                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3934
UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee,
                                  v.

LUIS MONTES,
                                                Defendant-Appellant.

                          ____________
           Appeal from the United States District Court for
          the Northern District of Illinois, Eastern Division.
               No. 03 CR 21—Ruben Castillo, Judge.
                          ____________
      ARGUED JUNE 16, 2004—DECIDED AUGUST 24, 2004
                          ____________



  Before COFFEY, RIPPLE and WILLIAMS, Circuit Judges.
  RIPPLE, Circuit Judge. Luis Montes pleaded guilty to pos-
sessing with intent to distribute more than five kilograms of
cocaine. See 21 U.S.C. § 841(a)(1). The district court sen-
tenced him to 120 months’ imprisonment, the statutory min-
ium under § 841(b)(1)(A), and to five years’ supervised
release. Mr. Montes appeals his sentence. He submits that
the court should have granted him relief from the statutory
minimum sentence under the “safety valve” provision. See
18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. For the reasons set
forth in the following opinion, we affirm the judgment of
the district court.
2                                                  No. 03-3934

                               I
                      BACKGROUND
   In January of 2003, members of a drug task force arrested
Mr. Montes after seeing a man, later identified as Mr. Montes’
co-defendant Francisco Barrera-Martinez (“Barrera”), hand
him a duffel bag that turned out to contain cocaine. On the
day of Mr. Montes’ arrest, the officers had observed Barrera
engaging in suspected drug activity and had followed him
first to an apartment where he picked up the duffel bag and
then to Mr. Montes’ garage. One of the agents, Officer
Kosmowski, saw Barrera drive up to the garage, exit his
truck with the bag, “hand[ ] it over to” Mr. Montes and then
drive away. R.88-1 at 95. After Mr. Montes carried the bag
into the garage, another agent, Officer Howard, approached
and detained him. During a protective sweep, Officer Howard
saw what he believed to be bricks of packaged cocaine pro-
truding from the bag, which was lying open on the garage
floor. After Mr. Montes’ arrest, the officers seized 14.97
kilograms of cocaine from the bag.
  Mr. Montes entered into a written plea agreement, which
stated that he “received a duffel bag containing approximately
14.97 kilograms of mixtures containing cocaine from
Barrera-Martinez, and [that he] knew that the duffel bag
contained a controlled substance.” R.66 at 2-3. At his plea hear-
ing, however, Mr. Montes disagreed with the Government’s
summary of the evidence. He denied that he physically had
“received” the bag. R.89-1 at 15-16. Mr. Montes did agree that
the bag was in the garage with him. Id. at 16. The Government
noted that Mr. Montes’ comment gave it “some pause con-
cerning acceptance,” but thought that a sufficient factual
basis remained for the plea; the court accepted Mr. Montes’
plea. Id. at 17.
  Mr. Montes later met with the Government in an effort to
qualify for the safety valve exception. During this proffer
No. 03-3934                                                 3

interview, Mr. Montes stated that, on the afternoon of Mr.
Montes’ arrest, Barrera had called him and asked to borrow
a car. Mr. Montes therefore went to the garage to give
Barrera the keys to a Pontiac Grand Prix. Mr. Montes stated
that he did not see the bag, that he did not see Barrera get
the bag or anything else out of his truck and that Barrera
never gave him a bag. Mr. Montes initially stated that he
had not known Barrera to sell drugs. Later in the same in-
terview, however, Mr. Montes changed his story, and stated
that Barrera had called him the morning of his arrest and
asked him to put some cocaine in the “traps” (hidden
compartments) located in the Grand Prix. Mr. Montes stated
that he did not know the quantity of what Barrera wanted
to put in the traps. Mr. Montes admitted that he was going
to put the cocaine in the traps in exchange for $1,000 from
Barrera.
   The Government also asked Mr. Montes about his room-
mate Manuel Martinez-Madrigal (“Madrigal”). Mr. Montes
stated that Madrigal owned the Grand Prix but let him use
it anytime he wanted. Mr. Montes stated that Madrigal had
taught him how to use the traps in the Grand Prix, but he
stated that he did not know why Madrigal had shown him
the traps and that he had never put anything in the traps.
Mr. Montes admitted that, on six or seven occasions, he had
driven other cars for Madrigal in exchange for $1,000. He
said that he had suspected, but did not know for certain, that
those cars contained drugs. Mr. Montes also stated that
Madrigal had told him that the cars he moved at Madrigal’s
direction had traps but he did not know how to open them.
   The Government filed a sentencing memorandum in which
it argued that Mr. Montes did not qualify for a reduced
sentence under the safety valve provision because he did
not provide a truthful and complete account of the offense
of conviction and of the relevant conduct. The Government
4                                                 No. 03-3934

