United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 15-3858
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee

                       v.

        Adrian Oswaldo Rodriguez

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 16-1481
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee

                       v.

               Jose Cruz Ojeda

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 16-2768
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee
                                          v.

                         Javier Guadalupe Ramirez-Raya

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeals from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                          Submitted: December 12, 2016
                             Filed: March 30, 2017
                                 [Unpublished]
                                 ____________

Before LOKEN, MURPHY, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

       Jose Cruz Ojeda, Adrian Oswaldo Rodriguez, and Javier Guadalupe Ramirez-
Raya each pleaded guilty to one count of conspiracy to distribute 500 grams or more
of methamphetamine pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. They
were charged in an indictment involving 18 defendants who were alleged to be
participants in a drug trafficking network in Minnesota, California, and Ohio. The
district court1 sentenced Ojeda to 240 months’ imprisonment, Rodriguez to 120
months’ imprisonment, and Ramirez-Raya to 144 months’ imprisonment. The
defendants appeal their sentences. After reviewing the arguments raised by each
defendant, we affirm.


      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.

                                         -2-
                                 I. Jose Cruz Ojeda

       On October 15, 2014, Ojeda pleaded guilty to conspiring to distribute at least
500 grams of methamphetamine. As the factual basis for the plea, Ojeda agreed that
the government could prove that in 2013 he entered into an agreement with others to
traffic drugs in Minnesota, and he did in fact traffic in at least 80 pounds of
methamphetamine intended for Minnesota, including large quantities that were seized
from codefendants in several states. The presentence investigation report (PSR)
described Ojeda as the leader of the drug trafficking organization. According to the
PSR, Ojeda paid a coconspirator to recruit members to join the trafficking
organization, planned coconspirators’ trips to transport loads of cocaine and
methamphetamine, instructed coconspirators to rent a storage unit to store drugs,
directed coconspirators to deposit drug proceeds in cash into bank accounts, obtained
vehicles from an auto dealership to transport drugs from California to Minnesota, and
communicated with coconspirators about collecting drug debts and transporting and
purchasing drugs.

       The PSR calculated Ojeda’s offense level at 41, including a four-level increase
under USSG § 3B1.1(a) for being an organizer or leader and a two-level increase
under USSG § 2D1.1(b)(5) for importing methamphetamine from Mexico to the
United States. At sentencing, the district court overruled Ojeda’s objection to the
four-level increase for being a leader or organizer, but sustained his objection to the
two-level increase for importing drugs from Mexico. With an offense level of 39 and
a criminal history category of II, the applicable advisory guideline range was 292 to
365 months. Ojeda sought a downward variance to 120 months, arguing that he
turned to drug trafficking to pay for his wife’s medical treatment. The district court
granted the variance in part and sentenced Ojeda to 240 months’ imprisonment.




                                         -3-
       On appeal, Ojeda raises procedural and substantive challenges to his sentence.
First, Ojeda argues that the district court failed to sufficiently articulate its analysis
of the sentencing factors outlined in 18 U.S.C. § 3553(a). Because Ojeda did not
object to the adequacy of the district court’s explanation during his sentencing
proceeding, we review for plain error. United States v. Merrell, 842 F.3d 577, 584
(8th Cir. 2016). “A district court is not required to recite the § 3553(a) factors
mechanically or to ‘make specific findings on the record’ about each factor.” Id.
(quoting United States v. Fry, 792 F.3d 884, 891 (8th Cir. 2015)). Instead, “it simply
must be clear from the record that the district court actually considered the § 3553(a)
factors in determining the sentence.” United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc) (quoting United States v. Walking Eagle, 553 F.3d 654, 659
(8th Cir. 2009))

        The district court heard extensive arguments from counsel and Ojeda regarding
the proper sentence to impose, and it reviewed the PSR and the submissions of
counsel. It granted a downward variance, but not to the extent sought by Ojeda in
part because Ojeda was “a leader of a drug trafficking organization that had contacts
all the way back down to Mexico and that just doesn’t happen overnight.” In its
Statement of Reasons issued the same day as the sentencing hearing, the district court
further explained its sentence: It stated that Ojeda’s violent childhood, acceptance of
responsibility, and lack of significant prior jail time supported a reduced sentence, but
the seriousness of the offense, need to deter criminal conduct, and protection of the
public led the court to conclude that only a small variance was appropriate. See
United States v. Krzyzaniak, 702 F.3d 1082, 1085 (8th Cir. 2013) (relying on “[t]he
court’s subsequent written Statement of Reasons” to find that there was no plain error
in its explanation of reasons for rejecting the defendant’s request for a downward
variance). We find no procedural error in the district court’s consideration of the
sentencing factors.




