                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-1263
SUNNY EMEZUO,
                                             Petitioner-Appellant,
                                 v.


UNITED STATES OF AMERICA,
                                             Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 00-C-7518—Harry D. Leinenweber, Judge.
                          ____________
 ARGUED SEPTEMBER 9, 2003—DECIDED FEBRUARY 6, 2004
                         ____________


 Before CUDAHY, and EASTERBROOK, and RIPPLE, Circuit
Judges.
  CUDAHY, Circuit Judge. Sunny Emezuo appeals the de-
nial of his motion pursuant to 28 U.S.C. § 2255, in which he
claims to have received ineffective assistance of counsel
with respect to the proffer requirement of 18 U.S.C.
§ 3553(f) and U.S.S.G. § 5C1.2. Because we conclude that
his proffer would have been insufficient even if it had been
submitted to the government, Emezuo cannot show he suf-
fered prejudice, and we therefore affirm.
2                                                No. 02-1263

                              I.
  The facts underlying Emezuo’s arrest and conviction are
set out in our opinion on his direct appeal, see United States
v. Hamzat, 217 F.3d 494, 501 (7th Cir. 2000), but a brief
recap may be useful. Emezuo, a Nigerian national, was one
of fifteen individuals involved in an international heroin
distribution ring operating between Thailand, Nigeria and
the United States from 1993 to 1996. He acted as a
Bangkok-based supplier, assisting another supplier (“Titi”)
in procuring and packaging heroin in luggage to
be smuggled into the United States, where the heroin
was distributed by “Bola.” Emezuo received wire transfers
from Bola on Titi’s behalf that he knew to be payments for
heroin, and he was paid in cash for his assistance. He was
also paid through partial ownership of some of the heroin
shipments, and he accepted in additional payment an ex-
pensive watch and automobile. He later began working
directly for Bola after she had a falling out with Titi.
Emezuo was arrested in Thailand on July 22, 1996, and was
subsequently voluntarily extradited to the United States,
where he was charged with one count of conspiracy to
possess with intent to distribute heroin, in violation of 21
U.S.C. § 846. Emezuo was unable to reach a plea agreement
with the government, but nonetheless, on the day of trial he
entered a “blind” plea of guilty to the conspiracy charge.
  It is at this point that events become relevant to this
appeal. During Emezuo’s plea colloquy, which took place on
February 17, 1998, he admitted to most of the above acts
though, presumably due to language difficulties, it appar-
ently took several rounds of questioning before he under-
stood what he was being asked to admit (and before the
court and the government understood what he was admit-
ting). He admitted to receiving wire transfers representing
payment for drugs and to getting a “commission” for doing
No. 02-1263                                                       3

so, (Pld’g Tr. at 63-64, 771); to owning portions of heroin
shipments (Pld’g Tr. at 67-68, 74, 78, 80); to helping put
heroin in secret compartments in suitcases for shipment
(Pld’g Tr. at 69, 74-75); and to receiving an expensive
watch, a Toyota automobile and money for his assistance
with the conspiracy (Pld’g Tr. at 75). He claimed that he
had initially been duped by Titi into receiving wire trans-
fers, thinking that they were payments for the clothing
she was shipping to Bola in the United States (Pld’g Tr.
at 63), but his claimed ignorance was disputed by the
government. Emezuo’s dealings with Titi and subsequently
Bola were not well-developed during the plea colloquy.
Thus, Emezuo’s trial counsel said that he would file a
defendant’s version that would be “full and complete.” (Pld’g
Tr. at 69.)
  The defendant’s version was prepared by Emezuo and his
trial counsel and was submitted on May 7, 1998, to the
probation officer reviewing his case. (Sep. App. of Pet’r, Tab
4, App. A.) It is this written statement which Emezuo now
contends contains the information that, if it had been
proffered to the government, would have rendered him
eligible for a two-level “safety valve” reduction pursuant to
U.S.S.G. § 2D1.1(b)(6).2 In his written statement, Emezuo
again claimed to have been initially duped by Titi, but after
several months of receiving wire transfers on her behalf, he
began to suspect that she may have been smuggling drugs
because the payment amounts were too frequent and large


