                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                            April 24, 2007
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,                               No.06-8057
 v.                                                   (D.C. No. 05-CR-258-WFD)
                                                              (D. Wyo.)
 ELISEO VALLES-ESTRADA,

           Defendant-Appellant.



                                 ORDER AND JUDGMENT *


Before KELLY, HOLLOWAY, and GORSUCH, Circuit Judges.




       Defendant-Appellant Valles-Estrada pleaded guilty to entering a conspiracy to

possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A) and 21 U.S.C. § 846. Valles-Estrada appeals the district court’s decision

refusing to apply the safety-valve provision from U.S.S.G. § 5C1.2 of the Sentencing

Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and

we AFFIRM.


       *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent except under the doctrines of law of the case, res judicata and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.
                                   I. BACKGROUND

       Valles-Estrada has focused his appeal on his post-conviction conduct: did he

truthfully disclose all the information he possessed relating to his offense? The district

court heard from both sides and concluded that Valles-Estrada did not.

       The proceedings against Valles-Estrada began under the impression that he would

likely receive a safety-valve adjustment. Aplee. App., Vol. I, at 21. But relations

between Valles-Estrada and the Government soon turned sour. Appearing before the

district court after the case agent had interviewed Valles-Estrada, the Government

informed the court that Valles-Estrada did not fully disclose the information and evidence

he had concerning his offense. Aplt. App. at 16-17.

       The Government attacked Valles-Estrada’s statements on several grounds. For

example, Valles-Estrada told the agent that he received the drugs from “a fair man”

named “El Guero Lares.” 1 Aplee. App., Vol. II, at 71. The Government claimed that this

statement is incredible on its face. Aplt. App. at 17. Putting some substance behind its

assertion, the Government informed the court that it thoroughly investigated this alleged

drug source, but no one recognized a person with this name who would or could be a drug




       1
         Although Valles-Estrada argues that he described his drug source to the agent,
there is no evidence in the appellate record that he provided a more detailed description
than this. See Aplt. Br. at 5 (supporting his assertion by citing paragraph ten of the pre-
sentence report, which states no more than Valles-Estrada claims to have received the
drugs from “a fair man” named “El Guero Lares” and the DEA disagrees with defense
counsel’s claim that Valles-Estrada gave information about his source in two long proffer
hearings).

                                             -2-
source. Id. at 18.

       Valles-Estrada also told the agent that El Guero Lares operated in Gillette,

Wyoming. Aplee. App., Vol. II, at 71. But the Government informed the court that

Valles-Estrada’s phone records are inconsistent with this contention. Specifically, the

Government reviewed Valles-Estrada’s phone records concerning the time of his

controlled deliveries, and the phone records reflect that he made calls to a person in

Windsor, Colorado—evidence that his drug source was located in a different city from the

one he claimed.

       Finally, the Government and Valles-Estrada disputed whether Valles-Estrada

refused to disclose certain information for fear that doing so would jeopardize his

family’s safety. The Government asserted that Valles-Estrada was not fully forthcoming

because he feared for his family’s safety. The pre-sentence report agrees: “Agent

Waldock believes [that] the defendant was ‘high up on the food chain,’ and he was

unwilling to tell authorities everything he knew as he was in fear for his family’s well[-]

being.” Id. at 70. Valles-Estrada contends that he fully disclosed all the information that

he possessed, yet his counsel stated that “I’m sure the Court can also be certainly

sensitive to the fact that when family members are involved, there is some natural,

understandable, prophylactic reluctance to . . . involve family members; but that—that

[sic] in and of itself should not disqualify him from [receiving the safety-valve




                                             -3-
adjustment].” 2 Aplt. App. at 21-22. Soon after, the court recognized the problem with

this position:

           [t]hose who deal in the drug trade in Chihuahua are unsavory characters.
           They will gun down a police chief in Tijuana; they wouldn’t hesitate to gun
           down this defendant’s family members in reprisal for cooperation with the
           United States. Perhaps your client has taken that into account, and perhaps
           he concludes that in balance he has no alternative but to serve the ten years.
                   But I’m not going to engage in flights of fantasy or fiction to
           determine that he is somehow safety-valve-eligible. . . . [T]he fact of the
           matter is, sir, you were dealing with some very unsavory individuals who
           don’t have a great deal of value for your life or the life [sic] of your
           children, and that was your misfortune . . . .
           Id. at 23, 26.

       After granting Valles-Estrada several opportunities to disclose the information he

possessed, and after considering these facts, the district court concluded that Valles-

Estrada had not been fully forthcoming. Id. at 23, 26. Thus, the district court concluded

that Valles-Estrada was ineligible for the safety-valve adjustment, id. at 23, and the court

imposed a mandatory minimum sentence of 120 months’ imprisonment and 5 years’

supervised release, inter alia. Id. at 27-29.

                                       II. DISCUSSION

       We review for clear error a district court’s determination of eligibility for a safety-

valve adjustment. United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006).




       2
        This excerpt originally stated that “there is some natural . . . reluctance to not
involve family members.” (emphasis added). It is clear from the record and the district
court’s response, however, that Valles-Estrada’s counsel misused this negative and meant
to suggest that there is a reluctance to involve family members, not a preference for
involving them.

                                                -4-
But our review is de novo to the extent the district court interpreted the scope and

meaning of the safety-valve provision. Id. “In conducting our review, ‘[w]e are

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

dependent on credibility determinations that cannot be replicated with the same accuracy

on appeal.’” Id. (citing United States v. Virgen-Chavarin, 350 F.3d 1122, 1129 (10th Cir.