                                           -4-
        Next, Ojeda argues that the district court failed to consider several relevant
factors that should have received significant weight, specifically his limited criminal
history, his reason for engaging in drug trafficking, his role as an average participant
in the drug trafficking organization, and the appropriate sentence to protect the
public. “We review a challenge to the substantive reasonableness of a sentence for
an abuse of discretion.” United States v. Leonard, 785 F.3d 303, 306 (8th Cir. 2015)
(quoting United States v. Luleff, 574 F.3d 566, 569 (8th Cir. 2009)). “A sentencing
court abuses its discretion when it fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors.” Id. at 307 (quoting Luleff, 574 F.3d at 569). As
described above, contrary to Ojeda’s assertion, the district court did rely on many of
the factors identified by Ojeda in reducing his sentence below the guideline range.
As to Ojeda’s specific contention that he was only an average participant in the drug
trafficking organization, the district court rejected this argument. Ojeda does not
argue that the district court erred in applying a four-level increase to his offense level
pursuant to USSG § 3B1.1(a) for being an organizer or leader, and we can find no
error in the district court’s failure to rely on a contrary conclusion when deciding
what sentence to impose. See United States v. Irlmeier, 750 F.3d 759, 764 (8th Cir.
2014) (defining “‘organizer’ and ‘leader’ broadly” to include those who “direct or
enlist the aid of others” but who may “not be the only leader or organizer”). Given
that the district court explicitly discussed the factors Ojeda raised and sentenced him
“below the advisory guidelines range, it is nearly inconceivable that the court abused
its discretion in not varying downward still further.” United States v. Black, 670 F.3d
877, 882 (8th Cir. 2012) (quoting United States v. McKanry, 628 F.3d 1010, 1022
(8th Cir. 2011)). We find no such abuse of discretion here.2

      2
       To the extent Ojeda argues that he qualified for safety valve relief under 18
U.S.C. § 3553(f), he failed to raise this argument before the district court and thus we
review for plain error. See United States v. Alarcon-Garcia, 327 F.3d 719, 722 (8th
Cir. 2003). We conclude that the district court did not commit plain error in failing

                                           -5-
       Finally, Ojeda raises procedural and substantive challenges to an alleged
unwarranted sentencing disparity between his sentence and those of his codefendants.
He argues that the district court procedurally erred in failing to consider 18 U.S.C.
§ 3553(a)(6), which states that the court shall consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” Because Ojeda did not object at sentencing
to the adequacy of the district court’s consideration of § 3553(a)(6), we review for
plain error. See United States v. Williams, 624 F.3d 889, 897 (8th Cir. 2010). We
find no procedural error because the district court recited this factor in its Statement
of Reasons, heard substantial argument from counsel regarding the sentences given
to codefendants, and based its sentence in part on Ojeda setting up and leading the
drug trafficking organization run by his codefendants. In addition, Ojeda contends
that his sentence is substantively unreasonable because codefendants who were
charged with the same crime received sentences ranging from 60 to 120 months.
Ojeda ignores the quantity of drugs for which he was held responsible, and the fact
that his codefendants were charged as average participants in the conspiracy, whereas
he received an offense-level increase for being a leader. “[D]isparate sentences
among dissimilar defendants are not unwarranted.” Fry, 792 F.3d at 893 (emphasis
omitted). The district court did not abuse its discretion in sentencing Ojeda to a
longer term of imprisonment than codefendants who played smaller roles in the
conspiracy.




to apply the safety valve. Ojeda did not meet his burden to show that he satisfied
each safety valve requirement: He undisputedly had more than one criminal history
point, 18 U.S.C. § 3553(f)(1), did not claim that he satisfied the full disclosure
requirement, id. § 3553(f)(5), and failed to show he was not an organizer or leader of
the conspiracy, id. § 3553(f)(4). See United States v. Alvarado–Rivera, 412 F.3d 942,
947 (8th Cir. 2005) (en banc) (“Defendants have the burden to show affirmatively
that they have satisfied each requirement for the safety valve . . . .”).