1
    References to “Pld’g Tr.” refer to the Pleading Transcript.
2
  For purposes of the safety valve, a probation officer does not
qualify as “the government.” See United States v. Smith, 174 F.3d
52, 56 (2d Cir. 1999); United States v. Contreras, 136 F.3d 1245,
1246 (9th Cir. 1998); United States v. Jimenez Martinez, 83 F.3d
488, 496 (1st Cir. 1996); United States v. Rodriguez, 60 F.3d 193,
196 (5th Cir. 1995).
4                                               No. 02-1263

to have been for clothing. He subsequently learned that
Titi’s “sister” in the United States was actually Bola and,
shortly thereafter, that Titi was definitely sending drugs to
her. He then began regularly assisting Titi with dealing
drugs and helping her package drugs inside suitcases
containing clothing. On one occasion, he was promised the
profits from 350 grams of the kilo of heroin that Titi had
packaged in a suitcase. Titi paid him $5,000 before he
returned to Nigeria in late 1994 and also sent an automo-
bile and expensive watch to him in Nigeria. In Nigeria, he
met Bola, who told him that she had problems with Titi’s
lying to her and asked him to help her deal drugs in 1995
when she planned to return to America and he to Bangkok.
  The statement discusses in some detail Emezuo’s dealings
with Bola in 1995 and the ways in which he assisted her,
and that he owned 300 grams of a one-kilogram shipment
of heroin. The statement also mentions the names of several
associates and the roles they played and admits that Bola
wired funds directly to Emezuo, some of which he was to
disburse to Bola’s source in Bangkok. Emezuo admitted to
acting as an intermediary between Bola and her Bangkok
source during another transaction in 1995 involving 1300
grams of heroin and to receiving the money from Bola for
this transaction. Emezuo mentioned an additional transac-
tion, again involving 1300 grams of heroin, which was
thwarted when the courier destroyed the drugs after her
room (but, in an oversight, not her person) had been
searched by Drug Enforcement Administration agents in
New York. He mentioned one further transaction in Sep-
tember 1995 with which he was not involved, but which
resulted in the arrest of Bola in possession of drugs which
she had imported from Nigeria.
  Apparently believing that this written statement was
a truthful and complete proffer to the government, on
May 14, 1998, Emezuo filed a pro se “motion for safety
No. 02-1263                                                  5

valve” with copies to his trial counsel and the probation of-
ficer, stating that he had provided the government and his
lawyer with the necessary information regarding his in-
volvement in the conspiracy. (Sep. App. of Pet’r, Tab 4, App.
E.) However, the Sentencing Recommendation prepared by
the probation officer stated that Emezuo “does not appear
to qualify for the two-level reduction under the safety valve
provision (5C1.2) because he has not proffered to the
government.” (Sentc’g Recomm. at 2.3 ) At sentencing, the
district court adopted the factual findings and guideline
range set out in the Presentence Investigation Report
(PSR), including the PSR’s recommendations as to Emezuo’s
“marginal” but sufficient acceptance of responsibility, his
ineligibility for the safety valve and that no upward adjust-
ment was warranted for obstruction of justice. Emezuo was
sentenced to 145 months, which included a six month
downward departure from the bottom of the applicable
range as determined by the district court.
  Emezuo was unsuccessful on a direct appeal of his
ineligibility for the safety valve reduction, see United States
v. Hamzat, 217 F.3d 494, 501 (7th Cir. 2000), and he filed
the present motion pro se on November 29, 2000. In his
motion, he claimed that his trial counsel was ineffective for
failing to secure him a proffer session with the government
that he argues would have resulted in his eligibility for the
safety valve reduction. The district court denied Emezuo’s
§ 2255 motion and denied an evidentiary hearing, both of
which decisions are appealed.
  It is clear from the district court’s opinion that it did not
interpret Emezuo’s pro se motion as a claim that his lawyer
failed to effectively proffer Emezuo’s written statement
independently of a plea bargain, but rather as “in essence”


3
  References to “Sentc’g Recomm.” refer to the Sentencing
Recommendation.
6                                                No. 02-1263

