                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                      FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              February 23, 2006
                              No. 04-16311                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 04-20513-CR-FAM


UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

LUIS QUINONES,

                                                          Defendant-Appellant.


                        ________________________

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

                            (February 23, 2006)


Before ANDERSON, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:
      Luis Quinones appeals his 120-month sentence which was imposed after he

pled guilty to conspiracy to possess with intent to distribute heroin, in violation of

21 U.S.C. § 846.     On appeal, Quinones argues that the district court erred by

finding that he did not provide a complete and truthful statement about his

involvement in the instant offense and therefore did not qualify for safety-valve

relief under U.S.S.G. § 5C1.2(a). After careful review, we affirm.

      We review for clear error the district court’s factual determinations in its

decision to deny safety-valve relief. United States v. Johnson, 375 F.3d 1300,

1301 (11th Cir. 2004). We will not find clear error unless we are “left with a

definite and firm conviction that a mistake has been committed.” United States v.

Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (quotation omitted). “Credibility

determinations are typically the province of the fact finder because the fact finder

personally observes the testimony and is thus in a better position than a reviewing

court to assess the credibility of witnesses.” United States v. Ramirez-Chilel, 289

F.3d 744, 749 (11th Cir. 2000). Therefore, “a trial judge’s choice of whom to

believe is conclusive on the appellate court unless the judge credits exceedingly

improbable testimony.” Id. (quotation and alteration omitted).

      Under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a), a sentencing court

“shall” impose a sentence “without regard to any statutory minimum sentence, if



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the court finds at sentencing,” that the defendant has met the following five

requirements:

      (1) The defendant does not have more than 1 criminal history point . . .;

      (2) The defendant did not use violence or credible threats of violence
      or possess a firearm or other dangerous weapon . . . 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 . . . ; 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 . . . .

18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). To meet the final factor of §§ 3553(f)

and 5C1.2(a) -- the “tell-all provision” -- “the defendant has an affirmative

responsibility to truthfully disclose to the government all information and

evidence that he has about the offense and all relevant conduct.” Johnson, 375

F.3d at 1302 (quotation omitted). The Sentencing Guidelines provide that if a

defendant meets the criteria in U.S.S.G. § 5C1.2(a), he is entitled to a two-level

decrease of his base offense level. U.S.S.G. § 2D1.1(b)(6) (2003). The defendant




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carries the burden to demonstrate that he has met all of the safety-valve factors.

Johnson, 375 F.3d at 1302.

       Here, prior to overruling Quinones’s objection to the probation officer’s

failure to recommend a safety-valve reduction, the district court heard the

testimony of two government witnesses who described Quinones’s activities

relating to the charged crime. Notably, this testimony differed from Quinones’s

own written account of the underlying enterprise and his participation in it.1 At

the sentencing hearing, Quinones filed a “Statement of Criminal Conduct Under

Safety Valve Requirement” in support of his objection, but did not testify. After

hearing the government’s testimony in support of denying safety-valve relief and

considering Quinones’s written submission, the district court explained that it did

not believe Quinones’s safety-valve statement because Quinones did not testify.


       1
         From our own review of the record, we note the following inconsistencies between
Quinones’s safety-valve statement, his PSI, and the testimony given at the evidentiary hearing
before the district court: (1) in Quinones’s written statement, he said he was hired by Palmer for
$1,000 and that Palmer told him “what to do, where to go, and who would be involved,” but
according to Palmer, it was Quinones who did the hiring and who offered Palmer $1,000 for his
participation; (2) in Quinones’s written statement, he claimed the heroin belonged to Palmer, but
Palmer said the heroin belonged to Quinones, and both Palmer and Duarte stated that Quinones
entered Palmer’s Camry with a box, later revealed to contain heroin; (3) Quinones claimed that he
did not speak or handle the heroin during the meeting in the Walgreen’s parking lot, but according
to the PSI, when the confidential informant asked the occupants of the Camry to see the heroin, it
was Quinones who instructed the backseat passenger to hand him a box, and Quinones who opened
and showed the contents of the box, which was heroin, to the informant; and (4) Quinones said in
his statement that, once the transaction moved from the Walgreen’s parking lot, he was not involved
in the discussions, but Zapata testified at the sentencing hearing that Quinones remained involved,
including asking Zapata “to see the money” and communicating to Zapata that he (Quinones) could
be a contact for future narcotics transactions.

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The court further found, in light of the evidence before it, that Quinones failed to

provide a truthful statement about the entire offense and therefore did not meet his

burden under U.S.S.G. § 5C1.2(a)(5).

      Because the district court was in the best position to evaluate the credibility

of the two witnesses who testified at the sentencing hearing, we will not disturb

the district court’s decision to believe the witnesses’ accounts and reject

Quinones’s written statement in support of safety-valve relief, or the district

court’s finding that Quinones’s safety-valve statement was incomplete in light of

the testimony presented. See Ramirez-Chilel, 289 F.3d at 749. The testimony the

district court chose to believe was not exceedingly improbable.        Id.   On this

record, the district court did not clearly err in finding that Quinones failed to

disclose truthfully all information and evidence about the attempted heroin sale.

Accordingly, the district court did not reversibly err in finding that Quinones did

not meet his burden under the “tell-all provision” of U.S.S.G. § 5C1.2(a).

      AFFIRMED.




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