                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         April 9, 2007
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                         No. 06-4103
 v.                                               (D.C. No. 2:04-CR-673-DB)
                                                           (D. Utah)
 LU CIA N O A VEN D A N O M O NTOYA,
 also known as Avendan M ontoya
 Luciano, also know n as Jose
 Fernandez, also known as A lvaro
 Sanchez,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, HOL LOW A Y, and GORSUCH, Circuit Judges.


      Defendant-Appellant Luciano Avendan M ontoya appeals from the district

court’s decision not to grant him a downward departure pursuant to the safety

valve provisions of 18 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. § 5C1.2. Had the

district court applied the safety valve reduction, M r. M ontoya’s Guideline range

would have been 87 - 108 months’ imprisonment, rather than the 120 - 135 month




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
range the district court applied in the absence of the safety valve. The district

court refused to apply the safety valve because it determined that M r. M ontoya

had been less than truthful with the government regarding his previous drug

activity and the identity of his drug supplier. Our jurisdiction arises under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.



                                     Background

      After receiving a tip from a confidential informant that M r. M ontoya was

involved in the transportation of methamphetamine, on September 3, 2004, police

in Utah County, Utah performed a traffic stop on M r. M ontoya’s vehicle.

Although M r. M ontoya was stopped as the result of an equipment violation, a

drug-sniffing dog was called to the scene. The dog indicated that drugs were

hidden within the vehicle, a search was performed, and drugs were found. M ore

specifically, police located four baggies of methamphetamine, $7,930 in cash, and

a pay/owe sheet inside a hidden compartment in the passenger side airbag.

Despite the presence of a passenger in the vehicle, M r. M ontoya admitted that the

drugs and money belonged exclusively to him.

      The government charged M r. M ontoya with knowingly and intentionally

possessing with intent to distribute fifty or more grams of actual

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (count

1), and knowingly and unlawfully possessing cocaine, in violation of 21 U.S.C. §

                                         -2-
844 (count 2). Following an unsuccessful suppression motion, M r. M ontoya

entered a plea of guilty to count 1 on February 1, 2006. In return for his plea, the

government agreed to dismiss count 2. It also agreed, based on the information

known at the time, that M r. M ontoya would fall within the safety valve provisions

found within 18 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. § 5C1.2, provided that he

fully revealed all information he had regarding the offenses with which he was

involved. As part of his plea, M r. M ontoya stipulated that he had possessed 324

grams of methamphetamine, of which 239.7 was actual methamphetamine, and

that this was a distributable amount. He also admitted possessing $7,930 as

proceeds from methamphetamine distribution.

      Prior to sentencing, the Probation Office prepared a Presentence

Investigation Report (PSR ) which identified M r. M ontoya’s base offense level as

34 and his criminal history category as I. See ROA Vol. V at 3-4. Assuming a

two-level reduction for the safety valve, and applying a three-level reduction for

acceptance of responsibility, the PSR calculated M r. M ontoya’s adjusted base

offense level as 29. Given a base offense level of 29 and criminal history

category of I, M r. M ontoya’s advisory Guidelines sentencing range was 87 to 108

months’ imprisonment. See id. at 8. The PSR also noted, however, that, in the

absence of the safety valve, the mandatory minimum sentence of ten years’

imprisonment found within 21 U.S.C. § 841(b)(1)(A) w ould apply.

      On April 18, 2006, the district court held a sentencing hearing. At that

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time, counsel for both M r. M ontoya and the government informed the court that

the government did not believe M r. M ontoya had been completely forthcoming

regarding his involvement in the crimes for which he was arrested. The

government claimed that earlier that morning an Immigration and Customs

Enforcement (ICE) Agent “went in and attempted to speak with [M r. M ontoya]

and he was not cooperative at all.” ROA Vol. IV at 5. The government further

explained that the ICE Agent “went back two more times and gave [M r. M ontoya]

three opportunities to be forthcoming,” and that “[i]t was not until the third

interview that the agent felt like the defendant really came around and said

anything at all.” Id. Even after that point, however, “the agent was clearly left

with the impression that [M r. M ontoya] w ould only tell [him] what [M r.