claiming that his lawyer was ineffective because he “failed
to facilitate a plea agreement that would have allowed him
to give a proffer to the government and to be eligible for a
reduction under the safety valve provision.” (Pet’r Br. at B7
(emphasis added).) As Emezuo’s appellate counsel now
makes clear, it is the former interpretation— not to men-
tion his trial counsel’s failure to indicate Emezuo’s willing-
ness to submit to a safety valve interview—that is truly the
essence of Emezuo’s claim. This is borne out in the govern-
ment’s opposition to Emezuo’s pro se § 2255 motion, in
which it argued that Emezuo’s lawyer had decided not to
proffer for strategic reasons, particularly because the
parties disagreed over the quantity of drugs for which
Emezuo was responsible—a disagreement that the govern-
ment claimed could have exposed him to an enhancement
for obstruction of justice. (Gov’t Resp. to Def.’s Pet. for
Relief Pursuant to § 2255 at 8.) It therefore appears from a
review of the record that Emezuo’s ineligibility for the
safety valve at the time of sentencing was based on his
failure to provide any information to the government.
Because the district court apparently misconstrued
Emezuo’s ineffective assistance claim, it did not discuss his
written submission to the probation officer in deciding to
deny Emezuo a hearing, let alone make any findings as to
the truthfulness or completeness of the statement. (Pet’r Br.
at B7-B9.)
  When considering a claim of ineffective assistance of
counsel, we review the district court’s conclusions of law de
novo, its factual findings for clear error and its denial of an
evidentiary hearing for abuse of discretion. United States v.
Traeger, 289 F.3d 461, 470 (7th Cir. 2002). The district
court’s interpretation of the safety valve provisions is also
reviewed de novo. United States v. Ramirez, 94 F.3d 1095,
1099 (7th Cir. 1996). Determinations of credibility by the
fact-finder are reviewed for an abuse of discretion. United
States v. Edun, 890 F.2d 983, 988-89 (7th Cir. 1989). In
No. 02-1263                                                     7

order to determine whether the failure to proffer Emezuo’s
written statement to the government constituted ineffective
assistance, we must evaluate whether Emezuo was preju-
diced by his counsel’s performance and, if we find that he
was, whether his counsel’s performance was deficient. See
Strickland v. Washington, 466 U.S. 668, 697 (1984) (“If it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.”).


                               II.
  The prejudice prong of Strickland’s familiar test requires
that a defendant demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” Id. Emezuo argues, as he
must, that the information in his written statement is
complete and truthful, and that it would have fulfilled the
proffer requirement of the safety valve provision if it had
been provided to the government. Moreover, he claims that
his trial counsel should have indicated to the government
that Emezuo was willing to submit to a safety valve
interview. He claims prejudice because, if he had received
the safety valve reduction, his Guidelines range would have
been 121-151 months instead of 151-181 months, and he
argues that the district court would have again sentenced
him at the bottom of the range and favored him with the
same six month downward departure, resulting in a 115
month sentence instead of the 145 months he received.4


4
  We note with respect to the six month downward departure that
this court recently held under nearly identical circumstances that
                                                   (continued...)
8                                                  No. 02-1263

  The government responds that Emezuo cannot demon-
strate prejudice for two reasons: (1) even if the information
contained in his written statement had been proffered to
the government, it contained omissions and inconsistencies
that prevented it from being truthful and complete, so he
would not have been eligible for the safety valve in any
case; and (2) his sentence of 145 months was within the
Guidelines range he claims should have applied, so he
cannot demonstrate a reasonable probability that he would
have received a shorter sentence even if he had received the
two-level safety valve reduction. (Gov’t Br. at 26, 29-30.)


A. Emezuo’s Written Statement
  Our analysis begins with the government’s critical first
contention: that the written statement, intended as a
proffer, was not truthful and complete. Upon review of the
statement, we conclude on the basis of the record and the
district court’s findings at sentencing that it was not an
entirely truthful proffer. Emezuo therefore cannot show
that he would have been entitled to the safety valve ad-
justment even if the written statement had been proffered
to the government, so he is not entitled to relief under
§ 2255.
  The safety valve provision was enacted by Congress in
order to benefit defendants who wished to cooperate with
the government but, because they were less culpable, or
because their more culpable colleagues had already cut
deals with the authorities, they did not have new or useful
information to provide. United States v. Arrington, 73 F.3d


(...continued)
“departures from the correctly established guideline range based
merely on a defendant’s status as a deportable alien are not
authorized.” United States v. Meza-Urtado, 351 F.3d 301, 305 (7th
Cir. 2003).
No. 02-1263                                                9

144, 148 (7th Cir. 1996). Thus, in order to qualify for the
two point safety valve reduction pursuant to U.S.S.G.
§ 2D1.1(b)(6), a defendant must meet the five criteria set
out in U.S.S.G. § 5C1.2(a):
    (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, man-
        ager, or supervisor of others in the offense, as de-
        termined under the sentencing guidelines and was
        not engaged in a continuing criminal enterprise, as
        defined in 21 U.S.C. § 848; and
    (5) Not later than the time of the sentencing hear-
        ing, the defendant has truthfully provided to the
        Government all information and evidence the de-
        fendant 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 informa-
        tion to provide or that the Government is already
        aware of the information shall not preclude a de-
        termination by the court that the defendant has
        complied with this requirement.
Though it is undisputed that Emezuo met the first four cri-
teria, his trial counsel did not ensure that Emezuo’s infor-
mation was proffered to the government prior to sentencing.
(Sentc’g Recomm. at 2.) It is Emezuo’s burden to prove that
he would have been eligible for the safety valve reduction if
10                                                   No. 02-1263

