           Case: 13-12464   Date Filed: 05/15/2014   Page: 1 of 9


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12464
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:12-cr-20452-KMM-9



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DAVID SILVA,

                                                         Defendant-Appellant.

                       ________________________

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

                              (May 15, 2014)

Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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        David Silva appeals his 120-month sentence for conspiring to possess with

intent to distribute marijuana, contending for the first time on appeal that the

district court: (1) improperly deferred to the government’s assertions about his

truthfulness and candor when denying him safety-valve relief; and (2) violated

Alleyne v. United States, 133 S.Ct. 2151 (2013), by making findings reserved for a

jury.

                                          I.

        Silva was indicted on one count of conspiring to possess with intent to

distribute marijuana, in violation of 21 U.S.C. § 846. He pleaded guilty under a

written plea agreement, in which he acknowledged his role in a drug trafficking

ring and stipulated that the conspiracy involved 1,000 or more marijuana plants.

Silva’s plea agreement noted that he was subject to a statutory minimum of ten

years imprisonment.

        Silva’s presentence investigation report (PSR) calculated a base offense

level of 26 under U.S.S.G. § 2D1.1(a)(5) and (c)(7), with a 2-level increase under

§ 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or

distributing a controlled substance. After a 3-level reduction under § 3E1.1 for

acceptance of responsibility, the PSR assigned Silva a total offense level of 25.

Together with his criminal history category of I, that gave him an initial guidelines

range of 57 to 71 months imprisonment. But because Silva was subject to a


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mandatory minimum sentence of 10 years under 21 U.S.C. § 841(b)(1)(A)(vii), the

PSR set his final guidelines range at 120 months, in accordance with U.S.S.G.

§ 5G1.1.

       Silva objected to the PSR on the ground that it failed to grant him safety-

valve relief under § 5C1.2(a), which would have made the 120-month minimum

sentence no longer mandatory and would have reduced his total offense level to

23.1 See U.S.S.G. § 5C1.2(a). The government filed a response asserting that

Silva was not eligible for safety-valve relief because he had not given a safety-

valve debriefing. It indicated that he could still give a debriefing but warned that

he would be expected to talk about a corrupt police officer who had aided the drug

conspiracy, an officer the government believed that Silva had introduced to his co-

conspirators. Though the government did not give the officer’s name in its filed

response, the record reveals that it was referring to Silva’s brother, Roderick Silva,

who worked for the Miami-Dade Police Department at the time. Silva requested

that he be given the opportunity for a safety-valve debriefing, and the parties met

for that purpose shortly before the sentence hearing.

       At that hearing a few days later, Silva renewed his request for safety-valve

relief, noting that he had finally spoken with the government. The government


       1
          Silva made other objections to the PSR, which are not at issue in this appeal. With a
total offense level of 23 and criminal history category of I, Silva’s guidelines range would have
been 46 to 57 months.
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again objected, stating that when the parties met Silva had not been candid and

truthful, which is required for safety-valve relief. The government noted that Silva

talked only grudgingly during his debriefing. And to the extent he did talk, it was

to assert that he knew nothing about his brother Roderick’s involvement in the

conspiracy, despite evidence from multiple sources, including Roderick himself,

showing that the officer had taken bribes from and had given help to Silva’s co-

conspirators. Knowing that Silva was a full-fledged partner in the drug trafficking

network, the government argued that it was not believable that he had no idea his

brother was involved.

      At the conclusion of the sentence hearing, the district court determined that

Silva did not qualify for safety-valve relief because he had been neither candid nor

truthful when talking to the government. The court noted that Silva’s position in

the conspiracy and the independent evidence of his brother’s involvement both

suggested that Silva lied and withheld information about Roderick’s role. The

court indicated that circumstantial factors also cast doubt on Silva’s candor and

honesty, such as his delay in seeking a debriefing, his refusal to speak openly with

the government when the debriefing finally took place, and his failure to present

any evidence supporting the truth of his statements other than the unsubstantiated

arguments of his attorney. The district court sentenced Silva to the mandatory

minimum of 120-months imprisonment.


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                                                 II.

       Silva first challenges the district court’s factual finding that he did not

satisfy the criteria for safety-valve relief under 18 U.S.C. § 3553(f) and U.S.S.G.

§ 5C1.2(a). A district court’s assessment of the candor and completeness of a

defendant’s safety-valve disclosure is a factual determination normally reviewed

for clear error. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004).

Because Silva has raised this issue for the first time on appeal, however, we review

it only for plain error.2 United States v. De La Garza, 516 F.3d 1266, 1269 (11th

Cir. 2008). As a result, Silva bears the burden of showing that there is “(1) an

error, (2) that is plain, (3) that affects [his] substantial rights, and (4) that seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

       The “safety valve” at issue here is a statutory creature. See 18 U.S.C.

