
USCA1 Opinion

	




                                       United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1511                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              YESID F. JIMENEZ MARTINEZ,                                Defendant, Appellant.                                 ____________________          No. 95-1569                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    ALVARO MORENO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                     Coffin, and Rosenn,* Senior Circuit Judges.                                          _____________________                                 ____________________                                        ____________________               *Of the Third Circuit, sitting by designation.               Lenore Glaser,  by appointment  of the court,  for appellant               _____________          Yesid F. Jimenez Martinez.               Raymond  E.  Gillespie, by  appointment  of  the court,  for               ______________________          appellant Alvaro E. Moreno.               Michael J. Pelgro,  Assistant United  States Attorney,  with               _________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellee.                                 ____________________                                    April 24, 1996                                 ___________________               COFFIN, Senior Circuit Judge.  Defendant-appellants Yesid F.                       ____________________          Jimenez Martinez  and Alvaro E.  Moreno pled guilty  to narcotics          offenses  under 21 U.S.C.     841(a)(1) & 846  arising from their          participation in a cocaine  conspiracy.  At issue in  this appeal          are their claims of sentencing errors.                 Both defendants challenge  the district court's  decision to          hold  them  responsible  for   over  five  kilograms  of  cocaine          (implicating  the ten  year minimum  sentence  under 21  U.S.C.            841(b)(1)(A)(ii)),  and   the  court's  refusal  to   conduct  an          evidentiary  hearing.     Jimenez  also   contests  the   court's          determination that his disclosure to  a probation officer did not          satisfy  the   requirements  of  the   "safety  valve"  provision          contained in U.S.S.G.    5C1.2, which permits a judge to impose a          sentence below  the statutory  minimum.  Finally,  Moreno asserts          that  the  evidence  was  insufficient  to  warrant  a  two-level          enhancement for  obstruction of  justice.  Having  concluded that          the   court  considered   insufficiently  reliable   evidence  in          determining the  quantity of cocaine attributable  to Jimenez, we          vacate his sentence and remand for resentencing.  As to all other          issues, we affirm.                                      BACKGROUND1          Facts          _____                                        ____________________               1   We set forth the  facts as derived from  the uncontested          portions of the Presentence Report (PSR),  the transcripts of the          sentencing  hearings, see United States v. Dietz, 950 F.2d 50, 51                                ___ _____________    _____          (1st  Cir. 1991), and the  evidence adduced at  trial, see United                                                                 ___ ______          States v. Hanono-Surujun, 914 F.2d 15, 19 (1st Cir. 1990).              ______    ______________                                         -3-               Defendants' involvement in the  conspiracy began in the fall          of  1993,  with  co-conspirator Christopher  Fazio's  efforts  to          broker a five-kilogram cocaine deal with an undercover agent.  In          an  attempt to secure a  source for the  cocaine, Fazio contacted          Moreno, who responded that he "would come through with the deal."          A  meeting ensued between Moreno,  Fazio and the  agent, where in          contemplation of the five-kilogram deal, the  parties agreed to a          preliminary one-kilogram  purchase to take place  on November 10,          1993.  On  November 9,  Moreno introduced Fazio  to Jimenez,  the          "man who worked  for him, that delivers  coke for him, and .  . .          [who] was the transporter."  On November 10, Jimenez, accompanied          by Fazio, delivered one kilogram of cocaine to the agent.               On December 30,  further negotiations between  Fazio, Moreno          and  the agent took place.   Moreno proposed  splitting the five-          kilogram  transaction into  two separate  sales.  After  two more          meetings,  the  five-kilogram  deal, to  be  broken  up into  two          separate transactions, was scheduled for February 2, 1994.               On the  morning of  February 2, Moreno  spotted surveillance          agents outside his home, and cancelled the deal.  Upon hearing of          the   cancellation,  the  agents  left  their  positions  outside          Moreno's and  Jimenez's homes, but  returned a short  time later.          At that time,  Jimenez was observed  entering his home,  followed          shortly thereafter  by co-conspirator  Gabriel Uroujo  Perez, who          was carrying an empty  shoulder bag.  Uroujo  exited with a  full          shoulder bag, later  found to  contain just over  2 kilograms  of          cocaine.   A  search of  Jimenez's  home uncovered  an additional                                         -4-          123.8  grams of  cocaine.   The three  kilograms that  would have          completed the transaction were never found.               Jimenez  pled  guilty to  conspiracy to  distribute cocaine,          distribution of cocaine, and possession of cocaine with intent to          distribute.   Moreno  went to  trial, but,  after the  government          rested its case, pled guilty to conspiracy to distribute cocaine,          and distribution of cocaine.          Sentencing:  Jimenez          ____________________               The  probation   department  determined  that   Jimenez  was          accountable for  3.2615 kilograms of cocaine --  the one kilogram          sold on November 10,  1993 and the cocaine recovered  on February          2, 1994.  