                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________            FILED
                                                  U.S. COURT OF APPEALS
                               No. 10-12642         ELEVENTH CIRCUIT
                           Non-Argument Calendar        APRIL 21, 2011
                         ________________________        JOHN LEY
                                                           CLERK
                  D.C. Docket No. 8:09-cr-00480-JDW-AEP-2

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

MATTHEW DAVID JAMES,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (April 21, 2011)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      After pleading guilty, Matthew David James appeals his concurrent 60-

month sentences for one count of conspiracy to manufacture and possess with
intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846,

841(a)(1) and (b)(1)(B)(vii) (Count 1), and one count of manufacturing and

possessing with intent to distribute an unspecified quantity of marijuana, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 2). After review, we

affirm.

                           I. BACKGROUND FACTS

A.    Request for Safety-Valve Relief

      James pled guilty to both counts charged in the indictment. According to

the final presentence investigation report (“PSI”), James’s total offense level was

17 and his criminal history category was I, which resulted in an advisory

guidelines range of 24 to 30 months’ imprisonment. However, because Count 1

carried a mandatory minimum five-year sentence pursuant to 21 U.S.C.

§ 841(b)(1)(B)(vii), the PSI noted that James’s advisory guidelines range became

60 months. See U.S.S.G. § 5G1.1(c)(2). The PSI did not address James’s

eligibility for safety-valve relief from the five-year mandatory minimum sentence,

pursuant to U.S.S.G. § 5C1.2.




                                         2
       James filed a sentencing memorandum asking for safety-valve relief, and, if

granted, a downward variance from the advisory guidelines range.1 James’s

memorandum stated that the government believed he had not been truthful about

the “participation of an unindicted individual” in James’s marijuana growing

operation, but that James “ha[d] no knowledge regarding the participation of this

individual in the offense” and that he had provided the government with truthful

information.

       In the PSI’s addendum, the probation officer responded that James was

ineligible for a safety-valve reduction because, according to the government, he

had not provided the government with “all information and evidence concerning

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

common scheme or plan.”

B.     Adoption of Co-Defendant Brown’s Motion to Declare
       § 841(b)(1)(B)(vii) Unconstitutional

       Prior to sentencing, James’s co-defendant Michael Brown filed a “Motion to

Declare Mandatory Minimum Sentencing Provision of 21 U.S.C.

§ 841(b)(1)(B)(vii) Unconstitutional and to Impose a Sentence Below the


       1
        According to James’s sentencing memorandum, the initial PSI recommended that James
receive safety-valve relief, but the PSI was revised after the government contended that James
was ineligible because he had not been truthful in providing the government with information
about his offenses.

                                              3
Otherwise Applicable Minimum Sentence.” James moved to adopt Brown’s

motion, which argued that: (1) the government was selectively prosecuting

marijuana offenders because the U.S. Attorney General had announced a policy of

not prosecuting marijuana distributors who were not violating their respective

state’s laws; (2) individuals who were similarly situated to him but who were

located in states that had deregulated marijuana were not being prosecuted under

the Controlled Substances Act and, thus, were not subject to the mandatory

minimum in § 841(b)(1)(B)(vii); (3) the government’s selective prosecution of

marijuana offenders violated his equal protection and due process rights and the

Tenth Amendment; (4) because the government was deferring to state law in

determining whom to prosecute, the district court should defer to state law in

sentencing those the government decided to prosecute; and (5) under Florida law,

Brown would not be subject to a five-year mandatory minimum sentence.

      Brown attached a copy of an October 19, 2009 memorandum from Deputy

Attorney General David Ogden stating, inter alia, that investigating and

prosecuting individuals whose actions were in clear and unambiguous compliance

with state laws allowing for the medical use of marijuana would not be the most

efficient use of federal government resources, but that, even in those states,




                                          4
prosecution of commercial enterprises that unlawfully market and sell marijuana

for profit continued to be an enforcement priority.

      Without ruling on James’s motion to adopt Brown’s motion, the district

court denied Brown’s motion, concluding that: (1) Brown had waived his selective

prosecution and Commerce Clause arguments by pleading guilty; (2) the

government’s prosecutorial policy did not violate the Equal Protection Clause as

applied to Brown because there was a rational basis for distinguishing between

those states that decriminalized medical use of marijuana and those states that had

not, and Brown “is not similarly situated with individuals who possess marijuana

for medical use in states which have decriminalized that use”; and (3)

§ 841(b)(1)(B)(vii) is not facially unconstitutional because there is a rational basis

for imposing a more severe punishment for higher drug quantities.

C.    Sentencing

      At the sentencing hearing, the district court granted James’s motion to adopt

Brown’s motion to declare § 841(b)(1)(B)(vii) unconstitutional, but then denied

the motion because James had waived any selective prosecution argument by

pleading guilty.

      With respect to James’s safety-valve request, the primary issue was whether

James had been truthful about the involvement of Carlo Colucci in the marijuana

                                          5
growing operation. Colucci owned three of the homes in which James and co-

defendant Brown grew marijuana, and James and Brown had worked for Colucci’s

nightclub for years.