characterized Mr. Montes’ safety valve statement as “an at-
tempt to minimize knowledge and participation by admit-
ting only the barest details of the charged conduct.” R.70
at 2, 6. Mr. Montes submitted a memorandum responding
that he had always disputed the officers’ version of his ar-
rest (that he had exchanged the bag with Barrera), but had
not denied that he possessed the bag of cocaine or that he
intended to help Barrera dispose of it. Mr. Montes argued
that the contradiction between his and the officers’ version
did not mean that he did not give truthful information
about the offense. Mr. Montes also argued that he was not
required to admit that, on several occasions, he had driven
cars for Madrigal that he assumed held cocaine.
  At sentencing, the district court heard arguments on the
issue and determined that Mr. Montes did not qualify for
the safety valve exception because he was not completely
truthful during his proffer interview. In particular, the court
found incredible Mr. Montes’ insistence that he did not
physically receive the bag from Barrera or even see the bag
before his arrest:
    I find that the defendant has the burden of establishing
    that he has completely and truthfully cooperated, and
    it defies common sense and the testimony of officers
    that I found credible that that exchange did take place.
      I also don’t believe that a bag of this quantity of co-
    caine just gets tossed on a garage floor for further pack-
    ing, if you will, at some point in the future but for these
    officers pulling up.
       And I concluded that in the opinion that I issued, that
    it was the officers pulling up that caused this bag to be
    dropped, and that’s why I’m really troubled by the fact
    that that has been denied.
    ....
No. 03-3934                                                  5

      It gives me pause then as to Mr. Montes’ truthfulness
    in his proffer, and then it calls into question a bunch of
    other things that the government has called into ques-
    tion, which leave me at the end of the day unable to say
    that he’s provided the truthful information that he’s
    required to provide.
Sent. Tr. at 5-7. The district court later added: “I am given
pause by Mr. Montes’ denial of the exchange taking place
the way I conclude that it went down based on a preponder-
ance of the evidence and the testimony that I heard at the
[suppression] hearing.” Id. at 15. The court concluded that
because Mr. Montes was “not completely truthful,” when he
“needed to be 100 percent truthful,” he did not warrant the
safety valve relief. Id. at 19. Accordingly, the district court
sentenced Mr. Montes to the statutory ten-year minimum
sentence.


                              II
                        ANALYSIS
A. Background
  The “safety valve” provision permits a court to sentence
certain first-time, non-violent drug offenders who were not
organizers of criminal activity and who made a good faith
effort to cooperate with the Government to a sentence under
the federal guidelines instead of the applicable statutory
mandatory minimum sentence. See 18 U.S.C. § 3553(f);
U.S.S.G. § 5C1.2; see also United States v. Arrington, 73 F.3d
144, 147-48 (7th Cir. 1996) (discussing the safety valve’s
legislative history and explaining that Congress intended to
remedy the former system, under which higher-level drug
offenders with information to trade often fared better than
less culpable offenders because courts could impose a
6                                                  No. 03-3934

sentence below the statutory minimum only when the
Government filed a motion based on substantial assistance). A
sentencing court “shall” apply the safety valve provision for
any defendant who meets five criteria:
    (1) the defendant does not have more than 1 criminal
    history point, as determined under the sentencing guide-
    lines;
    (2) the defendant did not use violence or credible threats
    of violence or possess a firearm or other dangerous weap-
    on (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;
    (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 section
    408 of the Controlled Substances Act; 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 con-
    duct 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 require-
    ment.
18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a) (emphasis added).
The only question before us on appeal is whether the district
court correctly determined that Mr. Montes did not satisfy the
fifth criteria. The defendant bears the burden of proving by
a preponderance of evidence his eligibility for the safety
No. 03-3934                                                      7

valve. See United States v. Ramirez, 94 F.3d 1095, 1101 (7th
Cir. 1996). We review the district court’s interpretation of
the safety valve provision under the statute and the sen-
tencing guidelines de novo and its factual findings concerning
a defendant’s eligibility for the safety valve for clear error.
See id. at 1099.
  As we noted earlier, the Government opposed Mr. Montes’
safety valve statement as an attempt to minimize his role in
the drug offense by separating himself from the cocaine in
the bag, by denying knowledge of his co-defendant Barrera’s
drug activity and by claiming that he did not know why his
roommate Madrigal had shown him how to use the Grand
Prix’s traps. The district court concluded that Mr. Montes
had failed to prove that he had provided truthful informa-
tion to the Government. In particular, the court found his
denial of the bag’s exchange to “def[y] common sense,”
Sent. Tr. at 5, and, consequently, questioned the sincerity of
the other safety valve statements challenged by the Govern-
ment. Mr. Montes contends that his safety valve eligibility
should not hinge on the fact that his statements contradicted
the officers’ representations that Barrera handed him the
bag because: (1) whether he actually or constructively
possessed the bag makes no difference for purposes of legal
      1
guilt; and (2) the safety valve provision does not require
that he agree with the officers’ version of how the arrest
took place.


