                                                                 [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                         FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                    JUNE 15, 2011
                                 No. 10-13419                        JOHN LEY
                             Non-Argument Calendar                     CLERK
                           ________________________

                     D.C. Docket No. 0:09-cr-60301-KAM-1

UNITED STATES OF AMERICA,

                                                    lllllllllllllllllllllPlaintiff-Appellee,

                                      versus

CRESTWELL PHILLIP MICKLEWHITE,

                                               lllllllllllllllllllllDefendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (June 15, 2011)

Before EDMONDSON, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

      Crestwell Micklewhite pleaded guilty to conspiracy to possess with the

intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§
841(b)(1)(A) and 846. He was sentenced to 60 months imprisonment, the

mandatory minimum sentence. He contends that the district court erred when it

denied him safety-valve relief under U.S.S.G. § 5C1.2(a) and 18 U.S.C. § 3553(f).

Specifically, he argues that the court erred when it found that his sentencing

testimony was untruthful and that it erred when it permitted hearsay testimony

during sentencing.1

                                                  I.

       In early October 2009, a confidential informant set up a drug deal to

purchase a kilogram of cocaine. Eventually it was determined that the CI would

meet with Eric Williams in a Lowe’s parking lot to make the exchange.2 On

October 8, 2009, the CI and Williams met in the Lowe’s parking lot. Williams

entered the CI’s car and the CI “flashed a roll of cash.” Williams told the CI that

he would be able to deliver the cocaine within an hour. Williams then left the CI’s

car and called Micklewhite, who possessed the cocaine.3 It was decided that

       1
        Micklewhite also argues that the district court violated his rights under the Confrontation
Clause of the Sixth Amendment by permitting that hearsay testimony to be introduced at sentencing.
He conceded, however, that “any panel of this Court is bound to reject [his] Confrontation Clause
argument.” See United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005) (“The right to
confrontation is not a sentencing right.”). We agree, and thus reject that argument. See id.
       2
        Two other people, Pedro Quintero and Wilbert Benoit, were also involved in the transaction,
but they are not discussed further in this opinion because they are not relevant to any of the issues.
       3
       It is not clear when Micklewhite came into possession of the cocaine. It is undisputed,
however, that Micklewhite had the cocaine and brought it to Williams.

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Micklewhite and Dennis Pierre, who had a loaded handgun containing 14 rounds

of ammunition, would bring the cocaine to a mall parking lot where the transaction

would be consummated.

      Micklewhite and Pierre drove to the mall and pulled up next to Williams’

car. Williams got out of his car, retrieved a black bag containing the cocaine from

Micklewhite’s car, and got back into his own car. Williams then drove his car to

the other side of the mall parking lot where the CI was waiting. Micklewhite

drove his car to the same area of the parking lot and parked near Williams’ car.

While Williams got into the CI’s vehicle with the cocaine, Micklewhite and Pierre

stayed in their car. The police then arrested them.

      Micklewhite was charged with possessing with the intent to distribute 500

grams or more of cocaine and conspiracy to possess with the intent to distribute

500 grams or more of cocaine. He pleaded guilty to the conspiracy charge, and the

possession charge was dropped. Micklewhite’s guidelines range was 46 to 57

months imprisonment. However, the mandatory minimum sentence for his crime

was 60 months imprisonment. Micklewhite argued that he was entitled to safety-

valve relief, which under certain circumstances permits the court to sentence a

defendant below the mandatory minimum. The government argued that

Micklewhite was not entitled to that relief because he had not truthfully provided

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the government with all the information concerning the offense. Specifically, the

government argued that Micklewhite did not fully divulge his involvement in the

transaction. His lack of candor included his claim that he was not acting as

surveillance for Williams while Williams was finalizing the sale with the CI and

that he was not compensated for his involvement in the drug deal.

      At the sentence hearing the court heard testimony on whether the

requirements for safety-valve relief had been met. First, Micklewhite testified

about the events of October 8, 2010. He said that day Williams had called him

and asked, “Can you do me a favor? Can you take this thing from me until I call

you when I’m ready?” Even though Micklewhite was unemployed and suspected

that this was a drug deal, he claimed that he agreed to do this “favor” for free.

Later that day Williams called him and said, “Okay, I’m ready. I brung [sic] the

stuff to the Broward mall.” According to Micklewhite, this was convenient

because he was already planning to go to the mall to buy some shoes.

Micklewhite then met Williams at a gas station to get the cocaine from Williams,

and he went to Pierre’s house to wait for Williams’ call.

      According to Micklewhite, shortly thereafter Williams called him to tell him

to come to the mall with the cocaine. Micklewhite said that he told Williams that

he did not want to be part of the deal, so they should meet on the “east side” of the

                                          4
mall. Micklewhite drove to that part of the mall and gave Williams the cocaine.

Williams then drove to another corner of the mall to meet with the CI. Even

though Micklewhite said that he wanted stay away from the drug deal, he claims

that he coincidentally drove to that same corner of the mall where the drug deal

was taking place because that area was closer to the shoe store he wanted to visit.

