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

No. 02-1899
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

HUMBERTO CRUZ ALVARADO,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 00 CR 902-1—Rebecca R. Pallmeyer, Judge.
                          ____________
   ARGUED NOVEMBER 14, 2002—DECIDED APRIL 9, 2003
                  ____________


 Before RIPPLE, ROVNER, and DIANE P. WOOD, Circuit
Judges.
  DIANE P. WOOD, Circuit Judge. In this appeal, defendant
Humberto Cruz Alvarado asks us to find that the district
court erred in its finding that he was not eligible for the
“safety valve” exception to the five-year mandatory mini-
mum sentence for his marijuana offense. See 18 U.S.C.
§ 3553(f); U.S.S.G. § 5C1.2. The court rejected Cruz’s ar-
gument on the ground that he had not given the govern-
ment complete information about certain aspects of his
offense before his sentencing hearing began. Finding no
error (legal or factual) in this decision, we affirm the sen-
tence.
2                                               No. 02-1899

                             I
  The details of Cruz’s underlying offense reveal that he
became involved with a common marijuana distribution
operation. In October 2000, Cruz’s sister Griselda called
him in Chicago from her home in Guadalajara, Jalisco,
Mexico, and asked him if he would be willing to accept
a shipment for her and provide temporary storage. She
offered to pay him for this service. Cruz speculated that
the shipment might involve drugs, as the family suspected
that Griselda’s husband was a drug trafficker. Nonethe-
less, he agreed to accept the shipment. Cruz’s wife balked
at the idea that the goods would be stored at their apart-
ment, and so Cruz asked his wife’s brother, Juan De La
Torre, to keep them instead. De La Torre agreed.
  The shipment in question consisted of 30 wooden crates
weighing approximately 75 pounds apiece. Inside the
crates were hollowed-out imitation-marble disks filled
with marijuana. The ruse failed when, on November 2,
2000, customs officials at Chicago’s O’Hare airport de-
cided to inspect one of the crates and discovered the
marijuana. Federal agents then posed as employees of
the shipping company and delivered the crates to De La
Torre’s house, where a young man instructed them to place
the crates behind the garage. Shortly thereafter, Cruz and
De La Torre arrived separately and moved the crates into
the interior of the garage. While they were inside the
garage, De La Torre noticed the marijuana inside the
disk that the customs agents had broken open. He showed
Cruz, but apparently neither man guessed at the reason
why the disk had been damaged. Cruz promised De La
Torre that the latter would be paid to store the crates until
someone picked them up.
  The pick-up never occurred. Instead, federal agents
executed a search warrant and arrested both Cruz and
De La Torre. They broke open the remaining disks and
No. 02-1899                                              3

weighed the marijuana, which totaled approximately
272.15 kilograms. Along with the marijuana and the
packaging materials, the agents also seized the bill of
lading for the shipment, on which three handwritten
numbers appeared. The numbers were not identified by
function (telephone numbers? garage codes? something
else?), but did have several letters Cruz would later iden-
tify as his sister’s nickname (“Gris”) scrawled nearby.
  Cruz (but not De La Torre) was indicted on February 8,
2001, and charged with one count of possession with in-
tent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1). He pleaded guilty to the single charge on May
29, 2001. Earlier that month, he had met with government
representatives for a proffer interview, which he hoped
would entitle him to the benefits of the safety valve. The
prosecution team, however, believed that Cruz was refus-
ing to admit advance knowledge of the contents of the
shipment and that he was able, but unwilling, to disclose
contact information for Griselda and her husband.
  The question of the degree of Cruz’s cooperation con-
sumed a great deal of time at several phases of the sen-
tencing hearing. Sentencing proceedings began on January
10, 2002. At that hearing, Cruz argued that he qualified
for the safety valve because he met the first four require-
ments of § 3553(f) (which no one disputed) and he had
“truthfully provided to the Government all information
and evidence” he had about the offense. Id., § 3553(f)(5).
As one of his lawyers, Joseph Lopez, put it, Cruz could not
give any more information because he had nothing else to
offer. Co-counsel for Cruz, John DeLeon (who had been at
the proffer meeting), added that Cruz had told the govern-
ment then that Griselda had not given him a telephone
or pager number. The government responded to these
arguments with continued opposition. Although the court
was unconvinced that Cruz had done enough, it offered
4                                              No. 02-1899