The government objected, contending that Jimenez should          be  liable for the whole  five kilograms negotiated.   On January          24,  1995, in  response to  the government's  objections, Jimenez          requested an  evidentiary hearing and order to the Government "to          present  any  witnesses  it intends  to  use  in  support of  its          objections."  This motion was denied.                Jimenez's sentencing  hearing took  place on April  3, 1995.          In   support  of   its   position,  the   government  relied   on          circumstantial  evidence and  one  piece of  direct evidence,  an          affidavit from co-defendant Ramin Mojabi, prepared on February 6,          1995, which stated that Jimenez was present during a December 30,          1993  meeting with Moreno and Fazio, and took part in discussions          concerning the five-kilogram deal.                Notwithstanding  Jimenez's  challenges  to  the  affidavit's          reliability, the court found that Jimenez was aware of the object                                         -5-          of the  conspiracy, the  five-kilogram deal, and  was, therefore,          responsible for the whole five kilograms.  In addition, the court          denied  Jimenez the benefit of  U.S.S.G   5C1.2,  which permits a          court  to  impose  punishment  without regard  to  the  statutory          minimum sentence.  While Jimenez had provided  information to the          probation  department,  he  did  not apprise  the  United  States          Attorney's Office, and  the court, therefore,  found that he  had          not  informed  the  "Government"   as  required  by     5C1.2(5).          Consequently, Jimenez was subject to the 10 year minimum sentence          -- not the  applicable guideline range of 70-87 months -- and was          sentenced accordingly to 120 months incarceration.           Sentencing:  Moreno          ___________________               Moreno's  sentencing hearings  took  place on  March 23  and          April  6, 1995.   On March 13, the  court denied Moreno's motions          for an evidentiary hearing  and for issuance of subpoenas  to co-          conspirators Jimenez and  Uroujo to  appear as  witnesses at  his          sentencing.  At the first hearing, Moreno testified that his role          in the  conspiracy was limited to  playacting the role  of a drug          dealer  in  order to  assist Fazio.    He further  contended that          because  he did not have the capability to produce the additional          three kilograms of  cocaine on February 2,  he could not  be held          responsible for  the total  negotiated amount of  five kilograms.          The court  rejected these  arguments, finding  Moreno responsible          for  over five kilograms, and increasing his offense level by two          in  accordance with his  role as a manager  and supervisor in the          conspiracy.  See U.S.S.G.   3B1.1(c).                         ___                                         -6-               The court further  found that Moreno  had phoned Fazio,  and          Moreno's  wife  had visited  Fazio,  in  an effort  to  influence          Fazio's  testimony at  Moreno's  trial.   Accordingly, the  court          enhanced  Moreno's   offense   level  another   two  levels   for          obstruction of  justice.   Moreno  was  sentenced to  188  months          incarceration.                                      DISCUSSION          A.   Sentencing Issues:  Jimenez               ___________________________               1.  Quantity of Drugs                   _________________               As  we  have often  recognized, sentencing  calculations for          drug  trafficking  offenses  are  largely  quantity-driven.   See                                                                        ___          United States v. Sepulveda,  15 F.3d 1161, 1196 (1st  Cir. 1993).          _____________    _________          In the conspiracy  context, a defendant  is accountable for  "all          reasonably   foreseeable  acts   and  omissions   of   others  in          furtherance of the jointly undertaken criminal activity."  United                                                                     ______          States  v.  Ovalle-Marquez,  36 F.3d  212,  223  (1st Cir.  1994)          ______      ______________          (quoting U.S.S.G.   1B1.3(a)(1)(B)).  See also Sepulveda, 15 F.3d                                                ___ ____ _________          at 1197;  United States v. O'Campo, 973 F.2d 1015, 1026 (1st Cir.                    _____________    _______          1992)  ("[T]he   base  offense  level  of   a  co-conspirator  at          sentencing  should   reflect  only  the  quantity   of  drugs  he          reasonably  foresees  it  is  the  object  of  the conspiracy  to          distribute after he  joins the conspiracy.").  We review quantity          determinations  for clear error.   See United States  v. St. Cyr,                                             ___ _____________     _______          977 F.2d 698, 701 (1st Cir. 1992).                Jimenez admits agreeing to  store two kilograms of cocaine,          but denies having any knowledge whatsoever of the secondary three                                         -7-          kilogram  transaction.    He  advances  three  related  arguments          against  the court's  decision  holding him  accountable for  the          whole  five kilograms  negotiated.   First,  he  claims that  the          Mojabi  affidavit  was  unreliable   and  should  not  have  been          considered by  the court.   Second, he  argues that, at  the very          least,  the  court should  have  staged  an evidentiary  hearing.          Finally,  he contends  that, without  the affidavit,  the court's          determination was clearly erroneous.            The Mojabi Affidavit          ____________________               The Mojabi  affidavit was the only piece  of direct evidence          linking  Jimenez to the five-kilogram  deal.2  In  order to place          the  affidavit  in  context,  we  first  provide  in  detail  the          circumstantial evidence  before the court that,  according to the          government, demonstrated Jimenez's awareness of the deal:               1.  