2003)).

       Congress enacted the safety-valve provision to avoid the harsh impact of

mandatory minimum sentences on the “offenders who most warrant proportionally lower

sentences—offenders that by guideline definitions are the least culpable . . . .” United

States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995). A defendant is entitled to a

safety-valve adjustment under U.S.S.G. § 5C1.2 3 if he or she proves by a preponderance

of the evidence that, inter alia,

           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 the information shall not preclude a
           determination by the court that the defendant has complied with this




       3
        U.S.S.G. § 2D1.1(b)(7) states that a defendant is entitled to a two-level reduction
of the offense level if he or she satisfies the safety-valve criteria set forth in § 5C1.2
(which is identical to 18 U.S.C. § 3553(f) where Congress enacted the safety-valve
provision). The offense-level reduction occurs without regard to the statutory minimum
sentence or a statutory minimum term of supervised release. § 5C1.2(a). See also §
5C1.2, comment (n. 9).

                                               -5-
           requirement.4

See Stephenson, 452 F.3d at 1179 (describing the defendant’s burden of proof).

       This provision casts a wide net over the kind of information that a defendant must

disclose before receiving the two-level reduction. As explained in U.S.S.G. § 5C1.2, this

provision requires a defendant to truthfully disclose to the Government “all information

and evidence” that the defendant has about the “offenses that were part of the same

course of conduct or of a common scheme or plan . . . .” The Guidelines’s commentary

defines “offense or offenses that were part of the same course of conduct or of a common

scheme or plan” as “the offense of conviction and all relevant conduct.” U.S.S.G. §

5C1.2, comment (n. 3). The Guidelines define “relevant conduct” to include “in the case

of a jointly undertaken criminal activity . . . all reasonably foreseeable acts and omissions

of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. §

1B1.3(a)(1)(B).

       The parties do not dispute that Valles-Estrada’s information about his drug source

falls within the ambit of § 5C1.2’s disclosure requirement. But Valles-Estrada argues that

the Government’s position that he failed to disclose “all information and evidence” is

unsupported by any evidence, aplt. br. at 6; that the Government’s failure to corroborate

his information is irrelevant, id. at 5; and that his cellular phone records do not




       4
        A defendant must also satisfy four additional criteria, but both parties agree that
Valles-Estrada has done so. Aplt. Br. at 5; Aplee. Br. at 9. We therefore omit discussion
of these criteria.

                                              -6-
necessarily reflect the phone calls he made to his drug source because he could have

called from a pay phone or a different cellular phone. Aplt. Reply Br. at 4. He further

claims that he disclosed the dates of his involvement in this offense, the name of the man

he received the drugs from, a description of that person, and where his drug source

delivered the drugs to him. Aplt. Br. at 5. Valles-Estrada therefore asserts that he proved

by a preponderance of the evidence that he truthfully disclosed all the information that he

possessed.

       Valles-Estrada’s position fails to account for our standard of review. When

reviewing the district court’s determination in this context, it is not our prerogative to

weigh the evidence anew and substitute our own decision for the one the district court

rendered. We must determine only whether the district court clearly erred. The district

court had before it (1) the Government’s assertion that it did not find evidence that

Valles-Estrada’s alleged drug source existed; (2) evidence that Valles-Estrada was calling

an individual in Windsor, Colorado, not Gillette, Wyoming, where his alleged drug

source operates; (3) evidence that Valles-Estrada gave a minimal and incredible

description of his alleged drug source; and (4) evidence that Valles-Estrada did not

disclose more information because he feared for his family’s safety.

       One can reasonably infer from these facts that Valles-Estrada did not truthfully

disclose all the information and evidence that he possessed. Evidence that Valles-Estrada

was tight-lipped because he feared for his family’s safety suggests that he could have

disclosed more information but for his fear. The fact that Valles-Estrada’s drug-delivery

                                              -7-
days included calling a person staying in Windsor, Colorado, not Gillette, Wyoming,

where his alleged drug source operates, suggests that he lied about his drug source’s

location. The absence of evidence in the appellate record that Valles-Estrada gave more

information about his drug source than he was a fair man named El Guero Lares

underscores the dearth of his disclosures. And the fact that the Government could not

find any evidence that Valles-Estrada’s alleged drug source exists is at least some

evidence against Valles-Estrada’s position.5

       Valles-Estrada’s speculations—for example, that “any telephone calls could have

been made from another cell phone or pay telephone,” aplt. reply br. at 4—are beside the

point. This is precisely the type of inference that the district court rejected based on the

evidence presented. Although it might not be unreasonable to make the inferences that

Valles-Estrada urges this Court to accept, the district court did not clearly err by

concluding as it did. Accordingly, we affirm the district court’s denial of Valles-

Estrada’s request for safety-valve relief.

                                                          Entered for the Court,


                                                          William J. Holloway, Jr.
                                                          Circuit Judge


       5
        Valles-Estrada claims that the Government’s failure to corroborate the existence
of his drug source is irrelevant, as the Government cannot locate Bin Laden or Jimmy
Hoffa even though it has been searching for them for several years. Aplt. Reply Br. at 4.
Valles-Estrada’s analogy is deficient, of course, for the questions here are whether a
particular person existed at all—not whether the Government can locate a person that it
knows exists—and whether the district court clearly erred by concluding, based on this
evidence and several other pieces of evidence, that Valles-Estrada withheld information.

                                             -8-