§ 3553(f). It allows defendants who meet certain requirements to avoid the

statutory minimum sentences that would otherwise apply to their crimes. United

States v. Brehm, 442 F.3d 1291, 1299 (11th Cir. 2006). Defendants seeking

safety-valve relief must satisfy the five criteria found in U.S.S.G. § 5C1.2(a), only

the fifth of which is at issue here:



       2
         Silva did object to the denial of safety-valve relief at the time of his sentencing, but he
did so on grounds different from those he now raises on appeal.
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      (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.

U.S.S.G. § 5C1.2(a)(5). This “tell all” provision requires defendants to truthfully

tell everything they know about the crimes and conspiracies in which they were

involved. United States v. Yate, 176 F.3d 1309, 1310 (11th Cir. 1999). As with all

of the other safety-valve criteria, defendants bear the burden of proving that they

have truthfully told all there is to tell. See United States v. Milkintas, 470 F.3d

1339, 1345 (11th Cir. 2006).

      Silva asserts that the district court improperly deferred to the government’s

conclusion that he was lying, a proposition for which his sole support is our

decision in United States v. Espinosa, 172 F.3d 795 (11th Cir. 1999). In Espinosa,

we concluded that the district court erred by blindly accepting the government’s

assertion about the quantity of drugs involved in the crime without first assessing

the credibility of the defendant’s contrary position. See Espinosa, 172 F.3d at 797.

Given what occurred in this case, however, Espinosa is far off point. The record

here shows that the district court did not simply adopt the government’s

assessment of Silva’s candor. Instead, the court fulfilled its duty as a factfinder,

considered both parties’ positions, and concluded based on the arguments and the

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record before it that Silva had not been candid enough to earn safety-valve relief.

The district court did not improperly defer to the government’s assessment of

Silva’s honesty, and we conclude that it did not err, much less plainly err, in

finding that Silva was not eligible for safety-valve relief. 3

                                             III.

       Silva next challenges the denial of safety-valve relief on the ground that the

district court’s factfindings violated his Sixth Amendment rights under Alleyne,

133 S.Ct. at 2151. Because he raises this issue for the first time on appeal, we

review it only for plain error. De La Garza, 516 F.3d at 1269.

       Under Alleyne, facts that result in a higher mandatory minimum sentence

are treated as additional elements of an offense that must be submitted to a jury and

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2162–63. Silva contends

that because the district court’s factfindings about his truthfulness during his

safety-valve debriefing resulted in a guidelines range increase from 46-to-57



       3
         Silva also argues that the district court violated his Sixth Amendment rights under
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), by relying on testimony from
codefendants whom he was not allowed to cross-examine. The problem with this argument is
that Crawford applies only to hearsay evidence presented during the trial of a case, not during
non-capital sentencing. See U.S. Const. amend. VI; Crawford, 541 U.S. at 42, 124 S.Ct. at 1359;
United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005); cf. Proffitt v. Wainwright,
685 F.2d 1227, 1254–55 (11th Cir. 1982) (recognizing a defendant’s right to cross-examine
witnesses during capital sentencing). And because Crawford does not apply to Silva’s
sentencing, the direct court did not err, much less plainly err, by relying on testimony from
Silva’s codefendants. Silva makes additional arguments about the district court’s safety-valve
factfindings, but none of them merit discussion.


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months to 120 months, those findings should have been made by a jury, not a

judge. 4

       That argument is meritless. While Alleyne requires a jury to find facts that

increase a defendant’s mandatory minimum sentence, Silva’s mandatory minimum

sentence never increased here. See id. at 2163. Before the district court found that

Silva was not truthful in his safety-valve debriefing, his mandatory minimum

sentence was 120 months. After the district found that he was not truthful in his

debriefing, his mandatory minimum sentence was 120 months. All that changed as

a result of the court’s finding was that Silva was not eligible for a sentence below

that mandatory minimum. As a result, the district court’s safety-valve findings did

not increase his mandatory minimum sentence as prohibited by Alleyne.

       The First Circuit has reached the same conclusion under similar

circumstances. In United States v. Harakaly, a defendant argued that the district

court erred in finding him ineligible for safety-valve relief on the ground that he

occupied a managerial role in the conspiracy because, under Alleyne, such a

finding was reserved for the jury. 734 F.3d 88, 97 (1st Cir. 2013). The Harakaly

panel rejected that argument, reasoning that where a jury verdict or guilty plea

results in a mandatory minimum sentence, “[j]udicial fact-finding that precludes
       4
          As we have already mentioned, had the district court granted him safety-valve relief,
Silva’s total offense level would have been 23, which, together with his criminal history category
of I, would have resulted in a guidelines range of 46 to 57 months. Because the district court
found that Silva was not eligible for safety-valve relief, the court sentenced him to the statutory
minimum of 120-months imprisonment.
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safety-valve relief is permissible because it does not increase that baseline

minimum sentence.” Id. at 99. To find otherwise, the panel noted, would

“stretch[] Alleyne well beyond its actual holding.” Id. at 98. We find that

reasoning persuasive.

      Because the district court committed no error, much less plain error, in

making the factual and legal determinations underlying its denial of Silva’s request

for safety-valve relief, we affirm the sentence in this case.

      AFFIRMED.




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