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<pre>     [NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT] <br>                                 <br>                 United States Court of Appeals <br>                     For the First Circuit <br>                      ____________________ <br> <br>No. 98-2216 <br>                                 <br>                   UNITED STATES OF AMERICA, <br>                                 <br>                           Appellee, <br>                                 <br>                               v. <br>                                 <br>                           JOHN DOE, <br>                                 <br>                     Defendant, Appellant. <br>                                 <br>                      ____________________ <br>                                 <br>                                 <br>          APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                                 <br>                FOR THE DISTRICT OF PUERTO RICO <br>                                 <br>        [Hon. Salvador E. Casellas, U.S. District Judge] <br>                                 <br>                      ____________________ <br>                                 <br>                             Before <br>                                 <br>          Torruella, Stahl, and Lynch, Circuit Judges. <br>                                 <br>                      ____________________ <br> <br>     Miriam Ramos Grateroles and Luz M. Rios Rosario on brief for <br>appellant. <br>     Jorge E. Vega-Pacheco, Nelson Prez-Sosa, and Guillermo Gil on <br>brief for appellee. <br>                                 <br>                      ____________________ <br>                                 <br>                          May 7, 1999 <br>                      ____________________ <br>

LYNCH, Circuit Judge.  After reaching a plea agreement <br>under Fed. R. Crim. P. 11(e)(1)(B), defendant John Doe pled guilty <br>to conspiracy to distribute cocaine.  He appeals from his sentence.  <br>We affirm. <br>Acting on wiretap information, Drug Enforcement <br>Administration agents pulled over a car driven by Doe.  The car <br>contained approximately 120 kilograms of cocaine.  Agents also <br>executed a warrant to search the home of co-defendant Nelson De <br>Jess-Morales, and found approximately 529 kilograms of cocaine as <br>well as evidence of cocaine traffic approaching 3,000 kilograms. <br>A grand jury indicted Doe with conspiracy to distribute <br>cocaine, see 21 U.S.C.  841(a)(1) (West 1981) & 846 (West Supp. <br>1999), and possession of cocaine with intent to distribute.  See <br>21 U.S.C.  841(a)(1); 18 U.S.C.  2 (West 1969).  The parties <br>reached a plea agreement, under which Doe pled guilty to the <br>conspiracy charge and the government sought dismissal of the <br>possession charge.  The agreement attributed 50-150 kilograms of <br>cocaine to Doe, leading to a base offense level of 36.  See U.S. <br>Sentencing Guidelines  2D1.1(c) (1998).  The agreement proposed a <br>three-level reduction in the offense level for acceptance of <br>responsibility, see U.S.S.G.  3E1.1, and an additional two-level <br>reduction should the court determine that Doe met the criteria of <br>the 'safety valve' provision set forth in U.S.S.G.  5C1.2.  If <br>both reductions applied, defendant's adjusted offense level would <br>be 31, and the government would recommend the minimum sentence of <br>120 months' imprisonment.  The agreement noted that, should Doe <br>fail to meet the safety valve criteria, his adjusted offense level <br>would be 33 and his minimum sentence would be 135 months.  Finally, <br>the agreement acknowledged that all sentencing conclusions remained <br>"within the sound discretion of the sentencing judge." <br>The sentencing hearing focused on  5C1.2, the safety <br>valve provision.  The government argued that  5C1.2 should not <br>apply because Doe did not meet its requirement of truthfulness: <br>     [N]ot later than the time of the sentencing hearing, the <br>     defendant has truthfully provided to the Government all <br>     information and evidence the defendant has concerning the <br>     offense or offenses that were part of the same course of <br>     conduct or of a common scheme or plan, but the fact that <br>     the defendant has no relevant or useful other information <br>     to provide or that the Government is already aware of the <br>     information shall not preclude a determination by the <br>     court that the defendant has complied with this <br>     requirement. <br>U.S.S.G.  5C1.2(5).  Doe replied that he had satisfied the <br>truthfulness requirement and merited a two-level reduction. <br>After holding a sentencing hearing, the district court <br>agreed with the government.  Noting that "even on the stand [Doe] <br>has been hesitant," the district court found that Doe had not been <br>fully truthful.  Doe moved for reconsideration, and the court <br>entertained further discussion before denying his motion.  The <br>court did apply the reduction for acceptance of responsibility, <br>reaching an adjusted offense level of 33, and sentenced Doe to the <br>minimum term of 135 months' imprisonment followed by five years of <br>supervised release. <br>The sole issue on appeal is whether the sentencing court <br>erred in denying a two-level reduction under  5C1.2.  We review de <br>novo any legal interpretation of this section, see United States v. <br>White, 119 F.3d 70, 73 n.6 (1st Cir. 1997), and review factual <br>determinations for clear error.  See United States v. Miranda- <br>Santiago, 96 F.3d 517, 527 (1st Cir. 1996).  Doe bore the burden of <br>proof: to benefit from the safety valve, he had to "persuade the <br>district court that he ha[d] truthfully provided the required <br>information and evidence to the government."  United States v. <br>Montanez, 82 F.3d 520, 523 (1st Cir. 1996) (internal quotation <br>marks omitted). <br>Doe makes two alternative arguments.  He first contends <br>that the district court erred in three ways: by improperly applying <br>the standard of U.S.S.G.  5K1.1 to his case, by failing to credit <br>his desire to cooperate, and by sanctioning him for failing to <br>provide evidence of a different drug conspiracy not "part of the <br>same course of conduct or . . . common scheme or plan."  Had the <br>district court not committed these errors, Doe argues, it would <br>have found that he met the requirements of  5C1.2.   <br>The record is clear that the district court did not apply <br> 5K1.1 in this case and that it used the appropriate standard <br>under  5C1.2.  At the sentencing hearing, which took place over <br>two days and resulted in 180 transcript pages, the government <br>introduced sufficient evidence for the district court to find that <br>Doe was not fully truthful as required by  5C1.2.  Contrary to <br>Doe's depiction of his own meager involvement, a co-defendant <br>identified Doe as responsible for packaging and mailing of the <br>cocaine to New York; another witness identified Doe as an active <br>participant in three meetings packaging the cocaine for shipment; <br>and the court, having heard Doe's testimony, found that he was not <br>forthcoming.  There was no error. <br>In the alternative, Doe argues that the district court <br>applied  5C1.2 harshly against him, but leniently against co- <br>defendant Nelson De Jess-Morales.  Doe believes that De Jess- <br>Morales received a  5C1.2 reduction only because he was higher in <br>the drug organization and therefore had more information to <br>disclose than Doe, who characterizes himself as a mere "mule."  <br>Whether or not De Jess-Morales knew (and disclosed) more <br>information than Doe, Doe's argument does nothing to rebut the <br>district court's conclusion that he was not fully truthful.  That <br>was ample reason for any disparity and there can be no claim that <br>the resulting sentence was disproportionate to the crime.  Cf. <br>United States v. Singleterry, 29 F.3d 733, 740-41 (1st Cir. 1994). <br>The sentencing order is affirmed.</pre>

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