Jimenez was  introduced to Fazio as the  person who               worked for, and transported cocaine for, Moreno.               2.   Moreno told the undercover  agent that he intended               to  use  Jimenez in  connection with  the five-kilogram                                        ____________________               2  Mojabi's affidavit, in pertinent part, provided:                    On the evening  of December 30,  1993, Christopher               Fazio took  me to Moreno's home.   "Fernando" [Jimenez]               was  also there.   Moreno,  Fazio, and  "Fernando" were               discussing the sale of five kilograms of cocaine to the               undercover  agent; they  were  talking  about how  many               kilograms to sell at  one time.  Moreno stated  that he               could  get as  much  as they  wanted  in New  York  and               "Fernando" stated that he would deliver the cocaine and               take  the money.   "Fernando"  stated that he  had done               this  before, that he was  not afraid, and  that he did               not need a  gun.   "Fernando" also stated  that he  had               previously lived  in New York  and that the  people who               owned the cocaine  trusted him  and had used  him as  a               courier in the past. . . .                                         -8-               sale, and  Jimenez stored the first  installment of two               kilograms in his home.               3.   Moreno told the agent that Jimenez had modified an               automobile to  transport up  to ten kilograms;  such an               automobile was parked in Jimenez's driveway on February               2, 1995.               4.   Moreno  told the  agent  that his  "friend"  would               deliver  the   five  kilograms   from  New   York;  the               automobileinJimenez's drivewayhadaNew Yorkregistration.               5.  The kilogram recovered in November was wrapped in a               bag from a store from Queens, New York;  the automobile               in Jimenez's driveway was registered to a man who lived               in Queens; and the  two kilograms recovered in February               were wrapped  in bags  containing the  logo of  the New               York Times -- suggesting that the cocaine  had a common               origin.               6.   Pen  register information  revealed  that  between               January 6, 1994  and February  2, 1994,  59 calls  were               placed from Jimenez's residence to Moreno's.   Nineteen               of these calls occurred  during January 29 and February               2, the days leading up to the deal.               7.  Additional quantities  of cocaine were found inside               Jimenez's home -- suggesting that larger  quantities of               cocaine had been stored there.               8.   Jimenez  and/or  Moreno had  ample opportunity  to               discard or remove the three kilograms of cocaine.               The government contends that Mojabi's affidavit was just one          of many factors considered  by the court, and  that, even in  its          absence,  there was  sufficient evidence  to support  the court's          finding.     While   we   make  no   determination  whether   the          circumstantial evidence considered alone could have supported the          court's finding  -- i.e.,  whether it  would survive  clear error                              ____          review --  we do not consider  the evidence so  substantial as to          make consideration of the affidavit, if erroneous, harmless.                 Three  factors inform  our conclusion.   First,  the court's          question  to the government during sentencing -- "Don't I have to                                         -9-          rely  on  Mr.  Mojabi's  affidavit  in  order  to  come  to  that          conclusion [that Jimenez is  responsible for the five kilograms]"          --  indicates  that  Mojabi's  affidavit  was  the  key piece  of          evidence.  Second, the probation department, considering the same          circumstantial evidence, refused to deem Jimenez responsible  for          more  than the  recovered cocaine.   Third, the  evidence, though          clearly confirming Jimenez's involvement in the conspiracy, is as          consistent with  Jimenez's participation in only  the first stage          of the  transaction as  his awareness  of the  whole transaction.          Thus, because  the affidavit  appears  to have  been the  crucial          piece  of  evidence  in  the district  court's  finding  of  drug          quantity, we  must assess whether  it was properly  considered by          the court.               At sentencing,  the "court may consider relevant information          without regard to its  admissibility under the rules of  evidence          applicable at trial, provided that the information has sufficient          indicia  of  reliability  to  support   its  probable  accuracy."          U.S.S.G.    6A1.3(a); United  States v.  Tardiff, 969  F.2d 1283,                                ______________     _______          1287  (1st  Cir.  1992).    The  court  has  wide  discretion  in          determining whether sentencing  information is reliable.   United                                                                     ______          States v. Shrader, 56 F.3d 288, 294 (1st Cir. 1995); Tardiff, 969          ______    _______                                    _______          F.2d at 1287.                 In   challenging   the   affidavit's  reliability,   Jimenez          complains  of 1)  the  lack of  corroboration;  2) Mojabi's  self          interest  to implicate  Jimenez;  and 3)  the improbability  that          Mojabi could  relate a discussion involving  Jimenez, given that,                                         -10-          purportedly,  Mojabi did  not speak Spanish  and Jimenez  did not          speak English.  We will address each of these in turn.                   Corroboration.  