them, in comparison even to the other
       Defendants in the case, Mr. Ta is not a small, insignificant character in this
       drama. And one would expect or one would have expected a little bit more
       fulsome array of information, or once reminded of something, a little more
       to come forward than simply an assent to one piece of information at a
       time.

(App. 60.) This finding was not clearly erroneous.



       2
         We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s ultimate refusal to invoke the safety valve
provisions, United States v. Wilson, 106 F.3d 1140, 1143 (3d Cir. 1997), but can reject
the District Court’s factual findings that Lam Ta did not provide the requisite information
only if we conclude that those findings were clearly erroneous, United States v. Sabir,
117 F.3d 750, 752 (3d. Cir. 1997).
                                             4
       Furthermore, we disagree with Lam Ta’s contention that the District Court

relinquished its obligation to evaluate independently whether he met his burden, and

instead deferred to the government’s assessment of his truthfulness; the record reflects

that the court conducted an independent assessment by reviewing the parties’ sentencing

memoranda, evaluating Lam Ta’s credibility on the stand, hearing oral argument from

counsel, and even inquiring into whether there were any extenuating circumstances that

might explain Lam Ta’s apparent lack of cooperation.

                                            III.

       For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.




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