      James testified that, to his knowledge, Colucci did not receive any

marijuana or money from the marijuana growing operation and that he had told

Timothy Lutz, the Drug Enforcement Agency’s case agent in the investigation,

about everyone involved in the operation. During his debriefing, James told

Agent Lutz, inter alia, that: (1) co-defendant Brown, and not James, paid Colucci

rent; (2) James was primarily responsible for growing the marijuana in the houses,

Brown was primarily responsible for selling the marijuana, and the two men

shared the proceeds; (3) Brown did not tell James to whom he sold the marijuana;

(4) both James and Brown sold marijuana to Zoe Placiotis, usually between two

and five pounds every two to six weeks; (5) James was aware that Brown sold

marijuana to Peter James (Defendant James’s brother), Angelo Huritos, Jay Singh

and Billy Summers (Zoe Placiotis’s boyfriend); (6) James believed that the

majority of the marijuana they grew went to Huritos; and (7) to James’s

knowledge, Colucci did not receive either marijuana or any of the proceeds from

the marijuana sales.




                                        6
      Agent Lutz testified, inter alia, that various members of the marijuana

growing operation provided information that contradicted what James said during

his debriefing. From interviews with others, Agent Lutz learned that Zoe

Placiotis, Billy Summers, Peter James and Angelo Huritos started out helping

Defendant James and Brown with their growing operations and buying small

amounts of marijuana from them, but, over time, James and Brown helped them

begin their own marijuana growing operations. Zoe Placiotis and Billy Summers

operated one grow house and Peter James and Angelo Huritos operated two grow

houses. If one group needed marijuana and was out, another group would supply

them, but “it wasn’t where anybody was buying the whole shipment.” Based on

Agent Lutz’s calculations as to the average amount of marijuana the grow houses

produced, Agent Lutz did not think James and Brown were selling most of their

marijuana to Paciotis and Summers or Peter James and Huritos.

      Agent Lutz identified the following information from other participants that

indicated James had not accounted for a large amount of the marijuana sales and

that James and Brown had one main buyer, probably Colucci, whom James was

refusing to identify: (1) Placiotis and Summers told Lutz they had overheard

James and Brown referring to “their guy,” who was “one guy who was taking the

majority” of their marijuana; (2) Placiotis never saw James or Brown hand

                                         7
marijuana to Colucci, but she believed Brown and James were referring to

Colucci; (3) Huritos also overheard James and Brown discussing their “one main

guy” and when Huritos asked Peter James about it, Peter said they were referring

to Colucci; (4) Placiotis did not think Defendant James ever actually worked for

Colucci’s nightclub; (5) Huritos admitted accepting money from Peter James and

then Huritos’s business issued Peter paychecks so it looked like Peter had

legitimate employment; and (6) Huritos believed Defendant James had a similar

arrangement with Colucci.

      The district court advised Defendant James that it suspected he knew more

than he had told Agent Lutz and called a short recess. When the hearing resumed,

James insisted that he had truthfully informed Agent Lutz that the majority of the

marijuana he and Brown grew went to Huritos. The district court noted that

Defendant James had the burden of proof and that the court did not “just accept

the government’s representation, particularly when it’s a situation where the agent

is basing his opinion and determination on his experience and understanding from

other cooperating defendants, and you simply say, well, you don’t know.”

However, the district court found Defendant James’s claims that he did not know

to whom Brown was selling their marijuana “not persuasive” and concluded that

James had not met his burden of proof with regard to safety-valve relief. The

                                         8
district court noted James’s calculated answers and demeanor during his testimony

and the possible motivations James had for not being forthcoming about the main

buyer for the marijuana. The district court pointed out that there was “a lot of

circumstancial evidence” supporting a finding that James had not given complete

information as to whom they were selling their marijuana. The district court

concluded that James did not qualify for safety-valve relief and sentenced James to

concurrent 60-month sentences. James filed this appeal.

                                    II. DISCUSSION

A.     Motion to Declare § 841(b)(1)(B)(vii) Unconstitutional

       On appeal, James, like his co-defendant Brown, argues that the district court

erred in denying the motion to declare § 841(b)(1)(B)(vii) unconstitutional.2

Specifically, James contends his equal protection rights were violated because the

government is not prosecuting “similarly situated defendants” in other states for

the same conduct (possessing 100 marijuana plants with intent to distribute) that

subjected Brown to § 841(b)(1)(B)’s five-year mandatory minimum sentence.3



       2
       We review de novo the constitutionality of a statute. United States v. Phaknikone, 605
F.3d 1099, 1107 (11th Cir.), cert. denied, 131 S. Ct. 643 (2010).
       3
         On appeal, James does not argue that § 841(b)(1)(B)(vii)’s sentencing scheme imposing
a five-year mandatory minimum sentence when the § 841(a) offense involves 100 or more
marijuana plants: (1) on its face violates the Equal Protection Clause; (2) violates the Due
Process Clause; or (3) violates the Tenth Amendment.