M ontoya] knew [the agent] already knew.” Id.

      After listening to counsels’ arguments, giving M r. M ontoya an opportunity

to speak, and expressing some misgivings about which party bears the ultimate

burden of persuasion on the applicability of the safety valve, the district court

found “that whether the burden rests with the defendant or rests with the

government, that based on what I have been given here today I’m finding that the

defendant has . . . not met the five requirements.” Id. at 13. The court further

noted that the safety valve “anticipate[s] a truthful dissemination of all of the

information that he knows about these offenses,” and that “I have a hard time

believing that he couldn’t provide more information than he has.” Id. at 14. As a

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result, the district court chose not to apply the safety valve reduction and imposed

the mandatory minimum sentence of 120 months’ imprisonment, followed by 60

months’ supervised release.

      On appeal, M r. M ontoya argues that he was entitled to the safety valve

reduction because he provided the government with all the information he

possessed about the offense. He also argues that the district court committed

reversible legal error because once a defendant has met the burden of showing

that he has provided all information related to the offense, “the Government has

the burden to rebut the defendant’s arguments w ith specific facts, as opposed to

mere assertions.” Aplt. Br. at 5.



                                      Discussion

      W e review the district court’s determination of eligibility for safety valve

relief under § 3553(f)(1)-(5) and § 5C1.2(a) for clear error. United States v.

Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006). To the extent the district

court interpreted either the scope or meaning of the safety valve provisions, our

review of those interpretations is de novo. Id. Lastly, our review is colored by

the fact “that the district court’s application of the safety valve is fact specific and

dependant on credibility determinations that cannot be replicated with the same

accuracy on appeal.” United States v. Virgen-Chavarin, 350 F.3d 1122, 1129

(10th Cir. 2003).

                                          -5-
      In 18 U.S.C. § 3553(f), Congress provided defendants relief from

mandatory minimum sentences under certain limited circumstances. Both §

3553(f) and U.S.S.G. § 5C1.2(a) allow the sentencing court to impose punishment

pursuant to the Guidelines and “without regard to any statutory minimum

sentence” when the court finds that five criteria have been met. It appears that

only the fifth criterion is at issue in this case. The fifth criterion limits the

circumstances in which the sentencing court may disregard a mandatory minimum

sentence to those in which:

      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 . . . .

18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5).

      It is well-established that the defendant bears the burden of proving, by a

preponderance of the evidence, that the safety valve provisions apply. See

Stephenson, 452 F.3d at 1179; United States v. Verners, 103 F.3d 108, 110 (10th

Cir. 1996). The scope of the disclosure required to satisfy § 3553(f)(5) and §

5C1.2(a)(5) is very broad. See United States v. Acosta-Olivas, 71 F.3d 375, 378

(10th Cir. 1995). Thus, the defendant “must tell the Government about both his

or her involvement, and also what he or she knows about the involvement of other

participants in the crime.” Verners, 103 F.3d at 110. In other words, the

defendant must “truthfully tell all he knows to the government.” Acosta-Olivas,



                                           -6-
71 F.3d at 379.

      In the instant case, the district court determined that M r. M ontoya had not

truthfully told the government all he knew about his offense and the other

individuals involved. At M r. M ontoya’s sentencing hearing, the government

informed the court that during the course of his interview with an ICE Agent, M r.

M ontoya claimed that he met his supplier at a bar and that the supplier fronted

him drugs, but that M r. M ontoya did not know the individual and could not

identify him. Eventually M r. M ontoya did identify his source as an individual

nicknamed “Chewy.” He also described Chewy as being six-feet tall and

weighing 200 pounds. Because that physical description and nickname matched

another individual who was known to be a drug distributor in the Ogden, Utah

area, and who had recently been indicted, the government obtained a photograph

of that individual to attempt to obtain a positive identification from M r. M ontoya.

W hen shown the photograph of that individual, however, M r. M ontoya would not

admit that the man in the picture was his supplier.

      The district court also heard evidence that despite being in possession of

nearly $8,000 in cash at the time of his arrest, during the first two interview s, M r.

