     09-3706-cr
     United States v. Martinez

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 25 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROGER J. MINER,
 9                RICHARD C. WESLEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               09-3706-cr
17
18       CARLOS MARTINEZ,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                         Laurie S. Hershey, Manhasset,
23                                              New York.
24
25       FOR APPELLEES:                         Reed M. Brodsky, Andrew L. Fish,
26                                              for Preet Bharara, United States
27                                              Attorney’s Office for the



                                                  1
 1                              Southern District of New York,
 2                              New York, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Daniels, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Carlos Martinez challenges his sentence, arguing that
12   the district court erred in denying him safety-valve relief
13   and in concluding that he was a leader or organizer of a
14   drug conspiracy. We assume the parties’ familiarity with
15   the underlying facts, the procedural history, and the issues
16   presented for review.
17
18   [1] Martinez argues that he discharged his burden of
19   proving eligibility for safety-valve relief, see 18 U.S.C.
20   § 3553(f); U.S.S.G. § 5C1.2(a), and that the district court
21   erred in concluding otherwise. Reviewing the district
22   court’s factual findings for clear error and its legal
23   conclusions de novo, United States v. Nuzzo, 385 F.3d 109,
24   118 (2d Cir. 2004), we disagree. Martinez had to prove,
25   inter alia, that “not later than the time of the sentencing
26   hearing,” he “truthfully provided to the Government all
27   information and evidence [he] has concerning the offense or
28   offenses that were part of the same course of conduct or of
29   a common scheme or plan.” 18 U.S.C. § 3553(f)(5); see also
30   United States v. Jimenez, 451 F.3d 97, 102-03 (2d Cir.
31   2006). Martinez misled the government in two safety-valve
32   proffer sessions. Moreover, his testimony at the sentencing
33   hearing--which he now says is the truth--conflicts with the
34   documentary evidence. On this record, we cannot say that
35   the district court erred in finding Martinez ineligible for
36   safety-valve relief. Accord Nuzzo, 385 F.3d at 119 n.25
37   (“While a district court may find the [truthful proffer]
38   criterion of the safety valve satisfied despite prior lies
39   and omissions, neither a district court nor this Court is
40   precluded from considering those prior lies and omissions in
41   determining whether the defendant has met his burden of
42   proving that the information provided as of sentencing is
43   complete and truthful.”); United States v. Schreiber, 191
44   F.3d 103, 107 (2d Cir. 1999) (“[A]n untruthful defendant
45   risks the possibility that his or her lies will be exposed
46   at the sentencing hearing itself, thus disqualifying the
47   defendant from relief.”).

                                  2
 1   [2] Martinez argues that the district court erred in
 2   finding that he was an organizer or leader in the drug
 3   conspiracy for purposes of Sentencing Guideline § 3B1.1.
 4   Our review is for clear error, United States v. Cuevas, 496
 5   F.3d 256, 267 (2d Cir. 2007), and we find none. An
 6   experienced police detective testified that recorded
 7   conversations between Martinez and a confidential source
 8   revealed Martinez to be a leader of the drug conspiracy; and
 9   Martinez himself testified that he had hired at least one
10   worker for his drug distribution business. This evidence
11   provides a sufficient basis for the district court’s
12   conclusion that Martinez was a leader or organizer of the
13   drug conspiracy. 1
14
15        Finding no merit in Martinez’s remaining arguments, we
16   hereby AFFIRM the judgment of the district court.
17
18
19                              FOR THE COURT:
20                              CATHERINE O’HAGAN WOLFE, CLERK
21
22




         1
           Additionally, this finding provides independent
     justification for the district court’s conclusion that
     Martinez is ineligible for safety-valve relief. See 18
     U.S.C. § 3553(f)(4).

                                  3