                                               9
      As in Brown’s appeal, we find no merit to James’s “as applied” equal

protection claim. Any alleged selective prosecution under § 841(a), the

substantive offense, is not a basis for attacking on equal protection grounds the

imposition of the five-year mandatory minimum in § 841(b)(1)(B)(vii), the penalty

provision. Put another way, James is not “similarly situated” to people who have

never been prosecuted for violating § 841(a). At a minimum, James needed to

compare himself to other defendants convicted under § 841(a) for possessing at

least 100 marijuana plants but who were not subjected to § 841(b)(1)(B)(vii).

      James would be hard pressed to find a sufficient comparator for such an

equal protection claim. Once a defendant pleads guilty to possessing more than

100 marijuana plants, absent a substantial assistance motion or safety-valve relief,

the district court does not have the authority, much less the discretion, to sentence

below the five-year statutory mandatory minimum. See United States v. Castaing-

Sosa, 530 F.3d 1358, 1361-62 (11th Cir. 2008). For this reason, James’s argument

that the district court should have “deferred” to Florida’s less severe marijuana

sentencing laws lacks merit.

      Despite James’s claims to the contrary, the gravamen of his equal protection

argument is not selective sentencing, but selective prosecution. As the district

court correctly concluded, James waived this argument when he pled guilty. See

                                          10
United States v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008) (explaining that a

defendant generally waives all non-jurisdictional challenges to the conviction by

entering a guilty plea).

B.     Safety-Valve Relief

      “Safety-valve relief allows for sentencing without regard to any statutory

minimum, with respect to certain offenses, when specific requirements are met.”

United States v. Milkintas, 470 F.3d 1339, 1344 (11th Cir. 2006); see also 18

U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The defendant must prove eligibility for

safety-valve relief by a preponderance of the evidence. See Milkintas, 470 F.3d at

1345; United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir. 2006).

      Of the five safety-valve criteria, the only one at issue on appeal requires the

defendant “not later than the time of the sentencing hearing” to provide truthful

and complete information “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.” U.S.S.G.

§ 5C1.2(a)(5). The defendant must come forward and truthfully supply all

information he has relating to his offense, and the government is not required to

                                         11
solicit information from the defendant. Milkintas, 470 F.3d at 1345-46. A drug

defendant’s obligation to provide full disclosure includes any “information

relating to the involvement of others and to the chain of the narcotics distribution.”

United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997).4

       We find no clear error in the district court’s safety-valve ruling. James

testified that he had provided complete and truthful information when he said

Huritos bought the majority of the marijuana and that to his knowledge Carlo

Colucci was not a buyer. Agent Lutz, on the other hand, testified that others

involved in the marijuana growing operation contradicted James in interviews.

Specifically, Agent Lutz’s investigation revealed, inter alia, that: (1) Placiotis and

Huritos overheard James and Brown discussing a main buyer and both understood

the main buyer to be Colucci; (2) based on the amount of marijuana James’s grow

houses produced, Huritos, who had his own grow houses and only purchased from

James and Brown when he needed additional marijuana, was not likely to be the

“main buyer”; (3) James and Brown collected paychecks from Colucci’s

nightclub; (4) Placiotis and Huritos believed James did not actually work at

       4
          “When reviewing a district court’s safety-valve decision, we review for clear error a
district court’s factual determinations . . . [and] de novo the court’s legal interpretation of the
statutes and sentencing guidelines.” United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir.
2006) (quotation marks omitted). “The question of whether the information [that the defendant]
supplied to the government . . . was truthful and complete . . . is a factual finding for the district
court.” United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000).

                                                  12
Colucci’s nightclub; and (5) three of James’s grow houses were rented from

Colucci. The district court was entitled to credit Agent Lutz over James, and

Agent Lutz’s testimony suggested that James was withholding the identity of his

main marijuana buyer during his debriefings. See United States v. Rodriguez, 398

F.3d 1291, 1296 (11th Cir. 2005) (explaining that when the sentencing court

resolves conflicting testimony between two witnesses, “the resolution will almost

never be clear error”).5

       James argues that when a defendant testifies that he provided full and

complete information, the government is required to present competent evidence

to rebut his testimony. This argument ignores the fact that the district court heard

James’s testimony and discredited it and that the government produced Agent

Lutz’s testimony as to his investigation, which indicated that James knew of, but

would not reveal, a main marijuana buyer, who was most likely Colucci. Under


       5
          To the extent James argues that the district court improperly credited Agent Lutz’s
testimony based on his status as a law enforcement officer, we disagree. See United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (noting that the district court may not rely on
a “credit law enforcement in case of conflict” rule in making credibility determinations). The
district court commented extensively on why it did not believe James’s testimony.
         We also reject James’s claim that the district court impermissibly deferred to the
government’s assessment of the truthfulness and completeness of James’s information. See
United States v. Espinosa, 172 F.3d 795, 796-97 (11th Cir. 1999) (explaining that the district
court may not defer to the government in determining whether the defendant provided truthful
and complete information). The district court stated explicitly that it was not relying on the
government’s assessment, heard testimony from both Agent Lutz and James and engaged in a
lengthy discussion regarding why it found James had not provided complete information.

                                               13
the circumstances, the district court’s finding that James was withholding

information relating to his offense was not clearly erroneous.

      AFFIRMED.




                                         14
