FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 13, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11091

Non-Argument Calendar

________________________

D. C. Docket No. 04-00365-CR-T-24-TGW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

FABIAN GONZALEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(January 13, 2006)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
2

Fabian Gonzalez appeals his convictions and 120-month sentence for (1)

conspiracy to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), 846, and (2) attempt to possess with

intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A)(ii)(II), 846. Gonzalez contends that (1) the district erred in

denying a safety valve reduction; (2) the district court erred in applying a two-level

firearm enhancement; and (3) his sentence violates the Ex Post Facto Clause and

the Due Process Clause in light of United States v. Booker, 543 U.S. 220, 125 S.

Ct. 738 (2005).

First, we address Gonzalez’s argument that the district court erred in

denying a safety-valve reduction. We review for clear error the district court’s

factual determinations in its decision to deny safety valve relief. Johnson, 375

F.3d at 1301. The Sentencing Guidelines provide that if the defendant meets all

five criteria in U.S.S.G. § 5C1.2(a), he is entitled to a two-level safety-valve

decrease of his base offense level. U.S.S.G. § 2D1.1(b)(7). The defendant has the

burden of proving that he meets all five criteria for the safety valve reduction. 

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

criteria under Section 5C1.2(a) “not later than the time of the sentencing hearing,” 

the defendant must truthfully provide to the government all evidence and
3

information he has concerning the offense. U.S.S.G. § 5C1.2(a)(5); see also 18

U.S.C. § 3553(f)(1)-(5). Specifically, he has “an affirmative responsibility to

truthfully disclose to the government all information and evidence that he has

about the offense and all relevant conduct.” Johnson, 375 F.3d at 1302 (internal

citations omitted). This requirement is more than mere acceptance of

responsibility: it “is a ‘tell-all’ provision.” United States v. Yate, 176 F.3d 1309,

1310 (11th Cir. 1999). 

Gonzalez did not present any evidence to the district court to show he met

the criteria of the safety-valve reduction. Gonzalez contends that the court erred in

finding that he was not entitled to a safety-valve reduction, because the court did

not question Gonzalez to make a credibility determination and did not make a

factual finding about whether the information he had provided to law enforcement

was truthful. The district court did not clearly err in refusing to grant Gonzalez a

safety-valve reduction. He had the burden of demonstrating that he met the safetyvalve criteria, and he failed to present any evidence about the information he had

disclosed to the government. See Johnson, 375 F.3d at 1302. 

Although the government was not required to, it presented the testimony of

Agent Julio Lima, who stated that Gonzalez had not been truthful because he had

attempted to minimize his role in the offense and cast greater blame on his
4

codefendants. Gonzalez’s argument that the district court did not make a factual

finding as to whether Gonzalez had been truthful fails, because the court credited

the information Agent Lima provided to the court while implicitly rejecting

Gonzalez’s attorney’s unsubstantiated argument that Gonzalez had been truthful. 

Contrary to Gonzalez’s assertion, the district court is not required to question

defendants to test their credibility. Gonzalez could have chosen to testify at the

sentencing hearing or otherwise indicate that the facts as Agent Lima had presented

them were incorrect. He did not. 

Gonzalez next argues that the district court erred in applying a two-level

weapon enhancement. Anyone who violates 21 U.S.C. § 841(a) shall be sentenced

as follows: if the violation involved “5 kilograms or more of a mixture or

substance containing a detectable amount of [cocaine] . . . such person shall be

sentenced to a term of imprisonment which may not be less than 10 years or more

than life.” 21 U.S.C. § 841(b)(1)(A)(ii). 

Even if the district court erred in applying the two-level weapon

enhancement, the court was required to impose the 120-month mandatory

minimum sentence unless it found the safety valve applicable. See 21 U.S.C.

§ 841(b)(1)(A)(ii). We have already concluded that the court correctly denied

safety-valve relief. Thus, any potential error in attributing to Gonzalez the two-
5

level weapon enhancement was harmless. See Fed. R. Crim. P. 52(a) (stating that

“[a]ny error, defect, irregularity, or variance that does not affect substantial rights

must be disregarded”). 

Gonzalez’s third argument, that his sentence violates the Ex Post Facto

Clause and Due Process Clause in light of Booker, fails. We determined that

Gonzalez was correctly sentenced to the statutory minimum, and any argument

based on Booker does not change that fact. See United States v. Shelton, 400 F.3d

1325, 1333 n.10 (11th Cir. 2005) (explaining that district courts remain bound by

statutory minimum sentences despite Booker’s remedial holding that the

Sentencing Guidelines are merely advisory). 

Finally, neither Gonzalez nor the Government raises any issue regarding the

inconsistencies between the charges in the indictment to which Gonzalez pleaded

guilty and the charges that appear in the judgment. Nonetheless, we may sua

sponte raise the issue of clerical errors in the judgment and remand with

instructions that the district court correct those errors. See United States v.

Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (remanding with directions to the

district court to correct the clerical errors where the statute cited in the judgment

and commitment order was incorrect). “It is fundamental error for a court to enter

a judgment of conviction against a defendant who has not been charged, tried or
6

found guilty of the crime recited in the judgment.” United States v. Diaz, 190 F.3d

1247, 1252 (11th Cir. 1999).

The judgment entered by the district court against Gonzalez contains two

clerical errors. First, the judgment does not reference the substantive criminal

provision, 21 U.S.C. § 841(a)(1), which was contained in the indictment for Count

One. Second, the judgment incorrectly describes the nature of the offense for

Count Two as possession—instead of attempt to possess—with intent to distribute

five kilograms or more of cocaine. We vacate and remand the district court’s

judgment for the limited purpose of correcting these clerical errors.

AFFIRMED in part; VACATED in part AND REMANDED.