     Case: 09-40598     Document: 00511182636          Page: 1    Date Filed: 07/22/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            July 22, 2010

                                       No. 09-40598                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

LLOYD WAYNE POWELL, JR.,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-cr-00042


Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Defendant Lloyd Wayne Powell, Jr. (“Powell”) pleaded guilty on February
26, 2009, to one count of possessing with intent to distribute more than 100
kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). The Pre-
Sentence Report (“PSR”) calculated a total base offense level of 23 and a single
criminal history point, producing a Guideline range of 46-57 months. The
statutory minimum for the crime, however, was five years, and so the Guideline
range became 60 months. 21 U.S.C. § 841(b)(1)(B). Defense counsel made

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-40598      Document: 00511182636         Page: 2     Date Filed: 07/22/2010

                                      No. 09-40598

objections to the PSR that were accepted, and the amended PSR indicated that
the defendant was eligible for a safety valve reduction under 18 U.S.C. § 3553(f),
which allows sentences below the statutory minimum for certain low-level drug
offenders.1 In order to qualify for the safety valve, a defendant must meet certain
criteria:
       (1) the defendant does not have more than 1 criminal history point,
       as determined under the sentencing guidelines;
       (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 section 408 of the Controlled Substances
       Act; 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



       1


       The safety valve provision was enacted in response to concerns that mandatory
       minimums are not compatible with the guideline regime. The provision
       addressed the following irony: Mandatory minimums had, and have, little real
       impact on the sentences received by serious repeat offenders, where the
       guideline calculation arrives at a base offense level higher than the mandatory
       minimum, and where mitigating factors may therefore be considered. Prior to
       passage of section 3553(f), however, for the least culpable offenders, mandatory
       minimums operated to block sentences from reflecting the very mitigating
       factors that could ease sentences of the more culpable. Ironically, courts were
       obliged to impose upon the least culpable defendants sentences similar to those
       imposed on more culpable counterparts. As a House Report noted, the safety
       valve provision was designed to “permit . . . greater integration between
       sentencing guideline mitigating factors and mandatory minimums . . . ”
United States v. Miranda-Santiago, 96 F.3d 517, 527 n.22 (1st Cir. 1996) (citing H.R.Rep. No.
460, 103d Cong., 2d Sess. 4 (1994).

                                             2
   Case: 09-40598    Document: 00511182636        Page: 3    Date Filed: 07/22/2010

                                    No. 09-40598

      the information shall not preclude a determination by the court that
      the defendant has complied with this requirement.
18 U.S.C. § 3553(f). The Government does not contest that the first four criteria
were satisfied in this case; only the fifth is at issue.
      The defendant’s sentencing was originally scheduled for May 14, 2009.
Two days before the original sentencing, defense counsel moved for and was
granted a continuance. The day before the rescheduled sentencing, on May 27,
2009, the defendant debriefed with a Government agent in order to satisfy the
fifth criteria of § 3553(f). The record does not make clear exactly why the
defendant did not debrief until the day before the sentencing, although it
appears to have had something to do with a scheduling conflict between defense
counsel and the agent. The agent who debriefed the defendant was not able to
appear at the sentencing hearing itself, which took place on May 28, 2009. At
sentencing the AUSA present, who was not the lawyer staffed on the defendant’s
case, indicated that it was her understanding that defense counsel and the
AUSA in charge of defendant’s case had agreed to ask for a continuance so that
the Government could verify the information the defendant provided in his
debrief. The district court, however, objected to the request for the continuance,
expressing concern that the debrief had happened only the previous day, and
that the delay was disrespectful to the district court’s need for efficiency in
scheduling. When the district court stated it was inclined to deny the
continuance, defense counsel requested that the defendant be granted the safety
valve. Defense counsel argued that the statute had no verification requirement,
and that the Government only need believe that the information provided was
truthful. The district court disagreed, stating:
      Well, it is a requirement of this Judge that it be verified, to some
      degree. . . . How can it be truthful if it’s not verified? . . . [P]rior to
      the time of sentencing does not mean that he gets to come the day
      before the court and deny the Government an opportunity to review