to give him one more chance to demonstrate that he had
indeed cooperated fully.
  The sentencing hearing resumed on January 29. At
that time, defense counsel requested a copy of the bill of
lading that the customs agents had seized. Counsel ex-
plained that Cruz had recalled telling the agents at the
time of his arrest that his sister’s telephone number
actually appeared on the bill of lading. The government
reminded the court that this might not be dispositive,
because it had several reasons for objecting to the safety
valve, but the court decided for the time to focus on wheth-
er Cruz had shared all the information he had concern-
ing his sister. Once again, the hearing was continued so
that the bill of lading could be produced.
  The next hearing took place on February 11. By that time,
the prosecutor had furnished the bill of lading to Cruz
and had spoken to the two agents who were present for
the arrest. Both agents maintained that Cruz had not
told them anything about the numbers on the bill of lad-
ing. The court again decided to continue the proceeding,
this time so that Cruz and his attorneys could continue
to investigate the cryptic numbers.
  The penultimate sentencing hearing occurred on Febru-
ary 22. This time, proceeding more formally, the govern-
ment submitted affidavits from two of the arresting agents
stating that they had asked Cruz if he knew how to reach
his sister, and that Cruz had not referred them to the
numbers on the bill of lading. Defense counsel Lopez ar-
gued that the agents’ statements in the affidavits that
they had not inquired about the numbers were “incredible
and unlikely.” Furthermore, he argued, Cruz no longer
had the bill of lading in his possession after his arrest,
and thus did not have the handwritten numbers at his
disposal. He asserted that Cruz had alerted the govern-
ment to the presence of the numbers, and that there
No. 02-1899                                                5

was nothing more that Cruz could realistically have done.
Finally, Lopez argued that even if the agents were correct
and the topic of the numbers had not been discussed, this
was an oversight of the agents and it should not disqual-
ify Cruz for the safety valve. The prosecutors took issue
with the last point, arguing that it was not the govern-
ment’s obligation to ask Cruz about everything it had. Still
unsatisfied, the court continued the sentencing to a later
date when it could hear testimony from the individuals
present at the proffer and the arresting agents.
  At that hearing, which took place on April 4, the court
heard testimony from Agent Comesanas, who was pres-
ent at both the arrest and the proffer; from Linden Franco,
a member of the U.S. Customs task force; from Cruz him-
self; and from Assistant U.S. Attorney Barry Miller, who
had been handling the case but who withdrew so that
he could testify. The court chose to credit the accounts of
Agent Comesanas and AUSA Miller, who testified that
they had asked Cruz, at the very least, for any additional
information he had about his sister, but that Cruz did not
refer them either to a telephone number or to the bill of
lading. The court found Cruz’s testimony that he had
told both the prosecutor and the agents about the num-
bers at the proffer meeting not to be “plausible.” The court
also rejected Cruz’s argument that the disclosures that
had occurred over the course of the sentencing hearings
were enough in themselves to meet the statutory criteria
for the safety valve. It thus rejected the application of the
safety valve and sentenced Cruz to the statutory mini-
mum of five years’ imprisonment, plus a five-year term
of supervised release. If Cruz had been found eligible for
the safety valve, he would have had a base offense level of
26, reduced three levels pursuant to U.S.S.G. § 3E1.1 for
acceptance of responsibility, and then reduced two more
levels under U.S.S.G. § 2D1.1(b)(6), for a total offense
level of 21 and a guideline range of 37 to 46 months. See
U.S.S.G. § 5C1.2.
6                                                 No. 02-1899

                              II
   Our review of the district court’s findings about the
factual predicates for the safety valve is for clear error only.
See United States v. Williams, 202 F.3d 959, 964 (7th Cir.
2000). From that standpoint, we can find nothing to crit-
icize in the district court’s decision. Attempting to avoid
that demanding standard of review, Cruz has suggested
instead that the district court committed an error of law,
when it concluded that his disclosure of the information
about the numbers on the bill of lading did not occur in
a timely fashion because it took place during the course
of the sentencing hearing. If disclosure during the sen-
tencing hearing indeed counts as timely disclosure, Cruz
continues, there can be no question about his compliance
with the fifth element of the safety valve, and he is en-
titled to re-sentencing. Our review of the latter question
concerns the interpretation of the statute and guideline,
and thus is de novo. United States v. Brack, 188 F.3d 748,
762 (7th Cir. 1999).
  Congress enacted the safety valve statute, § 3553(f), to
allow certain non-violent first-time drug offenders to
avoid the application of statutory mandatory minimum
sentences, if they cooperated with the government. United
States v. Arrington, 73 F.3d 144, 147 (7th Cir. 1996). The
Sentencing Guidelines implement the statute in § 5C1.2.
The criterion at issue in Cruz’s case is the fifth one, which
mandates that:
    not later than the time of the sentencing hearing, the
    defendant has truthfully provided to the Government
    all information and evidence the defendant has concern-
    ing 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). The interpretive question before us
concerns the meaning of the phrase “not later than the
time of the sentencing hearing.”
No. 02-1899                                              7

