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The Honorable Michael J. Davis, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2756

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Manuel Rodriquez-Sandoval, * [UNPUBLISHED]

*

Appellant. *

___________

Submitted: February 10, 2003

Filed: March 12, 2003

___________

Before WOLLMAN, RICHARD SHEPPARD ARNOLD, and MELLOY, Circuit

Judges.

___________

PER CURIAM.

Manuel Rodriquez-Sandoval pled guilty to possession with intent to distribute

and conspiracy to possess with intent to distribute in excess of one kilogram of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and 18 U.S.C. § 2.

After determining that Rodriquez was not entitled to a safety valve reduction pursuant

to U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), the district court1

 sentenced him to the
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statutory minimum sentence of sixty months. On appeal, Rodriquez contends that the

district court clearly erred in finding that he had not truthfully provided to the

government all information in his possession concerning the offenses. We affirm.

I.

On February 28, 2002, Rodriquez appeared for a proffer session with the

government. After discussing his background and admitting that he was an illegal

alien, Rodriquez discussed his role in the drug offense. He claimed he had never

previously sold drugs and that he did not know his supplier’s true name, address, or

phone number. Rodriquez claimed to have had a chance meeting in a Greely,

Colorado, bar with a man he knew only as “Javier.” Rodriquez did not know Javier’s

real name and could describe him only insofar as he was a Mexican in his thirties who

had a lot of money, dressed “cowboy style,” and drove nice vehicles including a black

Tahoe, a burgundy Navigator, and a white Mustang. Rodriquez said he realized

Javier was a drug dealer when, after mentioning his own money troubles, Javier told

him “there was an easy way to get money.”

Rodriquez stated that he had visited Minnesota on December 12, 2001, and

returned to Colorado for Christmas. Rodriquez claimed that Javier offered him

$5,000 to sell one kilogram of cocaine during his trip to Minnesota on January 2,

2002. Rodriquez said he did not give Javier any money for the cocaine and that

Javier had not called him in Minnesota to inquire into his progress. Rodriquez

claimed not to know anyone in Minnesota or Colorado who sold drugs besides Javier.

He further stated that he traveled to Minnesota without any idea to whom he would

sell the cocaine and arrived at 14th and East Lake Street, a notorious drug

neighborhood, by coincidence. Rodriquez claimed that he tried to sell the cocaine in

that neighborhood because it appeared to him that many Mexicans lived there.
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II.

Each of the charges to which Rodriquez pled guilty carries a statutory

minimum sentence of five years. 21 U.S.C. § 841(b)(1)(B). If the district court finds

that the defendant meets the five criteria set out in 18 U.S.C. § 3553(f), however, the

defendant must be sentenced according to the sentencing guidelines without regard

to the statutory minimum. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. We review for

clear error the district court’s findings regarding the application of the safety valve

provisions of § 3553(f). United States v. Tournier, 171 F.3d 645, 647 (8th Cir. 1999).

A defendant seeking safety valve relief bears the burden to show that each condition

of § 3553(f) has been satisfied. Wright v. United States, 113 F.3d 133, 134 (8th Cir.

1997).

There is no dispute that Rodriquez satisfied the first four elements of § 3553(f).

The fifth element requires 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 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.

The district court found that Rodriquez had not provided the government with

complete and truthful information at his proffer session or at any other time before

the sentencing hearing.

Relying primarily on United States v. Kang, Rodriquez contends that the

government may not simply argue that the information he provided is not credible,

but rather it must provide evidence that he was not truthful. 143 F.3d 379, 383 (8th

Cir. 1998) (“The government cannot by its mere ipse dixit establish that defendant

has been untruthful. The issue requires evidence . . . .”). Kang pled guilty to

possession of 6.84 grams of crack cocaine with intent to distribute. Id. at 380. At

sentencing, the government argued that Kang had distributed between 50 and 150

grams. Id. at 381. Incorrectly believing that Kang had stipulated to that amount, the
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government presented no evidence to that effect. Id. at 382. Without any evidence

to contradict Kang’s statement, we held that the district court erred in finding Kang

untruthful, and thus we remanded for resentencing. Id. at 383.

Kang is inapposite for two reasons. First, the government did present evidence

tending to show that Rodriquez was not completely truthful in stating that his arrival

in the area of 14th and East Lake Street was by chance. Agent Tony Adams of the

Drug Enforcement Administration testified at the sentencing hearing that an

informant notified the Minneapolis Police Narcotics Unit about a quantity of cocaine

coming to Minneapolis in a white pickup truck bearing out-of-state plates. The

informant indicated that he would meet the person with the cocaine in the area of 14th

and East Lake Street. On January 8, 2002, a police surveillance team identified

Rodriquez in a white pickup truck. Rodriquez was arrested the next day when he

returned to the neighborhood with the cocaine in his pickup truck. Agent Adams’s

testimony regarding the informant directly contradicts Rodriquez’s statements that he

was not familiar with Minneapolis and did not know to whom he would sell the

cocaine.

Second, the information provided by Rodriquez is incredible on its face. No

additional evidence is needed to support a finding that Rodriquez was not completely

truthful. Rodriquez claimed that although he had never sold drugs before, he was

given $25,000 worth of cocaine on credit by a man he met by chance in a Colorado

bar. Although he referred to his supplier as Javier, Rodriquez claimed not to know

his name or to have any contact information for him. Rodriquez further stated that

Javier gave him general instructions to sell the cocaine in Minnesota but provided

him with no contacts in the area. We agree with the district court that “there are

things that the defendant has said that [do not] make sense.” Rodriquez’s failure

truthfully to provide all information he possessed about the circumstances

surrounding his drug offenses precludes application of safety valve relief in his case.
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The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.