[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 97-2787

Non-Argument Calendar

 

D. C. Docket No. 96-183-Cr-ORL-18

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD CAPTRIC REID,

a.k.a. Bigum,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Middle District of Florida

 

(April 29, 1998)

Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.
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PER CURIAM:

Appellant pled guilty in the district court to a multi-count indictment that charged him

with narcotics and money laundering offenses. He appeals his sentences, contending (1) that the

district court, in determining his offense levels under the Sentencing Guidelines, failed to apply

the safety-valve provision of U.S.S.G. § 5C1.2, as required by U.S.S.G. § 2D1.1 (b) (6), and (2)

that the court should have departed downward from the guideline range in imposing his

sentences. He therefore asks that his sentences be vacated and the case remanded for

resentencing. We begin with appellant’s second point. 

Appellant contends that he is entitled to a downward departure because the Immigration

and Naturalization Service has notified him that he will be deported upon his release from

prison, and a downward departure would save taxpayers’ money. We do not review a district

court’s refusal to make a downward departure unless the court, in entertaining a defendant’s

request for a departure, indicates that it lacks the authority to depart. Nothing in this record

indicates that the court thought that it lacked such authority; hence, appellant’s second point is

meritless. 

Appellant’s first issue, however, is another matter. The guidelines direct the district

court to decrease a defendant’s offense level by two levels if the offense level is greater than 26

and the defendant meets the criteria set forth in § 5C1.2. U.S.S.G. § 2D1.1 (b) (6). Section

5C1.2 applies if (1) the defendant does not have more than one “criminal history point,” (2) “the

defendant did not use violence or credible threats of violence or possess a firearm or other

dangerous weapon (or induce another participant to do so) in connection with the offense,” (3)

“the offense did not result in the death of or serious bodily injury to any person,” (4) “the
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defendant was not an organizer, leader, manager or supervisor of others in the offense, as

determined under the sentencing guidelines[,] and was not engaged in a continuing criminal

enterprise, as defined in 21 U.S.C. § 848,” and (5) “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. . . . [T]he 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

requirement.” The burden is on the defendant, of course, to establish these criteria. United

States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997).

We cannot engage in meaningful appellate review of a sentence unless the district court

sets out the facts underpinning the guidelines it applied in fashioning the defendant’s sentence or

the record plainly establishes such facts. In deciding not to apply § 5C1.2 in this case, the

district court, without hearing argument of counsel on the issue, stated only that it did “not feel

the safety-valve applies in this case.” Other than this brief comment, nothing in the record tells

us

why the court concluded that the appellant did not qualify for a § 5C1.2 reduction. Furthermore,

the evidence in the record does not clearly establish that he did not qualify. For example, the

appellant has but one criminal history point; there is no indication that he made threats of

violence or used a firearm in committing the offenses (although a firearm was found during the

search of appellant’s apartment); there is no indication that anyone was injured as a result of the

offenses; and the Government did not establish that appellant was a leader or organizer of the
criminal activity. Finally, in acknowledging that appellant had provided information to the

authorities, the court did not determine whether he provided all of the information that he

possessed concerning the criminal activity. 

In sum, the lack of findings -- explicit or implicit -- on these issues precludes meaningful

appellate review of the safety-valve issue. We therefore vacate appellant’s sentences and

remand the case for further proceedings not inconsistent herewith.

VACATED and REMANDED.