The affidavit, prepared on February 6, 1995,               _____________          contained  information that  was not  contained in  the  PSR, the          government's objections to the PSR, witness testimony at Moreno's          trial,  or any  contemporaneous document,  despite the  fact that          Mojabi  had been  cooperating with  the government  since shortly          after his  arrest in February, 1994.   Nor is the  information in          the affidavit corroborated by  any of the circumstantial evidence          delineated above.  Indeed, the only substantiation the government          can  muster  is that,  on the  day the  meeting described  in the          affidavit took place, the agent observed Moreno, Fazio and Mojabi          arriving together  at the  restaurant,  supporting an  inference,          perhaps, that  Moreno,  Fazio and  Mojabi met  together prior  to          their arrival.  Jimenez, however, was not seen with the others.               Self-Interest.  At sentencing,  Jimenez contended that given               _____________          the plea negotiations between the government and Mojabi, and even          independent  of any  rewards or  inducements relating  to a  plea          agreement, Mojabi may have  believed that it was in  his interest          to  help the  government convict  Jimenez of  a higher  amount of          cocaine.   In response, the  government stated that  there was no          written,  signed agreement  with Mojabi,  but that  any agreement          reached  would  be  breached   by  the  proffering  of  dishonest          information.   In addition,  the government asserted  that Mojabi          was  seeking a     5K1.1 departure,  which  applies only  if  the          defendant  provides   truthful  assistance.     In  other  words,                                         -11-          according to the government, Mojabi had an obligation, and  every          incentive, to tell the truth.                 Alternatively, the government argued that by placing himself          at  the scene of the  negotiations, Mojabi was subjecting himself          to  potentially greater  criminal  liability --  demonstrative of          credibility as  a "statement against interest."   Countering this          assertion, Jimenez responded that, under U.S.S.G.   1B1.8(a), any          self-incriminating information could not be used against Mojabi.                Language Barrier.   Finally,  Jimenez contended  that Mojabi               ________________          and Jimenez  do not  share  a common  language, Jimenez  speaking          Spanish  and having  only  minimal understanding  of English  and          Mojabi speaking only English.   As such, Jimenez argued  that the          affidavit  was "ambiguous on its  face."  The  government did not          respond  at   sentencing  to  this  point,   which  identifies  a          discrepancy not easily ignored.  Mojabi did not refer merely to a          simple  remark.    The  affidavit  purports  to  cover  Jimenez's          comments on the following  subjects:  the amount of  kilograms to          sell,  his plan to deliver  the cocaine and  receive payment, his          prior experience in delivery, his lack  of fear, his lack of need          of a gun, his prior  residence in New York, the trust  others had          in him and their prior employment of him.               Separately, these types of  complaints are unlikely to carry          the  day.  As we  have previously indicated,  courts may consider          even uncorroborated affidavits.   See Shrader, 56 F.3d at  294-95                                            ___ _______          (refusing  to  adopt   a  per  se   rule  of  unreliability   for                                    ___  __          uncorroborated   affidavits   of  cooperating   co-conspirators).                                         -12-          Moreover, a  co-defendant's cooperation with the  government does          not  make  his  statements  inherently  suspect.    Finally,  the          resolution  of  factual discrepancies  is  especially  within the          court's domain.               We are nonetheless convinced that in this  case the district          court  erred   in  relying  on   the  Mojabi  affidavit.     Most          significantly, Jimenez's  claim, uncontested by the government at          sentencing, that he  and Mojabi shared no common  language raised          an important doubt about the reliability of the affidavit.  Faced          with  this challenge  to  Mojabi's credibility,  and with  little          other probative evidence of Jimenez's involvement with the latter          transaction, the  court should not  have chosen simply  to credit          the affidavit without looking into the matter further.                 We  are also influenced, though  to a lesser  extent, by two          other considerations:  1) there was little basis here on which to          premise  a credibility  determination  -- the  affiant had  never          appeared  before  the court  or grand  jury  nor did  anyone ever          attest  to  his  veracity;  and 2)  there  was  no  corroboration          whatsoever of the content of Mojabi's statement.3                                        ____________________               3   The  presence  of these  factors,  whether alone  or  in          conjunction,  has often been significant in  other cases where we          have rejected challenges to the consideration of hearsay evidence          at sentencing.  See, e.g., United States v. Shrader, 56 F.3d 288,                          ___  ____  _____________    _______          294-95 (1st  Cir. 1995) (witness  vouched for the  credibility of          co-conspirators); United States v.  Williams, 10 F.3d 910, 914-15                            _____________     ________          (1st  Cir. 1993)  (hearsay testimony given  in formal  grand jury          proceeding);  United States v. Montoya,  967 F.2d 1,  3 (1st Cir.                        _____________    _______          1992)  (witness  providing  hearsay   testimony  cross-examined);          United  States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir. 1990)          ______________    ______________          (testimony relied upon given  at trial and before the  grand jury          and corroborated by many witnesses).                                         -13-               Finally, in  light of  these circumstances, we  are somewhat          concerned by the court's failure to articulate any reason why the          affidavit was  reliable.   After hearing counsel  debate Mojabi's          credibility, the court announced:               I've  considered  the  arguments  of  counsel  and  the               submissions  that were  made to  the Court  before oral               argument.   And  as a  result thereof, the  Court finds               that  the defendant  . .  . was  aware of  negotiations               between the other codefendants and the undercover agent               to sell at least five kilograms of cocaine . . . .               Despite the  clear dispute  over reliability, the  court did          not  mention the affidavit, or any other evidence, at all.  While          we  assume that  the  "arguments" and  "submissions" referred  to          included, inter  alia, the Mojabi affidavit,  indicating that the                    _____  ____          court  found  that  the  affidavit  was  reliable,4  the  court's          conclusory pronouncement diminishes our confidence  that it fully          considered this important issue.               Most likely,  doubts about  the Mojabi affidavit  could have          been  resolved  by holding  an  evidentiary  hearing, as  Jimenez          requested.5   Such  hearings may  be burdensome,  but  the stakes          here were high:   the affidavit provided the crucial  evidence of          the amount of drugs that  could be attributed to Jimenez, and  as          much as four years in prison were riding on the issue.  While the                                        ____________________               4  The government does not contest that the court considered          the affidavit.               5   On  January 24, 1995,  Jimenez requested  an evidentiary          hearing.  Though Jimenez  did not formally renew this  request at          his sentencing  hearing, both parties  address the merits  of the          court's  denial  of  his  request.   This  is  appropriate  since          Jimenez's  challenge  to  the  reliability of  the  affidavit  is          inexorably  intertwined with  his  claim concerning  the  court's          failure to hold an evidentiary hearing.                                         -14-          district court has considerable discretion in deciding whether it          has  sufficient  evidence  upon  which   to  make  a  finding  at          sentencing, here  the district court's  decision to  rely on  the          affidavit without an evidentiary hearing was error.               The government contends that the court adequately dealt with          the  reliability issue by taking  a full proffer  from Jimenez of          facts in  support of his position.  Such an opportunity may often          be sufficient  to allay  reliability concerns.   See Shrader,  56                                                           ___ _______          F.3d at  295.   But  in this  case, Jimenez's  proffer raised  an          important doubt  about the  reliability of Mojabi's  affidavit --          the language  discrepancy -- that  the government did  not refute          and that the court did not  resolve; the affidavit was by far the          most  important evidence on the  issue of drug  quantity, and the          stakes for defendant were extremely high.               We  therefore vacate  Jimenez's sentence  and remand  to the          district court for resentencing in a  manner consistent with this          opinion.                    2.   The Safety Valve Exception                    __________________________               In  1994, Congress  enacted 18 U.S.C.    3553(f),  which, in          certain  cases,  limits  the  application  of  mandatory  minimum          sentences.    Pursuant  to   this  provision,  when  a  convicted          defendant  meets  five  delineated  requirements,6  the  district                                        ____________________               6  The provision and its guideline counterpart demand that               (1) the defendant  does not have  more than 1  criminal               history  point,  as  determined  under  the  sentencing               guidelines;                                         -15-          court "shall" impose a sentence in accordance with the guidelines          without  regard to any statutory  minimum sentence.   18 U.S.C.            3553(f);  U.S.S.G.   5C1.2.  The parties agree that Jimenez meets          the  first  four  requirements,  but  dispute  whether  Jimenez's          disclosure to  a  probation officer,  but not  the United  States          Attorney, constitutes  providing information to  the "Government"          as understood under   5C1.2(5).  We review this question of legal          interpretation  under the guidelines  de novo.   United States v.                                                __ ____    _____________          Gary, 74 F.3d 304, 315 (1st Cir. 1996).          ____               Neither the United States Code nor the Sentencing Guidelines          contains  a specific  definition of  "government."   Jimenez thus          advances a  generic conception derived  from a dictionary:   "the                                        ____________________               (2)  the defendant  did  not use  violence or  credible               threats  of  violence or  possess  a  firearm or  other               dangerous  weapon (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 21 U.S.C.   848; 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, 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 requirement.          18 U.S.C.   3553(f); U.S.S.G.   5C1.2.                                         -16-          executive  branch  of  the  United  States  Federal  Government."          Jimenez asserts that this characterization includes the probation          department.  For additional support, Jimenez contends, correctly,          that  aspects  of  the  sentencing  procedures  contemplate  some          disclosure to the probation officer.  See U.S.S.G.   6A1.1.                                                ___               In resolving  this issue, we  are guided by  the use  of the          word   "government"  in   other  relevant   provisions,   and  by          legislative history.   Section 5C1.2 provides that "prior  to its          determination,  the   court  shall   afford  the   government  an          opportunity  to make a recommendation" and cites Fed. R. Crim. P.          32(a)(1).7     Section  5C1.2   comment.  (n.8.).     Under  this          procedural   rule,   "government"   implicitly   identifies   the          prosecutorial authority.  See United States v. Rodriguez, 60 F.3d                                    ___ _____________    _________          193, 196  &  n.3 (5th  Cir. 1995)  (relying on,  inter alia,  the                                                           _____ ____          doctrine  of  in pari  materia in  holding  that statements  to a                        __ ____  _______          probation officer do not satisfy   5C1.2).8               We also  think  that     5C1.2  is  properly  understood  in          conjunction with     5K1.1, which  authorizes downward  departure          upon  the government's  motion  that the  defendant has  provided                                        ____________________               7  The  November 1994  Guidelines Manual refers  to Fed.  R.          Crim.  P. 32(a)(1).  Pursuant to a 1994 amendment, Rules 32(c)(1)          and  (3) now address the  sentencing hearing and contain material          previously located in Rule 32(a)(1).  Reflecting this change, the          November 1995 Guidelines Manual cites Rules 32(c)(1) and (3).               8    Jimenez  argues  that  if     5C1.2  only  contemplates          communication with the  prosecution, then the language  of note 8          is surplusage.   The  language merely illustrates,  however, that          the  court  is  not  dependent  on  the  recommendation   of  the          prosecution,  as it is with a   5K1.1 departure, which requires a          motion from the government.                                         -17-          substantial assistance to  authorities.  The  second clause of             5C1.2(5)  -- securing the benefit  of the "safety  valve" even if          the fully disclosing defendant  "has no useful other information"          or  the  "Government  is  already aware"  --  seems  specifically          designed to  reward forthcoming  defendants who cannot  satisfy            5K1.1.   It seems evident  that section 5K1.1's  reference to the          "government" and  to "substantial assistance in the investigation          or prosecution  of another  person" contemplates  the defendant's          provision of information useful in criminal prosecutions.               The house  report accompanying the 1994  bill reinforces the          notion that the provision requires disclosure of information of a          type  that would aid prosecutors' investigative  work.  It states          that, "by the time  of sentencing, the defendant must  have fully                                                                      _____          assisted  the Government  by providing  all  relevant information          ________          regarding  the offense."  H.R. Rep. No. 460, 103d Cong., 2d Sess.          (1994) (emphasis added).   We think  this contemplates more  than          the  summary of the crime typically  provided by a defendant to a          probation officer.   Our conclusion is further  buttressed by the          timing component  of    5C1.2(5)  -- requiring  provision of  all          information to the  Government "not  later than the  time of  the          sentencing    hearing"    --   which    necessarily   anticipates          communication  that  could  occur   after  the  creation  of  the          presentence report, indicating that something other than ordinary          disclosure to a probation officer is intended.               While full  disclosure to  the probation officer  may assist          the officer  in preparing the defendant's  presentence report, we                                         -18-          do  not believe that    5C1.2 was  meant to  extend so far.   The          probation officer  does not create  a presentence report  with an          eye to  future prosecutions or  investigations.  Indeed,  in that          context,   the  disclosure  of  one's   role  is  the  domain  of          "acceptance  of  responsibility."    Section  5C1.2,  like 5K1.1,          requires  more  affirmative   involvement  in  the  prosecutorial          function.  Cf.  United States v.  Wrenn, 66 F.3d  1, 3 (1st  Cir.                     ___  _____________     _____          1995)  (requiring an affirmative  act of cooperation).   See also                                                                   ___ ____          United  States  v. Ivester,  75 F.3d  182,  185 (4th  Cir. 1996);          ______________     _______          United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995)          _____________    _____________          (stating that  the defendant  must disclose "everything  he knows          about his own actions and those of his co-conspirators.").               In  sum, we conclude that  "government" in   5C1.2(5) refers          to  the  prosecutorial authority.    Accordingly,  we affirm  the          district  court's  holding  that  Jimenez  did  not  satisfy  the          requirements of the "safety valve" provision.9             B.  Sentencing Issues:  Moreno              __________________________               1.  Quantity of Drugs                   _________________               At  the   time  of  Moreno's   sentencing,  the   sentencing          guidelines provided:                                        ____________________               9   We can conceive of circumstances where the objectives of          the provision would arguably be met even though the defendant did          not communicate  directly with the government.   For example, the          defendant  might advise  a  probation officer  of  his intent  to          reveal all relevant details as required by the provision and then          disclose  this information,  which in  turn is  passed on  to the          government.     