the proffer had been correctly made. United States v.
Martinez, 301 F.3d 860, 866 (7th Cir. 2002).
  The government claims that Emezuo’s written state-
ment “would have fallen far short of being a complete
and truthful account of his role,” (Gov’t Br. at 27), but
under these circumstances, the statement’s truthfulness
is more significant than the statement’s completeness.
Emezuo indicated at his sentencing hearing that he had
been willing to “talk to the prosecutor,” (Sentc’g Tr. at 16),5
and he contends on appeal that his trial counsel’s ineffec-
tiveness also encompassed the failure to indicate this wil-
lingness. We have previously held that a truthful written
statement combined with an indication to the government
of willingness to submit to a safety valve interview satisfied
the safety valve disclosure requirement, because the gov-
ernment cannot complain of incompleteness if it refuses
to allow the defendant to finish telling his story. United
States v. Brack, 188 F.3d 748, 763 (7th Cir. 1999). Thus, the
truthfulness of Emezuo’s written statement (and any
additional information provided in the follow-up interview)
is the key issue: if Emezuo’s proffer was not truthful, his
counsel’s failure to ensure that it be provided to the gov-
ernment was clearly harmless.
  The resolution of this key issue hinges on a single point
in dispute: whether, as Emezuo contends, he was initially
duped into assisting Titi, or whether, as the government
contends, he must have known all along that she was
smuggling heroin because he had previously been involved
with dealing drugs with a different source.6 (Pld’g Tr. at 71.)

5
    References to “Sentc’g Tr.” are to the Sentencing Transcript.
6
   The government’s purported comparison of the plea colloquy
with Emezuo’s written statement sheds little light on our evalua-
tion of the statement for several reasons. First, despite both the
government’s and the PSR’s observations to the contrary, the
                                                    (continued...)
No. 02-1263                                                        11

In determining that 8 kilograms of heroin smuggled into the
United States by the conspiracy in late 1993 were attribut-
able to Emezuo, the probation officer had to evaluate the
credibility of both of these claims, and she resolved this
disputed fact in the government’s favor.7 On the other hand,
she determined that Emezuo was not responsible for a two-
kilo shipment of heroin in January 1994 that the govern-



(...continued)
statement appears to include the information which is claimed to
be lacking. (Pet’r Br. at 11-12.) But even if it doesn’t, these
“omissions” could have been corrected in a safety valve interview,
as they apparently were in a follow-up interview with the pro-
bation officer. See Brack, 188 F.3d at 763. This also assumes that
these pieces of information had not already been successfully
proffered during the plea colloquy. See United States v. Schreiber,
191 F.3d 103, 108 (2d Cir. 1999) (“The safety valve statute does
not specify the form, place, or manner of disclosure.”).
  As for Emezuo’s alleged procurement of heroin for the present
conspiracy, (PSR, Attach. 1 at 2), the record is unclear whether
the government has stood by this argument or not. Is the gov-
ernment merely claiming that Emezuo’s previous involvement
with another heroin source “put[ ] . . . into substantial doubt” his
claims of ignorance with respect to his initial dealings with Titi,
(Pld’g Tr. at 71), or is it also claiming that Emezuo actually pro-
cured heroin for the present conspiracy? (PSR, Attach. 1 at 2.)
Since the government’s brief on appeal does little to clarify this
point, (Gov’t Br. at 28), and since the resolution of this issue is not
necessary to our decision, we decline to evaluate it.
7
  This may also explain why the probation officer found Emezuo’s
acceptance of responsibility to be “marginal” and why she noted
that “he has basically admitted to the conduct” and that “the
defendant tends to minimize his conduct.” (PSR at 11 (emphasis
added).) Moreover, since the disputed fact relates to the conduct
comprising the offense of conviction, it supports the government’s
argument that if Emezuo’s trial counsel had made the proffer and
forced the issue, “he risked prompting the government to argue
that Emezuo did not deserve the two-point reduction for accep-
tance of responsibility.” (Gov’t Br. at 31.)
12                                              No. 02-1263