B. Scope of the Defendant’s Disclosure Obligation
  To address Mr. Montes’ claim, we must understand the
breadth of subsection (a)(5)’s requirement that the defen-
dant disclose “all information” he has about “the offense or


1
  See United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir. 1990)
(holding that constructive possession suffices).
8                                                      No. 03-3934

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). First, the
application notes to § 5C1.2 define “offense or offenses that
were part of the same course of conduct or of a common
scheme or plan” to mean “the offense of conviction and all
relevant conduct.” U.S.S.G. § 5C1.2(a)(5), cmt. n.3. Section
1B1.3, in turn, defines “relevant conduct” for sentencing
purposes to include
    (1) (A) all acts and omissions committed, aided, abet-
            ted . . . by the defendant; and
         (B) in the case of a joint criminal activity (a criminal
             plan, scheme, endeavor, or enterprise under-
             taken by the defendant in concert with others,
             whether or not charged as a conspiracy), all rea-
             sonably foreseeable acts and omissions of others
             in furtherance of the jointly undertaken criminal
             activity,
         that occurred during the commission of the offense
         of conviction, in preparation for that offense, or in
         the course of attempting to avoid detection or re-
         sponsibility for that offense[.]
                        2
U.S.S.G. § 1B1.3(a)(1). The application notes to § 1B1.3 elab-
orate on when offenses form a “common scheme or plan”
and when offenses are part of “the same course of conduct.”
U.S.S.G. § 1B1.3, cmt. n.9. Offenses form a “common scheme
or plan” if they are “substantially connected to each other
by at least one common factor, such as common victims,
common accomplices, common purpose or similar modus
operandi.” Id. at cmt. n.9(A). Those offenses not connected
sufficiently to constitute a “common scheme or plan” may

2
  See also United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir.
1995) (interpreting the scope of § 3553(f) and § 5C1.2).
No. 03-3934                                                       9

nonetheless be part of the “same course of conduct” if they
are “sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single episode,
spree, or ongoing series of offenses.” Id. at cmt. n.9(B).
   Despite Mr. Montes’ claim that his candor regarding the
events of his arrest is irrelevant because he admitted enough
facts to render him culpable, the safety valve does not so
restrict the type of information that a defendant must pro-
vide. See Arrington, 73 F.3d at 149 (stating that § 3553(f)
requires a defendant to “disclose ‘all information’ concern-
ing the course of conduct—not simply the facts that form
the basis for the criminal charge”). We have considered, at
least implicitly, a similar question in United States v. Ponce,
358 F.3d 466 (7th Cir. 2004). In Ponce, we affirmed the dis-
trict court’s refusal to apply the safety valve for the defen-
dant who had admitted to arranging an interstate shipment
of drugs and numerous related facts, but disputed the
representations of undercover federal agents (whom the
court credited) that he was present at the drug pick-up. Id.
           3
at 468-69.


3
   See also United States v. Thompson, 106 F.3d 794, 801 (7th Cir.
1997) (denying safety valve relief when defendants “continued to
cling to a false version of events and dispute their own cul-
pability”); accord United States v. Reynoso, 239 F.3d 143, 145 (2d
Cir. 2000) (affirming denial of safety valve for defendant who
acknowledged distributing crack cocaine but denied having served
as a drug courier or deliverer based on her unsupportable story
that she had stolen the drugs); United States v. White, 119 F.3d 70,
74 (1st Cir. 1997) (upholding the district court’s determination
that defendant was untruthful in her attempt to minimize her role
in a drug conspiracy); United States v. Gambino, 106 F.3d 1105,
1111-12 (2d Cir. 1997) (affirming denial of safety valve relief
where defendant made “incredible” claims about his role in the
                                                     (continued...)
10                                                     No. 03-3934

   Moreover, the safety valve provision demands “all infor-
mation” that the defendant has concerning the offense. This
plainly broad language suggests that “any and all information
that the defendant possesses concerning the offense must be
provided to the Government.” United States v. Thompson, 81
F.3d 877, 879 (9th Cir. 1996) (finding that defendant was
required to reveal all the information he had regarding the
offense, including the name of his source); see also United
States v. Alvarado, 326 F.3d 857, 862 (7th Cir. 2003) (affirming
district court’s denial of safety valve where defendant
admitted that he had received a shipment of drugs from his
sister but had not disclosed his sister’s contact information);
United States v. Rodriguez, 69 F.3d 136, 143 (7th Cir. 1995) (af-
firming denial of safety valve where defendant had “produced
no information concerning the offense, including the
                                            4
identities of drug suppliers or buyers”). As applied to Mr.