We   need   not  decide   whether  such   unusual          circumstances would satisfy   5C1.2(5) because this is not such a          case.                                         -19-               In  an offense  involving negotiation  to traffic  in a               controlled substance,  the weight under  negotiation in               an uncompleted distribution shall  be used to calculate               the applicable amount.   However, where the court finds               that the  defendant did not  intend to produce  and was               not  reasonably  capable  of  producing  the negotiated               amount, the  court  shall exclude  from  the  guideline               calculation the  amount it finds the  defendant did not               intend  to produce  and was  not reasonably  capable of               producing.          U.S.S.G.   2D1.1 comment. (n.12).10               The  court found that Moreno "intended to  produce . . . and          was reasonably capable  of producing for sale such five kilograms          of cocaine."   It added, "part  of the evidence supporting  . . .          capability .  . . is the two kilograms that  were seized . . . on          February  2,  1994."   As  a  result,  the  court attributed  six          kilograms of cocaine to Moreno -- the five negotiated and the one          delivered in November -- a quantity carrying a base offense level          of 32.         Moreno  concedes  his   intent  to  produce   five          kilograms  of cocaine,  but contends  that there  is insufficient          evidence that  he was capable  of producing  the three  kilograms          that would  have  consummated  the deal.    We  review  factbound          matters in sentencing for clear error, mindful  that such factual          findings  need only  be  supported  by  a  preponderance  of  the          evidence.  United States v. Martinez-Martinez, 69 F.3d 1215, 1224                     _____________    _________________          (1st Cir. 1995).                                         ____________________               10   The  Sentencing Commission  amended note  12, effective          November, 1995, by, inter  alia, replacing the "and" in  the last                              _____  ____          sentence with "or."   See 1995 Guidelines Manual, App.  C, Amend.                                ___          518.  Nonetheless, we  consider Moreno's claim in the  context of          the  guidelines in  effect  in  April,  1995,  the  time  of  his          sentencing.  See U.S.S.G.   1B1.11(a).                       ___                                         -20-               Despite Moreno's  efforts to distance himself  from the two-          kilogram  seizure,  it  is   a  reasonable  conclusion  that  the          recovered  cocaine  constituted  the  first stage  of  the  five-          kilogram deal.   In turn,  it is entirely  plausible to  conclude          that Moreno, having the  capability to produce the first  part of          the deal, had the capability to consummate the deal, particularly          when the two stages were to take place in close  succession.  See                                                                        ___          United  States v.  Legarda,  17 F.3d  496,  501 (1st  Cir.  1994)          ______________     _______          ("entirely  plausible  . .  .  that  defendant, having  delivered          eleven kilograms  of cocaine one week, was  capable of delivering          ten kilograms the following week").  At the very least, we do not          discern clear error.                The government  also argues, in the  alternative, that under          our recent precedent, Moreno's concession of intent is sufficient          alone to render him  liable for the whole negotiated  amount.  We          agree.  In United States v. Pion, 25 F.3d 18, 25 (1st Cir. 1994),                     _____________    ____          we  concluded that the  conjunctive phrasing of  note 12 requires          the sentencing court to include  the weight negotiated unless the          defendant establishes both lack of intent and incapability.  In a          subsequent case, we stated "if the court finds by a preponderance          of the  evidence in regard  to an  aborted narcotics  transaction          that  the  defendant had  either the  intent  or the  capacity to          deliver the full amount of the drugs under negotiation, then that          amount must be included in the drug quantity calculation," United                                                                     ______          States  v. Muniz, 49 F.3d 36, 39  (1st Cir. 1994).  Very clearly,          ______     _____                                         -21-          then,  Moreno's  concession  of  intent  also  disposes  of  this          issue.11               2.   Obstruction of Justice                    ______________________               Enhancement  for  obstruction of  justice  can  be based  on          conduct  "threatening,  intimidating,  or   otherwise  unlawfully          influencing  a  co-defendant,  witness,  or  juror,  directly  or          indirectly, or attempting to  do so."  U.S.S.G.    3C1.1 comment.          (n.3(a)).   The court found that Moreno "attempted to influence a          witness in this case by actions of his own and through actions of          his  common  law wife"  and increased  his  offense level  by two          levels.   We review  the court's  determination for  clear error.          See United States v. Gonzales, 12 F.3d 298, 299 (1st Cir. 1993).          ___ _____________    ________               The  PSR   reported  that  Moreno,  from   prison,  and  his          girlfriend contacted Fazio several times  in an effort to  induce          him  to testify  that  Moreno  had  a  subordinate  role  in  the          conspiracy.   Moreno, in  his objections  to the  PSR and  at his          sentencing  hearing, did not deny  that he or  his girlfriend had          contacted Fazio  but contended that he was trying to "urge him to          tell the truth."  