ment contended should be included. (PSR at 7-8.) This
indicates that she was open to finding the government’s
version to be insufficiently supported by the evidence, and
her rejection of Emezuo’s version thus seems more plausible
and not arbitrary.
  In adopting the findings of the probation officer at sen-
tencing, including the recommendation as to the amount of
heroin for which Emezuo was responsible, the district court
also implicitly accepted the government’s argument that
Emezuo was aware that Titi was smuggling heroin from the
inception of his involvement with her. While it is possible
that the district court may have decided this issue differ-
ently if it had been squarely presented for resolution via a
safety valve proffer whose truthfulness was disputed by the
government, we have previously held that the district
court’s findings of fact “would easily withstand clear error
review.” Hamzat, 217 F.3d 494, 501. Thus, we cannot
conclude that the record supports a finding that Emezuo’s
written statement was entirely truthful, and his trial
counsel’s failure to proffer this statement to the government
was therefore harmless. We need not explore whether
Emezuo’s trial counsel’s performance was deficient. See
Strickland, 466 U.S. at 697.


B. Sentencing Range
  Although our conclusion that Emezuo’s proffer was not
entirely truthful is dispositive of his appeal, the govern-
ment’s second argument why Emezuo was not prejudiced
also merits discussion because it was apparently accepted
by the district court, yet it is not supported by the law of
this circuit. The government argues that Emezuo cannot
demonstrate prejudice because his sentence is already
within the Guidelines range Emezuo argues should have
applied, and he cannot prove that the judge would have
given him a shorter sentence than the one he received. The
No. 02-1263                                                13

district court appears to have accepted this argument in
finding that Emezuo could not establish prejudice, stating
that “his sentence still falls within the allowable range.”
(Pet’r Br. at B9-B10.)
  But we have held that “where two Guidelines ranges
overlap . . . , the technical dispute over which range to apply
may be left unresolved . . . [a]s long as it is reasonable to
conclude that the same sentence would have been imposed
regardless of the outcome of the dispute over which range
to apply.” United States v. Howard, 179 F.3d 539, 545 (7th
Cir. 1999). We had previously found it reasonable to
conclude that the same sentence would have been imposed
regardless of which Guidelines range applied when the
sentencing judge had specifically said as much at the
sentencing hearing, see id., and when the district court
indicated that, if a lower sentencing range had applied, he
would have sentenced the defendant to the high end of that
range, see United States v. Utecht, 238 F.3d 882, 890 (7th
Cir. 2001). Other circuits have found it unreasonable to
conclude the same sentence would have been imposed
“[w]here it appears . . . that the district court chose a
sentence because it was at the low end of the applicable
Guidelines range.” United States v. Williams, 891 F.2d 921,
923 (2d Cir. 1989), citing United States v. Vasquez, 874 F.2d
250, 252 (5th Cir. 1989). We, too, have held that
    “[a] sentence based on an incorrect guideline range
    constitutes an error affecting substantial rights and can
    thus constitute plain error.” Although the sentence that
    the district court selected in this case is within the
    correct as well as the incorrect Guidelines range, we
    must remand unless we have reason to believe that the
    error did not affect the district court’s selection of a
    particular sentence. Williams v. United States, 117 L.
    Ed. 2d 341, 112 S. Ct. 1112, 1120-21 (1992); United
    States v. Panadero, 7 F.3d 691, 698 n.4 (7th Cir. 1993).
    Here, the district court chose the lowest possible sen-
14                                               No. 02-1263

     tence within the erroneous range. We have no reason to
     believe that it would not have selected an even lower
     sentence if given the opportunity to do so.
United States v. Wallace, 32 F.3d 1171, 1174-75 (7th Cir.
1994).
  Here, too, the district court selected the lowest possible
sentence within the erroneous range and then departed
downward by an additional six months. Although there was
no statement of reasons given at sentencing why the lowest
end of the range was the appropriate starting point, the
district court characterized Emezuo’s sentence as “a very,
very long sentence to begin with” and noted that Emezuo
was “getting as minimal a sentence as I legally can give
you.” (Sentc’g Tr. at 14, 17.) Thus, although the district
court noted in denying Emezuo’s § 2255 motion that it could
have imposed the same sentence even in the lower sentenc-
ing range, we cannot conclude that it would have reimposed
the same sentence, rather than, as Emezuo argues, adopt-
ing the same reasoning as earlier and imposing a sentence
at the bottom of the lower range. If sentencing within the
lower range had been warranted, the mere fact that
Emezuo’s earlier sentence was already within that range
would not have supported a finding that Emezuo did not
suffer prejudice.


                        Conclusion
  Although the resolution of this appeal comes down to an
implied finding of fact made by the probation officer and
adopted by the district court, it is a finding that we will not
disturb. Emezuo has failed to prove that his proffer was
entirely truthful, and so the district court must be
                                                   AFFIRMED.
No. 02-1263                                        15

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—2-6-04