M ontoya would not reveal where the cash came from or the quantity of drugs he

had previously sold. At first, M r. M ontoya said he had only previously sold drugs

on one occasion, but then his story changed, and he claimed he had only

previously sold drugs twice. At last, during the third interview, M r. M ontoya

                                          -7-
admitted to selling drugs on five prior occasions and that the money he possessed

at the time of his arrest derived from those sales.

         M r. M ontoya’s counsel argued in response that Chewy is a very common

nickname and that “[t]here was detail from the start and my client answered

questions, and then the detail stopped and my client didn’t have everything [the

agent] wanted.” ROA Vol. IV at 8. His counsel also said that the passage of time

might explain M r. M ontoya’s lack of detailed information. W hen given a chance

to speak, M r. M ontoya apologized for his crime, asked for a considerate sentence,

described how he had come to realize the importance of his family, and requested

that he be permitted an appeal if the court chose not to apply the safety valve. Id.

at 11.

         In denying the safety valve, the district court noted that it was concerned

about M r. M ontoya’s failure to provide more assistance to identify his supplier.

The district court explained that it might have been more willing to apply the

safety valve had “[M r. M ontoya] done something more to lead the authorities to

some evidence that would allow them to have a better chance of finding out who”

his supplier was. Id. at 13. It also explained that it was persuaded by the

government’s argument that an individual involved in distributing such a large

amount of drugs would know the identity of his supplier. The district court

concluded that M r. M ontoya was “completely capable of persuading the

authorities of something,” and that “[i]f the evidence suggested that this was a

                                           -8-
one time deal, and especially if it involved smaller quantities, I could more easily

believe that he didn’t know more than he knows.” Id. at 14.

      Based on the foregoing, the district court did not commit clear error in

determining that M r. M ontoya failed to meet his burden of truthfully telling all he

knew to the government. 1 Clearly, M r. M ontoya’s story changed a number of

times throughout the course of three interviews. The district court was, therefore,

free to infer that M r. M ontoya’s final rendition of the facts underlying his

offense— that all he knew about his supplier was that his nickname was Chewy

and that the $8,000 in cash came from only five previous drug sales— was yet

another in a long series of lies. Also, the district court’s assumption that someone

distributing 324 grams of methamphetamine would know more about his supplier

than M r. M ontoya claimed he knew was a reasonable one. Cf. Stephenson, 452

F.3d at 1181.

      M r. M ontoya argues that he could not have been expected to identify the

man in the photograph because a great deal of time had passed since his arrest.

But the district court did not base its denial of safety valve relief only on M r.

M ontoya’s failure to identify the man in the photograph. Instead, it based its

denial on the overall lack of information conveyed regarding M r. M ontoya’s



      1
        Because we hold that M r. M ontoya failed to meet his initial burden to
demonstrate that he had truthfully told all that he knew, we need not decide
whether, at some point, the government is tasked with rebutting a defendant’s
argument that he qualifies for a safety valve reduction. See Aplt. Br. at 10-15.

                                         -9-
supplier in conjunction with the large amount of narcotics and cash that he

possessed. That was an allowable basis on which to deny safety valve relief.

      M r. M ontoya also argues that “[t]he Government’s claims that [he] did not

provide truthful information rings [sic] hollow because they were already

prosecuting ‘Chewy’ and did not need [his] identification in order to prosecute.”

Aplt. Br. at 9. W hether the government needed his identification, however, is

irrelevant, and M r. M ontoya admits as much in his brief on appeal. See id. at 10

(“The safety valve . . . does not require that the information supplied to the

Government be helpful . . . .”). W hat does matter is whether M r. M ontoya was

entirely truthful and forthcoming in providing information to the government

regarding his offense and those connected with it. The district court found that

M r. M ontoya had not been completely truthful and forthcoming in his discussions

with the ICE Agent, and, as discussed, that determination was not clear error.

Thus, the district court correctly refused to apply the safety valve reduction, and

M r. M ontoya’s sentence of 120 months’ imprisonment must stand.

      AFFIRM ED.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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