  This court considered a similar question in United States
v. Marin, 144 F.3d 1085 (7th Cir. 1998), where we held
that a defendant who deliberately misled the government
before sentencing could not correct his lies at sentencing
in order to qualify for the safety valve. Id. at 1086. The
government suggests that this is the end of the matter,
and that the Marin holding implies that it is always too
late to offer cooperation at the time of the sentencing
hearing itself. Cruz responds that this is an over-reading
of Marin, especially in light of the following cautionary
language in the opinion itself:
   This case does not involve a defendant who misled the
   government and cured his misstatements before the
   commencement of the sentencing hearing. Nor does
   it involve a defendant who never misled the govern-
   ment prior to the sentencing hearing and provided a
   complete disclosure at the sentencing hearing. This
   case involves a defendant who lied to the government
   prior to sentencing, continued to lie during the sen-
   tencing hearing, and only provided a truthful version
   during the middle of the sentencing hearing when
   the government confronted him with evidence exposing
   his untruthfulness.
Id. at 1091 n.1 (emphasis added).
  The court in Marin looked at the language of the safety
valve statute, its purpose, and related policy concerns in
coming to the conclusion it reached. We agree with Cruz
that Marin is not the end of the matter, but we find much
of its analysis helpful for answering the question that
Marin reserved. First is the language of the statute. The
phrase “not later than the time of the sentencing hearing”
might mean either not later than the time when the
sentencing hearing begins, or it might mean not later
than any point up until the conclusion of the sentencing
hearing. Nothing in the statute compels either reading,
8                                              No. 02-1899

and so we must turn to other tools to interpret it. From a
policy standpoint, the Marin court relied in part on the
fact that if a defendant could provide information to the
court at the sentencing hearing, instead of to the govern-
ment at some prior point, the defendant would have an
open opportunity to mislead the government prior to
sentencing. Marin, 144 F.3d at 1092. That suggests that
the first interpretation is the better of the two.
  Also pointing in that direction is the fact that it is the
government to whom the defendant must provide the
information, not the court or any other actor. It makes
sense to read the statute as implying that the proffer must
be to the government directly, at a time before the formal
sentencing hearing, not to the government as a side-effect
of a discussion in open court. In addition, the utility of a
proffer diminishes as the government invests resources in
a case and the time for final judgment approaches. The
court in Marin observed that if a lying defendant need only
present a truthful account at his sentencing, the govern-
ment would not know until moments before the sentence
is pronounced whether it had received all pertinent infor-
mation, and it would thus need to continue investigat-
ing the case to uncover possible misrepresentations. Id.
Finally, the Marin court pointed out that defendants
who mislead the government do not fall within the class
that the safety valve statute was intended to protect: those
who genuinely and fully disclose all the information they
possess. Id. at 1094-95.
  Most of these arguments apply with equal force to the
situation in Cruz’s case. If the government cannot be sure
that it has a complete account of the offense from the
defendant until the end of the sentencing hearing, it is
just as unable to have confidence in the defendant’s prof-
fer as in the case of the untruthful defendant. The lengthy
course of the sentencing proceedings in Cruz’s case illus-
trates another undesirable effect of the rule he is urging—
No. 02-1899                                               9

if it is enough to reveal the truth at sentencing, rather
than before, then sentencing proceedings that require
repeated continuances to pursue side-issues will become
the order of the day. Allowing the defendant to benefit
affirmatively from information that seeps out drop by
drop through hearing after hearing is inconsistent with
the statutory call for complete and truthful information.
  Based on these and similar concerns, our sister circuits
have concluded the statute requires full disclosure before
sentencing proceedings begin. In United States v. Brenes,
250 F.3d 290 (5th Cir. 2001), the court reversed a district
court’s decision to accord safety valve benefits to a defen-
dant who repeatedly maintained his innocence until the
judge warned him at sentencing that his position would
lead to a longer sentence. Once he admitted his guilt, the
court ordered a recess, during which the defendant pro-
vided information to a DEA agent. Id. at 292. The Fifth
Circuit, relying in part on Marin, held that this was an
error of law. See also United States v. Schreiber, 191 F.3d
103, 107-10 (2d Cir. 1999) (using commencement of sen-
tencing hearing as end-point); United States v. Tournier,
171 F.3d 645, 647-48 (8th Cir. 1999) (same); United States
v. Gama-Bastidas, 142 F.3d 1233, 1242-43 (10th Cir. 1998)
(same); United States v. Brownlee, 204 F.3d 1302, 1305
(11th Cir. 2000) (same). We agree with these holdings, and
we thus conclude that cooperation that occurs after the
sentencing hearing begins comes too late for safety valve
purposes. (We have no need to decide here, and thus
reserve, the question whether eleventh-hour cooperation
immediately before the sentencing hearing begins will
always be regarded as timely, no matter how uncoopera-
tive the defendant has been earlier.)
  The only question remaining is whether the       district
court clearly erred when it concluded that Cruz    had not
informed the agents about his sister’s telephone   number
during the proffer meeting (or at any other time   prior to
10                                           No. 02-1899

the beginning of the sentencing hearings). The court re-
lied on its credibility assessments of the testimony and
affidavits offered by Agent Comesanas, Officer Franco,
AUSA Miller, and Cruz himself. We have no reason to
second-guess those determinations, and it is well estab-
lished that the district court’s choice of whom to believe
is almost never vulnerable to a finding of clear error.


                           III
  For these reasons, we AFFIRM the judgment of the dis-
trict court.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—4-9-03