And although Micklewhite stated in his plea agreement that he “drove to the same

area . . . [and] parked in close proximity” to Williams’ and the drug deal,

Micklewhite testified at the sentence hearing that he did not even see Williams,

Williams’ car, or where the drug deal was occurring. Then, instead of getting out

of the car and going to the shoe store, Micklewhite claimed that he and

Pierre—who was carrying a loaded gun—coincidentally decided to stay in their

car for a while next to where the drug deal was taking place. According to

Micklewhite they were not acting as “surveillance,” but instead he wanted to

smoke a cigarette before going into the shoe store.

      John Loges, a police officer, testified next. Although he was not personally

at the crime scene, he spoke with the officers who were there and read their

reports. He testified that at first Micklewhite parked his car next to Williams’ car

in the northeast corner of the mall parking lot. After Williams’ retrieved a black

bag from Micklewhite’s car, Williams drove to a different part of the parking lot

                                          5
and far away from the entrance of the mall, which was where the CI was waiting.

Micklewhite immediately followed Williams’ car to the other part of the parking

lot and parked about 30 yards away. Officer Loges explained that even though

there were plenty of parking spots closer to the entrance of the mall, Micklewhite

parked near Williams’ car, which was several hundred yards from the entrance.

      The district court did not think that Micklewhite’s testimony made sense:

      He’s going to the mall to buy sneakers. Why don’t you smoke your
      cigarette right there and go into the mall? No, he drives the car, just so
      happens, to another parking area, just so happens to be right by where
      this deal is going down, and that’s where he decides to sit and smoke his
      cigarette and go into the mall. If you want to smoke your cigarette and
      go into the mall, you stay where you are after you deliver a package, you
      smoke your cigarette and go into the mall. You don’t drive to the same
      area where the drug deal is going down and then smoke your cigarette
      and then go into the mall. You see, it just doesn’t fit, doesn’t make
      sense.

      Micklewhite’s attorney responded by arguing that Micklewhite’s testimony

was so unbelievable that it must be believed: “It doesn’t make sense. I agree with

you it doesn’t make sense. . . ., which frankly is why it has to be truthful, because

it doesn’t make any sense.”

      The court disagreed. Focusing on Micklewhite’s own testimony, the court

denied Micklewhite’s request for safety valve-relief. It explained:

      I don’t believe his testimony about the surveillance. It doesn’t make any
      sense. He lied about it. He lied about not following the car, he lied

                                       6
      about how long—you know, why he parked there. That’s just not
      truthful. Why, I don’t know. It doesn’t make sense. But I think the
      reason . . . [h]e’s not admitting to things about this limited case and the
      limited facts in this case that would get him Safety Valve is because it
      leads to admissions about other activities that he wants to somehow
      protect himself from or not admit to.

Micklewhite appealed.
                                         III.

      “The question of whether the information [a defendant] supplied to the

government [at] his sentencing was truthful and complete [] is a factual finding for

the district court.” United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir.

2000). We review factual findings regarding safety-valve relief for clear error.

United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). We will not find

clear error unless the record leaves us “with the definite and firm conviction that a

mistake has been committed.” United States v. White, 335 F.3d 1314, 1319 (11th

Cir. 2003) (citation and quotation omitted).

      The safety-valve provision of U.S.S.G. § 5C1.2(a) enables sentencing

without regard to the statutory minimum for certain offenses if five criteria are

met. See United States v. Milkintas, 470 F.3d 1339, 1344–45 (11th Cir. 2006).

The only issue here is whether Micklewhite met the fifth criterion, which required

him to have “truthfully provided to the Government all information and evidence

[he] ha[d] concerning the offense . . . .” 18 U.S.C. § 3553(f)(5); U.S.S.G.

                                          7
§ 5C1.2(a)(5). The burden is on the defendant to show that he meets all the

criteria. United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004).

      Based on Micklewhite’s own nonsensical and incredible testimony, the

district court found that he did not meet his burden of proving that he truthfully

provided the government with all information related to his participation in the

drug deal. Micklewhite responded by arguing that he had met his burden because

“frankly . . . it has to be truthful, because it doesn’t make any sense.” That

argument, like the testimony it describes, does not make any sense. The district

court did not clearly err.

                                           IV.

       Micklewhite did not object to the district court’s decision to permit Loges’

hearsay testimony at the sentence hearing. If a defendant did “not raise [an]

argument before the district court, we review it only for plain error.” United

States v. Dudley, 463 F.3d 1221, 1227 (11th Cir. 2006). “Under plain error

review, there must be (1) an error, (2) that is plain, and (3) affects substantial

rights. When these three factors are met, [this Court] may exercise discretion and

correct the error if it seriously affects the fairness, integrity, or public reputation of

the judicial proceedings.” Id. (citation omitted).

      The district court did not err, much less plainly err, by admitting Loges’

                                            8
testimony. “A court may consider any information (including hearsay), regardless

of its admissibility at trial, [at sentencing] provided that the information is

sufficiently reliable.” United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir.

1999). The testimony of a police officer that is based on police reports and

discussions with other officers who were at the event is sufficiently reliable. And

even if the district court erred by admitting Loges testimony, that error did not

affect Micklewhite’s substantial rights because the court did not rely on that

testimony when it denied Micklewhite’s safety-valve relief. Instead, the court

denied that relief based on Micklewhite’s inconsistent and nonsensical testimony.

The district court did not plainly err.

      AFFIRMED.




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