In contrast, Fazio's testimony during  Moreno's                                        ____________________               11   Moreno  cites the  following language  from an  earlier          case:  "Our case law has followed the language of this Commentary          Note  in a rather faithful  fashion, requiring a  showing of both          intent and ability to  deliver in order to allow the inclusion of          negotiated amounts to  be delivered  at a future  time."   United                                                                     ______          States v. Legarda, 17 F.3d 496, 500 (1st Cir. 1994).   While this          ______    _______          language supports Moreno's position, we are bound by the on point          holdings  of Pion and Muniz.   See United  States v. Graciani, 61                       ____     _____    ___ ______________    ________          F.3d 70, 75 (1st Cir. 1995).                                         -22-          trial   indicates   that   Moreno   attempted   to   script   his          testimony.12               Credibility determinations at sentencing are the province of          the  court, and  are scrutinized  only for  clear error.   United                                                                     ______          States v.  Webster, 54 F.3d 1,  5 (1st Cir. 1995).   Here, Moreno          ______     _______          concedes that the  communication took  place.  He  admits to  the          basic content of the communication:  asking Fazio to testify that          his [Moreno's]  role in  the conspiracy consisted  of acting  the          part  of a drug dealer.   Moreno's only  offered justification is          that he  was encouraging Fazio to  tell the truth.   In our view,          after  presiding  over  Moreno's  trial,  and   having  extensive          opportunity to observe Fazio and Moreno, the court's rejection of          Moreno's version of events easily survives clear error review.               Moreno  argues, further,  that  the court  made no  specific          findings of the  "words used,  the speaker's meaning,  or what  a          listener's reasonable  interpretation would be."   At sentencing,          the judge  is required to  "state in open  court the  reasons for                                        ____________________               12  The  following exchange  took place during  a voir  dire          hearing relating to another matter:               Q.  [by government]  What  was the  phone call  conversation          about?               A. [by Fazio] What Moreno was telling me.               Q. What was he telling you?               A. Well, he was  telling me to not testify against  him, not          to   drown him and to try to save him.               Q. How did he want you to try to save him.               A. By not testifying against him.               Q. Did he tell you anything he wanted you to say?               A. Yes, he did.               Q. What was that?               A. To say that  I was the big man  and he was just  a friend               trying to help me out trying to find somebody.                                         -23-          [the]  imposition of  the  particular  sentence."   18  U.S.C.             3553(c).    Here,  the  court  stated  its  finding  that  Moreno          attempted to influence a witness, a clear example  of obstruction          of  justice.  See U.S.S.G.   3C1.1 comment. (n.3(a)).  The narrow                        ___          scope of the issue in dispute,  the specific findings in the PSR,          which  were adopted  by the  district judge  as evidenced  by the          judgment  form,   and  the  extensive  discussion  at  sentencing          sufficiently enable effective appellate  review.  This was enough          to satisfy   3553(c).  See  United States v. Catano, 65 F.3d 219,                                 ___  _____________    ______          230 (1st Cir.  1995); United States v. Schultz, 970 F.2d 960, 963                                _____________    _______          & n.7 (1st Cir. 1992); United States  v. McDowell, 918 F.2d 1004,                                 _____________     ________          1012 (1st Cir. 1990).13               3.   Evidentiary Hearing                    ___________________               Moreno's final challenge is to the court's refusal to compel          Jimenez  and Uroujo  to  appear as  witnesses  at his  sentencing          hearing.   We review the court's denial of an evidentiary hearing          for  abuse of discretion.  United  States v. Garcia, 954 F.2d 12,                                     ______________    ______          19 (1st Cir. 1992).                 At trial, the judge observed the government's case-in-chief,          including  recordings  and videotapes  of  Moreno discussing  the          five-kilogram  deal with Fazio and the  undercover agent.  Moreno          had  an opportunity  to cross-examine  Fazio and  the  agent, and          succeeded in  introducing  Fazio's possible  bias.   And, at  his                                        ____________________               13   Moreno argues that the court  should have made specific          findings  in accordance with United States  v. Dunnigan, 507 U.S.                                       _____________     ________          87  (1993).   Since the  obstruction of  justice finding  was not          premised on perjury, Dunnigan does not govern.                               ________                                         -24-          sentencing hearing,  Moreno testified  extensively in  support of          his version of events.   In sum, Moreno had a more  than adequate          opportunity to  present information  on any factor  reasonably in          dispute.   See  U.S.S.G.    6A1.3(a).    Further  testimony  from                     ___          Jimenez and Uroujo would have served no purpose.  Accordingly, we          see  no error in the court's  refusal to issue subpoenas to these          witnesses.               The sentence of Jimenez is vacated, and the case is remanded               ____________________________________________________________          for  further   proceedings  consistent  with  this   opinion  and          _________________________________________________________________          resentencing.  Moreno's sentence is affirmed.          _____________________________________________                                         -25-
