United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 02-1549

__________

United States of America, *

*

Plaintiff - Appellee, *

* 

v. * 

* 

Cesar Alarcon-Garcia, *

*

Defendant - Appellant. *

__________

Appeals from the United States

No. 02-1648 District Court for the

__________ District of Minnesota.

United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Daniel Bueno-Gardea, also known as *

Abel Hidalgo-Escarcega, *

*

Defendant - Appellant. *

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Submitted: December 11, 2002

Filed: April 28, 2003
1

According to Bueno-Gardea's presentence report, his true name is Abel

Hidalgo-Escarcega. Since he was charged, convicted, and filed his appeal under the

name Daniel Bueno-Gardea, we will refer to him by this name throughout this

opinion.

2

The Honorable David S. Doty, United States District Judge for the District of

Minnesota. 

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___________

Before McMILLIAN, JOHN R. GIBSON, and BYE, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Cesar Alarcon-Garcia and Daniel Bueno-Gardea1

 pleaded guilty to charges of

conspiracy to distribute marijuana and possession of marijuana with intent to

distribute. Since the amount of marijuana charged in the conspiracy exceeded one

thousand kilograms, the district court2

 imposed a mandatory minimum sentence of ten

years on each defendant. On appeal, Alarcon-Garcia and Bueno-Gardea both claim

that the district court erred by not finding that they were entitled to the "safety valve"

exception to these mandatory minimum sentences, which would have allowed the

court to sentence them according to their sentencing guideline range. We affirm. 

I. 

On May 22, 2001, DEA agents executed a search warrant at a house on 3608

Morgan Avenue North in Minneapolis, Minnesota. At this house, the agents

encountered three individuals: the defendants, Bueno-Gardea and Alarcon-Garcia,

and a third person named David Armandariz-Chavez. In the course of their search

of the house, the agents discovered and seized approximately 1,652 pounds of

marijuana, mostly wrapped in four pound "bricks," and $76,000 in cash, along with

two scales and a large quantity of discarded wrapping materials identical to the
3

The quantity of marijuana in the conspiracy charge was calculated using the

marijuana found in the house as well as an estimate of the marijuana already sold

from this location. The estimate was based on the 408 empty wrappers found in the

house. These wrappers were identical to the wrappers that wrapped the four pound

"bricks" of marijuana that were seized during the search. 

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packaging that encased the marijuana. They also found several notebooks that

documented numerous marijuana sales and recorded proceeds from these sales in

excess of one million dollars. Bueno-Gardea, Alarcon-Garcia, and ArmandarizChavez were charged with conspiracy to distribute and possess with intent to

distribute more than one thousand kilograms of marijuana3

 under 21 U.S.C. §§ 846

and 841(b)(1)(A) (2000) as well as possession with intent to distribute 1,650 pounds

of marijuana under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (2000). ArmandarizChavez was tried separately from the defendants and convicted of both counts. Both

Bueno-Gardea and Alarcon-Garcia pleaded guilty to both counts without entering

into a plea agreement with the government. The guideline range for both defendants,

based on the calculations in their presentence reports, was 87 to 108 months.

However, their conviction for the conspiracy to distribute more than one thousand

kilograms of marijuana called for a ten year mandatory minimum sentence. See 21

U.S.C. § 841(b)(1)(A). 

In order to avoid this minimum sentence and receive a sentence within the

guideline range, Bueno-Gardea agreed to an interview with the government in which

he would disclose information necessary to qualify for the safety valve under 18

U.S.C. § 3553(f) (2000) and Sentencing Guideline § 5C1.2. The information

disclosed by Bueno-Gardea in this interview was summarized in a letter written by

the prosecutor to the district court, in which the prosecutor urged the court not to

grant safety valve relief because he believed Bueno-Gardea had not completely and

truthfully disclosed all of the information concerning his crime. At sentencing, the

judge agreed with the prosecutor that Bueno-Gardea's disclosure was not complete

and truthful and refused to grant him safety valve relief. Consequently, Bueno-
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Gardea was sentenced to 120 months pursuant to the mandatory minimum set forth

in § 841(b)(1)(A). Alarcon-Garcia, on the other hand, refused to be interviewed. At

sentencing, he conceded that as a result he did not qualify for the safety valve, and

likewise received the 120 month mandatory minimum sentence. Both defendants

appeal these sentences. 

II.

The safety valve provision in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 allows

the district court to apply the guideline range in lieu of a mandatory minimum

sentence prescribed by statute if the defendant satisfies five conditions. The first four

conditions, which do not concern us in this case, address the criminal history of the

defendant and the nature of the instant crime. At issue in this case is whether the

defendants have satisfied the fifth condition, which requires a defendant to truthfully

provide 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" no later than the time of sentencing. 18 U.S.C. §

3553(f)(5). Although the safety valve requires the defendant to completely disclose

all information relating to the crime, "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 requirement." Id.