                                          3
   Case: 09-40598    Document: 00511182636       Page: 4   Date Filed: 07/22/2010

                                   No. 09-40598

      the information that he gives, because part of that is it’s got to be
      truthful information, in the [language of the statute.] . . . And the
      Government’s entitled to check it out.
The district court explained that it was going to deny the continuance, and that
because “[defense counsel] waited until the last minute to debrief . . . it’s going
to result in a penalty to [the defendant].” The district court sentenced the
defendant to the statutory minimum of 60 months, followed by five years of
supervised release. The defendant timely appealed.
      On appeal the defendant argues that the district court erred in denying
him the safety valve reduction. We review a district court’s interpretation of
sentencing statutes and the sentencing guidelines de novo. United States v.
Carter, 595 F.3d 575, 577 (5th Cir. 2010). A district court’s finding that a
defendant does not qualify for the operation of the statutory safety valve
contained in 18 U.S.C. § 3553(f) is a factual finding reviewed for clear error.
United States v. Edwards, 65 F.3d 430, 432 (5th Cir. 1995). In this case there is
both a question of statutory interpretation (what the safety valve statute
requires for operation) and a question of fact (whether the defendant met the
statute’s requirements). The district court erred on both fronts.
      When seeking a safety valve reduction, the defendant bears the burden of
proving his eligibility. United States v. Flanagan, 80 F.3d 143, 145-46 (5th Cir.
1996). If the Government opposes the safety valve, however, on the grounds that
a defendant has not satisfied the fifth criterion – i.e., has not truthfully provided
all the information he has concerning the offense or course of conduct that gave
rise to the crime of conviction – it must offer more proof than “mere[]
speculat[ion].” United States v. Miller, 179 F.3d 961, 969 (5th Cir. 1999). “[A]
mere challenge to factual findings at sentencing does not automatically exclude
application of [the safety valve].” United States v. Edwards, 65 F.3d 430, 433
(5th Cir. 1995). Thus, “where a defendant in her submissions credibly



                                         4
   Case: 09-40598    Document: 00511182636      Page: 5    Date Filed: 07/22/2010

                                  No. 09-40598

demonstrates that she has provided the government with all the information she
reasonably was expected to possess, in order to defeat her [claim to the safety
valve], the government must at least come forward with some sound reason to
suggest otherwise.” United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir.
1996); see also Miller, 179 F.3d at 969 (quoting Miranda-Santiago approvingly
and at length). In other words, “[t]he government cannot assure success simply
by saying, ‘We don’t believe the defendant,’ and doing nothing more.” Miranda-
Santiago, 96 F.3d at 529.
      In this case the AUSA offered no specific doubts as to the veracity of the
defendant’s debriefing, and in fact did not even suggest that information was
suspected of being untruthful, saying only: “This Defendant would be safety
valve eligible, might be. He did debrief, but just yesterday. The agent has not
had an opportunity to corroborate the statements.” Our cases make clear that
this was insufficient to disqualify the defendant from receiving the safety valve
reduction on the basis of failing to satisfy the statute’s fifth requirement. As for
the district court’s implicit holding that the statute requires a defendant to give
the Government an unspecified period of time in which to corroborate his
information before sentencing, we are in accord with our sister circuits in having
held that the statute requires only that the defendant debrief prior to the
commencement of the sentencing hearing. See United States v. Brenes, 250 F.3d
290, 293 (5th Cir. 2001) (holding that the statute requires debriefing by the “the
time of the commencement of the sentencing hearing” and that a defendant is
not entitled to the safety valve if he waits to provide truthful information until
his sentencing hearing has already begun). See also United States v. Mejia-
Pimental, 477 F.3d 1100, 1106 (9th Cir. 2007) (“a defendant satisfies his . . .
obligation by providing the Government with truthful, complete information by
the time of the sentencing hearing”); United States v. Madrigal, 327 F.3d 738,
745-46 (8th Cir. 2003) (holding that the statute requires disclosure only by the