                                          -6-
                          II. Adrian Oswaldo Rodriguez

       Like Ojeda, Rodriguez pleaded guilty to conspiring to distribute at least 500
grams of methamphetamine. At his April 6, 2015, plea hearing, Rodriguez admitted
that he came to an agreement with some of his codefendants to participate in the
distribution of narcotics by transporting and delivering the drugs and by permitting
drug proceeds to be deposited into his bank account. According to the PSR, at his
presentence interview, Rodriguez explained that a “known individual” offered him
money to deposit cash into his bank accounts and later to withdraw the money and
deliver it to specified locations. He also admitted that in January 2014 he assisted in
transporting and delivering 690 grams of heroin to Crystal, Minnesota. The PSR
calculated Rodriguez’s offense level at 27, and because he had no criminal history,
it placed him in criminal history category I for an advisory guideline range of 70 to
87 months. Because Rodriguez was subject to a mandatory minimum sentence of 120
months, that became his adjusted advisory guideline range.

       At his sentencing hearing, Rodriguez argued that he was eligible for a
reduction in his advisory guideline range because he met the requirements of the
safety valve. See 18 U.S.C. § 3553(f). Under that provision, the district court may
impose a sentence below the mandatory minimum if it finds at sentencing that, inter
alia, “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)(5).
The government argued that Rodriguez had not satisfied this safety valve
requirement. It stated that Rodriguez participated in a safety valve proffer with the
government on September 17, 2015, but he twice refused to provide the name of the
“known individual” who offered him money to conduct the bank account transfers.
According to the government, Rodriguez stated that he was not going to “answer any
questions about anyone except for his own direct involvement.” Rodriguez’s counsel
agreed that this was a “fair recitation of the facts,” and that Rodriguez feared that

                                         -7-
providing specific names would compromise the safety of his family. The district
court found that Rodriguez had not met his burden to prove he was eligible for safety
valve relief because he refused to answer the government’s questions about the
“known individual.” After hearing arguments from counsel and Rodriguez, the
district court sentenced Rodriguez to the mandatory minimum of 120 months.

       Rodriguez appeals the district court’s finding that he did not truthfully provide
the government with all information and evidence he had concerning the offense. See
18 U.S.C. § 3553(f)(5). Rodriguez bears the burden of proving “that he qualifies for
this relief, and we review for clear error the district court’s findings about the
completeness and truthfulness of a defendant’s provision of information.” United
States v. Honea, 660 F.3d 318, 328 (8th Cir. 2011) (quoting United States v.
Aguilera, 625 F.3d 482, 488 (8th Cir. 2010)). Rodriguez argues that he satisfied this
element based on the information he provided at his plea hearing, and in his
presentence interview, and by not disputing the facts in the PSR.3 Although such
information could potentially satisfy the defendant’s burden to provide “complete and
truthful information,” here, the government identified specific information that
Rodriguez refused to provide during a safety valve proffer—i.e., the name of the
person who originally connected Rodriguez to the drug trafficking organization.
United States v. Garcia, 675 F.3d 1091, 1095 (8th Cir. 2012) (finding no error in


      3
        For the first time on appeal, Rodriguez contends that the full disclosure
requirement of the safety valve is unconstitutional because it compels self
incrimination in violation of the Fifth Amendment. As this court has not addressed
the issue presented by Rodriguez, the district court cannot have plainly erred in not
sua sponte finding that the disclosures required by 18 U.S.C. § 3553(f)(5) violated
Rodriguez’s Fifth Amendment rights. See United States v. Ristine, 335 F.3d 692, 695
(8th Cir. 2003) (concluding district court did not commit plain error, despite contrary
precedent from another circuit, where “the current law concerning this issue is
unsettled”). We do note, however, that other circuits have concluded that the safety
valve does not implicate the right against self-incrimination. See United States v.
Warren, 338 F.3d 258, 264 (3d Cir. 2003) (collecting cases).