3
   (...continued)
drug offense); United States v. Edwards, 65 F.3d 430 (5th Cir. 1995)
(finding no error in denial of safety valve where defendant had
not provided the name of his supplier and had asserted that he
possessed a lesser drug quantity than asserted by the Government
and credited by the court even though the difference in quantity
was not relevant to culpability or level of penalty).
4
   Other courts similarly have read the safety valve disclosure re-
quirement broadly. See United States v. Adu, 82 F.3d 119, 124 (6th
Cir. 1996) (finding that “a defendant must truthfully provide all
information he has concerning the offense of conviction and all
relevant conduct” (citing United States v. Long, 77 F.3d 1060 (8th
Cir. 1996))); Acostas-Olivas, 71 F.3d at 377 (accepting the argument
that defendant must “tell the government all he knows about the
offense of conviction and the relevant conduct, including the iden-
tities and participation of others”); United States v. Buffington, 879
F. Supp. 1220, 1223 (N.D. Ga. 1995) (finding that defendant must
                                                        (continued...)
No. 03-3934                                                  11

Montes then, the safety valve provision required at a mini-
mum that he be truthful about the details of his own in-
volvement in the cocaine transaction and about any other
activities related to the course of conduct or plan.


C. The Truthfulness of Mr. Montes’ Safety Valve Statement
  With our determination that § 5C1.2 covers Mr. Montes’
statements challenged by the Government, we turn to the
district court’s factual finding that Mr. Montes did not truth-
fully provide all the relevant information and evidence he
had to the Government. Mr. Montes suggests that the district
court refused to apply the safety valve provision simply be-
cause he had disagreed with the Government. However, the
record demonstrates that the district court conducted its
own fact finding regarding the events leading to Mr. Mon-
tes’ arrest, including the officers’ direct and cross-examina-
tion testimony at an earlier suppression hearing and the
parties’ safety valve arguments at the sentencing hearing. See
Sent. Tr. at 5-7 (determining that Mr. Montes’ statement
went against “common sense,” the testimony of officers cre-
dited by the court and the court’s finding that it was the
officers’ arrival that caused the bag to be tossed onto the
garage floor).
  The district court was entitled to credit the officers’ testi-
mony that Barrera handed the bag to Mr. Montes. See United
States v. Thornton, 197 F.3d 241, 247 (7th Cir. 1999) (“In a
swearing contest, the trial judge’s choice of whom to believe
will not be rejected unless the judge credited exceedingly im-



4
  (...continued)
disclose information “relevant to his own course of conduct and
his immediate chain of distribution”).
12                                                    No. 03-3934
                        5
probable testimony.”). Moreover, Mr. Montes’ lack of candor
was an appropriate fact for the court to consider in deter-
mining eligibility under the safety valve provision. See Ponce,
358 F.3d at 468-69. And, finally, Mr. Montes’ bare assertion
that he was truthful and that the Government was not, see
Appellant’s Reply Br. at 5, does not satisfy his burden to
prove by a preponderance of the evidence that he provided
a full and honest disclosure. See Ramirez, 94 F.3d at 1101
(concluding that “the language and purpose of the safety
valve provision require that the defendant, not the govern-
ment,” prove his entitlement to the safety valve, “which in-
cludes proof of complete and honest disclosure”); United
States v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996) (finding in-
sufficient the defendant’s bare assertion that she had provided
all relevant information). In sum, the district court did not
clearly err in finding that Mr. Montes had not provided
completely truthful information and, thus, did not qualify
for relief from the statutory minimum sentence under
§ 3553(f) and U.S.S.G. § 5C1.2.


                            Conclusion
  For the foregoing reasons, we affirm the judgment of the
district court.
                                                        AFFIRMED
A true Copy:


5
   See also United States v. Alvarado, 326 F.3d 857, 862 (7th Cir.
2003) (noting that “it is well established that the district court’s
choice of whom to believe is almost never vulnerable to a finding
of clear error”); United States v. Rodriguez, 69 F.3d 136, 144 (7th
Cir. 1995) (“The court’s determination [of safety valve eligibility]
is a fact-specific one and will often depend on credibility determi-
nations that cannot be replicated with the same accuracy on
appeal.”).
No. 03-3934                                            13

       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—8-24-04