                                         5
   Case: 09-40598    Document: 00511182636      Page: 6   Date Filed: 07/22/2010

                                  No. 09-40598

time of the sentencing hearing and that the continuance of a sentencing hearing
did not change this deadline); United States v. Brownlee, 204 F.3d 1302, 1305
(11th Cir. 2000) (“We follow those circuits who have held that lies and omissions
do not, as a matter of law, disqualify a defendant from safety-valve relief so long
as the defendant makes a complete and truthful proffer not later than the
commencement of the sentencing hearing.”); United States v. Schreiber, 191 F.3d
103, 106 (2d Cir. 1999) (“The plain words of the statute provide only one deadline
for compliance . . . . Indeed the text provides no basis for distinguishing among
defendants who make full disclosure immediately upon contact with the
government, defendants who disclose piecemeal as the proceedings unfold, and
defendants who wait for the statutory deadline by disclosing ‘not later than’
sentencing.”); United States v. Marin, 144 F.3d 1085, 1091 (7th Cir. 1998)
(interpreting “the timing requirement to require complete and truthful
disclosure by the time of the commencement of the sentencing hearing” but
holding that a defendant may not earn the safety valve by providing truthful
information only halfway through his sentencing).
      We are not unaware of the policy concerns expressed by the district court
– but these policy concerns are not reflected in the language of the statute. As
the Ninth Circuit has explained, “[p]olicy concerns about the need for defendants
to cooperate in the most helpful and efficient manner with the Government do
not present a compelling justification for stretching the plain meaning of the
statute [to require disclosure earlier than by the time of the sentencing
hearing].” Mejia-Pimental, 447 F.3d at 1106. Some of our sister circuits allow the
district court to take account of the circumstances of the proffer (including its
timing) in evaluating the truthfulness of the debriefing for purposes of applying
the safety valve. See Schreiber, 191 F.3d at 108 (“the facts surrounding a
debriefing, or the lack of a debriefing, become part of the total mix of evidence
for the district court to consider in evaluating the completeness and truthfulness

                                        6
   Case: 09-40598   Document: 00511182636      Page: 7   Date Filed: 07/22/2010

                                 No. 09-40598

of the defendant’s proffer”); Brownlee, 204 F.3d at 1305 (quoting and following
Schreiber). Others require the district court to grant the safety valve but allow
it to take account of any circumstances surrounding the proffer as part of the
ultimate sentence through exercising its discretion under the § 3553(a)
sentencing factors. See Mejia-Pimental, 447 F.3d at 1106 (“[T]o the extent that
this conduct is not fully captured by the advisory Guidelines, the factors listed
in 18 U.S.C. § 3553(a) allow district courts to account for reluctant cooperation
by tailoring individual sentences accordingly”).
      Our case law makes clear that (1) the defendant need not debrief and
provide truthful information at any particular time except prior to the
commencement of the sentencing hearing, see Brenes, 250 F.3d at 293, and (2)
if the Government wants to oppose the operation of the safety valve for an
otherwise-qualified defendant on the basis of an allegedly untruthful proffer, it
must do more than simply state it does not believe the defendant, much less
state, as in this case, that it simply has no position on the information’s
truthfulness, see Miller, 179 F.3d at 969. However, the safety valve provisions
of 18 U.S.C. § 3553(f) do not require a court to accept a defendant’s proffer as
truthful when that proffer is made at so late a date that the Government has not
had a reasonable period of time to verify the information provided by the
defendant. Under such circumstances, the district court has the discretion to
grant a continuance to allow the Government to assess the truthfulness of the
information. The defendant in this case debriefed prior to the commencement
of the sentencing hearing, and the Government requested a continuance to
attempt to verify the information that had been provided. The district court
denied that request. Under these circumstances, the district court erred in
denying the safety valve. We therefore REVERSE and REMAND for further
proceedings consistent with this opinion.



                                        7
