               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 04-1489

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                       SIMEON PENA-HERNANDEZ,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                                  Before

                       Boudin, Chief Judge,
              Torruella and Howard, Circuit Judges.



     Rodney S. Dowell and Berman & Dowell on brief for appellant.
     H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee.



                            August 26, 2005
            Per    Curiam.         Defendant      Simeon    Peña-Hernandez        was

indicted on one count of conspiring with others to possess with

intent to distribute more than five kilograms of cocaine in

violation    of   21     U.S.C.    §§   841(a)(1),       846,   which    carries     a

mandatory     minimum       sentence        of     120     months,      21     U.S.C.

§ 841(b)(1)(A)(ii).         After pleading guilty to that offense, he

was sentenced to 135 months' imprisonment.

            In this appeal, defendant initially challenged his

sentence on the sole ground that the district court should have

considered his eligibility for the "safety valve," despite his

refusal to submit to a debriefing.               After appellate briefing was

complete, defendant submitted a letter, under Fed. R. App. P.

28(j), further arguing that the case should be remanded for

resentencing in light of United States v. Booker, 125 S. Ct. 738

(2005). In reviewing the record, we noticed a plain error in the

application of the Guidelines, and we remand on that ground

without     reaching       defendant's          Booker    argument.           Because

defendant's eligibility for a safety-valve departure will be

relevant on remand, we address defendant's safety-valve argument

and find it to be without merit.

A.   Guidelines Calculation Error

            Under      Amendment     640    to    the    Guidelines,     effective

November    1,    2002    (prior     to    defendant's      sentencing),        if   a

defendant    receives       a     minor-role      adjustment     under       U.S.S.G.


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§ 3B1.2, the defendant's base offense level is capped at level

30.    U.S.S.G. § 2D1.1(a)(3).       As explained by the Sentencing

Commission, this cap was intended to "respond[] to concerns that

base offense levels derived from the Drug Quantity Table in §

2D1.1 overstate the culpability of certain drug offenders who

meet   the   criteria   for   a   mitigating   role   adjustment   under

§ 3B1.2."     U.S.S.G. App. C, Amendment 640.

             Although   defendant    here   was   given   a   minor-role

reduction, he was not given the benefit of the cap on his base

offense level.     Rather, his base offense level was deemed to be

38, based on the Drug Quantity Table, U.S.S.G. ch. 5, pt. A.          If

he had been given the benefit of the cap, along with the other

reductions already applied by the district court, his total

offense level would have been 25, with a sentencing range of 57

to 71 months, id., although a sentence below the mandatory

minimum would not have been possible without a safety-valve

departure.     Thus, with the benefit of the cap but without the

benefit of the safety valve, defendant should have been sentenced

to the mandatory minimum of 120 months, rather than the 135

months he received.

             Although defendant did not raise this argument either

below or on appeal, the government correctly concedes that the

error should be corrected under plain error review. As discussed

above, the district court erred in failing to cap defendant's


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base       offense   level      at   30    as     plainly     required     by   section

2D1.1(a)(3)      of     the     Guidelines.            That   error   in    Guidelines

application also satisfies the third and fourth prongs of the

plain error standard, United States v. Olano, 507 U.S. 725, 732

(1993), because it caused the court to substantially increase

defendant's sentence.              United States v. Sedoma, 332 F.3d 20, 29

(1st Cir. 2003).         For that reason, we vacate the sentence and

remand the case for resentencing.1

B.    Safety-Valve Eligibility

               The primary argument that defendant makes on appeal is

that the district court erred in failing to consider whether

defendant's initial statement, upon his arrest, sufficed to satisfy

the    fifth    requirement          for   a     safety-valve     departure--that        he

"truthfully      provide[]         to     the    Government     all   information     and

evidence [he] has concerning the offense," 18 U.S.C. § 3553(f)(5);

U.S.S.G. § 5C1.2(a)(5)2–-despite defendant's refusal to submit to

a safety-valve debriefing.

               While    it    is     true,      at    least   theoretically,      that    a

defendant      may     comply      with    the       fifth   safety-valve   requirement

without submitting to a debriefing, United States v. Montanez, 82


       1
      Because we remand on the above ground, we need not consider
the Booker-based argument for remand raised in defendant's Rule
28(j) letter. United States v. Caro-Muñiz, 406 F.3d 22, 24 n.1 (1st
Cir. 2005).
       2
      It is undisputed that defendant satisfied the four other
safety-valve requirements.

                                                -4-
F.3d 520, 523 (1st Cir. 1996), it remains defendant's burden "to

persuade the district court that he has 'truthfully provided' the

required information and evidence to the government."               Id.   Here,

the defendant made no attempt to satisfy that burden or to seek a

safety-valve departure at all.          At the sentencing hearing, defense

counsel repeatedly stated that he was seeking only a minor-role

adjustment, not a safety-valve departure.                  Thus, the district

court had no reason to consider or rule on defendant's eligibility

for the safety valve, and it did not err in failing to do so.                Cf.

id. at 522 (finding error where district court denied a safety-

valve departure because defendant had not been debriefed).                     A

fortiori, the court did not err in failing to hold an evidentiary

hearing on this issue where no such hearing was requested.                Id. at

523.

           The    sentence   is   vacated      and   the   case   remanded   for

resentencing.     See Local R. 27(c).         On remand, the district court

should   take    into   account   the    now-advisory      Guidelines     range,

including the 30-level cap on defendant's base offense level, along

with the other factors enumerated in 18 U.S.C. § 3553(a), and may

also consider, with or without taking additional evidence, whether

defendant's     initial   statement      on   arrest   satisfied    the   fifth

requirement for the safety valve.




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