                                          -8-
denial of safety valve relief where “the government represented to the court that
Garcia did not give a complete and accurate accounting of his role in the crime and
gave examples of how Garcia was noncompliant”). Like in Garcia, Rodriguez’s
counsel “did not put forward any evidence to counter this assessment by the
government,” and in fact conceded that the government’s description of the proffer
was accurate and that Rodriguez was unwilling to provide names of specific
individuals. Id. As a result, Rodriguez failed to meet his burden to show that he
provided complete and truthful information. See United States v. Sanchez, 475 F.3d
978, 981 (8th Cir. 2007) (“Refusing to answer questions or respond to inquiries about
relevant conduct is inconsistent with providing a complete and truthful account of
that conduct.”); United States v. Romo, 81 F.3d 84, 85 (8th Cir. 1996) (to receive
safety valve relief, defendant is obligated to provide information about identities and
participation of others involved in chain of distribution). We therefore find no error
in the district court’s conclusion that Rodriguez did not qualify for safety valve
relief.4

                      III. Javier Guadalupe Ramirez-Raya

       Ramirez-Raya pleaded guilty to conspiring to distribute at least 500 grams of
methamphetamine. The PSR calculated an offense level of 35 and a criminal history
category of II based on two gross misdemeanor offenses Ramirez-Raya committed
as a juvenile. At the sentencing hearing, the district court granted Ramirez-Raya’s
motion for a downward departure, finding that his criminal history was overstated and
reducing his criminal history category to I. The adjusted guideline range was 168 to
210 months. Defense counsel argued for a variance to 120 months, the mandatory

      4
       Rodriguez also argues that his 120-month sentence is substantively
unreasonable. Where, as here, the government did not make a motion for substantial
assistance and defendant does not qualify for safety valve relief, the district court
lacked authority to reduce Rodriguez’s sentence below the mandatory minimum. See
United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003).

                                         -9-
minimum, based primarily on the abuse and violence Ramirez-Raya suffered as a
child. The district court sentenced Ramirez-Raya to 144 months.

       On appeal, Ramirez-Raya argues that the district court procedurally erred by
failing to give any reasons to support its chosen sentence. As explained by the
Supreme Court in Gall v. United States, 552 U.S. 38, 50 (2007), after settling on the
appropriate sentence, a district court “must adequately explain the chosen sentence
to allow for meaningful appellate review and to promote the perception of fair
sentencing.” Because Ramirez-Raya failed to object on this ground at sentencing, we
conduct a plain error review. See United States v. Chavarria-Ortiz, 828 F.3d 668,
670–71 (8th Cir. 2016). Even assuming that Ramirez-Raya demonstrated that the
district court’s explanation was inadequate, we cannot find plain error because he has
not attempted to show “that a more detailed explanation would have resulted in a
lighter sentence.” Id. at 671. Without evidence of prejudice, we conclude there was
no reversible error.

       In addition, Ramirez-Raya argues that his sentence is substantively
unreasonable because the district court did not consider several of the arguments he
made at sentencing, specifically his lack of guidance during childhood, the substantial
time he spent in foster care, his violent and abusive childhood, his limited criminal
history, and his financial reasons for becoming involved with the conspiracy. We
review the substantive reasonableness of a sentence “under a deferential
abuse-of-discretion standard.” Gall, 552 U.S. at 41. The district court sentenced
Ramirez-Raya to 144 months—a term 24 months lower than the low end of his
advisory guideline range. Where the district court imposed a below-Guidelines
sentence, it is “nearly inconceivable” that such a sentence is substantively
unreasonable. See United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009). We
conclude that the sentence imposed here was not unreasonably high.




                                         -10-
                      IV. Conclusion

The judgments are affirmed.
               ______________________________




                           -11-