Bueno-Gardea argues that the district court erred by finding that he did not

make the complete and truthful disclosure necessary to receive the benefit of the

safety valve. We review the district court's finding that Bueno-Gardea did not meet

the requirements of § 3553(f) for clear error. United States v. Romo, 81 F.3d 84, 86

(8th Cir. 1996). 
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The district court's decision was based on Bueno-Gardea's proffer interview

with the government as summarized in the prosecutor's letter to the court. At

sentencing Bueno-Gardea conceded that his counsel was present at this interview and

the letter accurately and completely described his admissions. In order to obtain the

benefit of the safety valve, Bueno-Gardea bears the burden of showing that he gave

the government truthful information about his crime at this interview. See Romo, 81

F.3d at 85-86. 

We conclude that the district court did not clearly err in finding that BuenoGardea did not meet this burden. Bueno-Gardea was required to disclose the

identities and participation of others involved in the crime. United States v. Morones,

181 F.3d 888, 890 (8th Cir. 1999). Bueno-Gardea claimed he knew David

Armandariz-Chavez, and the latter was also present at 3608 Morgan with BuenoGardea at the time of their arrests. Nevertheless, Bueno-Gardea never implicated

David Armandariz-Chavez in the sale of marijuana from the house at 3608 Morgan.

Rather, he claimed that the only people involved in the sale of marijuana from this

location were himself, his co-defendant Alarcon-Garcia, and a third individual named

Miguel Ortega, whom Bueno-Gardea maintained was a different person from

Armandariz-Chavez. As the prosecutor pointed out, the district court had recently

presided over the trial at which Armandariz-Chavez was convicted of both the

conspiracy and the possession charges. The district court was permitted to consider

this evidence in evaluating the credibility of Bueno-Gardea's claim that he was not

aware of Armandariz-Chavez's involvement in the conspiracy to distribute marijuana.

See United States v. Velasquez, 141 F.3d 1280, 1283 (8th Cir. 1998). Based on the

facts that Armandariz-Chavez had been convicted for his participation in the

conspiracy and Bueno-Gardea and Armandariz-Chavez were both found at 3608

Morgan at the time of the search, the district court could conclude that Bueno-Gardea

was in fact aware of Armandariz-Chavez's role in the conspiracy and doubt the

truthfulness of Bueno-Gardea's proffer to the government. 
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Furthermore, Bueno-Gardea stated in his interview that Miguel Ortega was

solely responsible for all the marijuana sales conducted out of 3608 Morgan. BuenoGardea also claimed that Ortega had allegedly left Minnesota for Mexico eight days

before Bueno-Gardea and Alarcon-Garcia were arrested. However, the record of

marijuana sales found at 3608 Morgan revealed that some sales had been conducted

after the time Ortega allegedly left and before the arrests, clearly contradicting either

Bueno-Gardea's statement that Ortega was solely responsible for drug sales or that

Ortega had fled Minnesota. Considering this evidence that Bueno-Gardea

misrepresented important facts in his safety valve proffer, the district court did not

clearly err in finding that Bueno-Gardea's disclosure was not complete and truthful

as required by § 3553(f) and § 5C1.2. 

III.

Defendant Alarcon-Garcia likewise argues that the district court erred in not

finding him entitled to the safety valve. Unlike his codefendant, Alarcon-Garcia

never submitted to an interview with the government to make the disclosure required

by the safety valve provision. At sentencing, he conceded that since he did not make

a proffer, he was not entitled to safety valve relief. Now, on appeal, he claims for the

first time that his disclosure of information relating to his crime at the hearing on his

guilty plea sufficed to fulfill the requirements for the application of the safety valve,

and that the district court erred in not granting him relief under this provision at

sentencing. Since he raises this claim for the first time on appeal, we review it only

for plain error. Fed R. Crim. P. 52(b); United States v. Rios, 171 F.3d 565, 567 (8th

Cir. 1999). 

We conclude that the district court did not commit plain error by finding that

Alarcon-Garcia did not qualify for the safety valve. Alarcon-Garcia correctly points

out that neither § 3553(f) nor § 5C1.2 specifies a particular form, place, or manner for

the disclosure required of a defendant seeking the benefit of the safety valve. United
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States v. Dukes, 147 F.3d 1033, 1035 (8th Cir. 1998). Therefore, a defendant seeking

safety valve relief is not obliged to submit to an interview with the government or

make a formal safety valve proffer. Nevertheless, "a defendant who declines to offer

himself for a debriefing takes a very dangerous course" because he ultimately bears

the burden of persuading the district court that he has made a complete, truthful

disclosure to the government. United States v. Montanez, 82 F.3d 520, 523 (1st Cir.

1996). The record shows that Alarcon-Garcia's disclosure of the basic facts of his

crime did not meet this burden. He disclosed little more than the circumstances of the

seizure of drugs from his house, the quantity of drugs in his possession, and his

knowledge that he was a participant in a conspiracy to distribute these drugs.

However, as we noted above, § 3553(f) and § 5C1.2 require the defendant to disclose

the identities and participation of others involved in the crime. Morones, 181 F.3d

at 890. Alarcon-Garcia did not disclose any information concerning the identity of

his co-conspirators or the source of the supply of drugs involved in the operation at

3608 Morgan, information which the government and the district court could have

reasonably expected him to have. Therefore, the district court did not commit plain

error by refusing to grant him a safety valve reduction on the basis of his disclosure

at the plea hearing.

We affirm the sentences imposed by the district court on Bueno-Gardea and

Alarcon-Garcia. 

A true copy.

Attest:

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