# U nit edSta tes C ou rt o f A pp eal s For t h e Firs t C ircu it

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No. 06-2176 UNITED STATES OF AMERICA, Appellee,

v. JUAN C. RODRIGUEZ-FERREIRA, Defendant-Appellant.

_____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

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Before Lipez, Circuit Judge, Selya, Senior Circuit Judge, and Howard, Circuit Judge.

Matthew M. Robinson and R o b i nson & Brandt, P.S.C. on brief, for appellant. Nelson Perez-Sosa, Assistant United States Attorney, and Rosa Emilia Rodriguez-Velez, United States Attorney, on brief for appellee.

June 30, 2008-2- Howard, Ci r c uit Judge . Pursuant to a written plea agreement, Juan C. Rodriguez-Ferreira (Rodriguez) pleaded guilty to a two count indictment for conspiring to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and to possession with intent
t o distribute approximately thirty kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). The agreement stipulated various se n t e ncing base level reductions so long as Rodriguez met all the safety valve requirements under the sentencing guidelines. See U.S.S.G. § 5C1.2(a). At the change of plea hearing Rodriguez was informed, and he acknowledged, that he could not be sentenced below the mandatory minimum sentence of 120 months unless h e satisfied the five requirements of § 5C1.2(a). It is uncontested that Rodriguez s a t i sfied four of the five safety valve requirements. The government contends, and the di s t rict court agreed, that Rodriguez did not fulfill the fifth

re q u i r e m e n t u n d e r 5 C 1
. 2 ( a ) , a n dt h u s R o d r i g u e z d i dn o t f u l fill his obligations under the plea agreement. The court imposed a 120 months’ sentence on July 1 5 , 2 003. Rodriguez appeals,

r a i sing "the lone question of whether the district court incorrectly determined that Rodrigu e z [ ] did not satisfy each of-3-

the factors under 18 U.S
. C . § 3 5 5 3(f) and U.S.S.G. § 5C1.2, the 'safety valve.'" I. SAFETY VALVE

U.S.S.G. § 5C1.2(a) provides in part: [T]he court shall impose a sentence in accorda n c e w ith the applicable guidelines without regard to any statu t ory minimum sentence, if the court fi n d s that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below: (1)... (5) not later than the time of the senten c i n ghearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offe n s e s that were part of the same course of conduct or of a common scheme or plan, but the fact that the def e n dant has no relevant or u s e f ul other information to provide or that the Government is al r e a d y aware of the information shall not preclude a determination by t h e court that the defendant has complied with this requirement. Emphasis added.

We focus on the requireme nt that Rodriguez was truthfully to provide all of the information and evidence he had concerning the offense or offenses not later than the time of the sentencing hearing. II. STANDARD OF REVIEW

We review the sentencing court's factual findings supporting the a d v erse determination of safety valve eligibility for clear error. United States v. Marquez, 280 F.3d 19, 22 (lst Cir. 2002). Our review is thus deferential. Id. at 2 6
. "[A]n appellate court ought not to disturb either findings of fact or-4-

conclusions drawn there from unless the whole of the record compels a strong, unyielding belief that a mistake has been made." United States v. Matos, 328 F.3d 34, 40 (1st Cir. 2003). The district court’s determination of an issue of statutory interpretation is reviewed de novo. Marquez, 280 F.3d at 22. III. BURDEN OF PROOF

R o d r i g u e z b e a r s t h e b u r d e n o f s h o w i n g t h a t h e made appropriate and timely disclosures to the government. Id. at 25; United States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000). This burden obliges Rodriguez to prove that the information he supplied in the rele v a nt time frame was both truthful and complete. Marquez, 280 F.3d at 25. "[A] safety valve debriefing is a situation that cries out for strai g h t talk; equivocations, half-truths, and veiled allusions will not do." Matos, 328 F.3d at 39. "Nothing short of truthful and complete disclosure will suffice [] and, therefore, [] truthful and complete disclosure is a condition precedent to relief under the safety valve." Id. "Full disclosure is the price that Congress has attached to relief under the [safety valve] statute." United States v. Montanez, 82 F.3d 520, 523 (lst Cir. 1996). IV. HEARINGS

The government debriefed Rodriguez. Finding his disclosures lacking, the government filed a notice with the court-5-

that Rodriguez had not complied with § 5C1.2(a). Rodriguez asked the govern m e n t t o d e t a i l t h e s p e c i f i c a r e a s i n w h i c h h e w a s n ot truthful or complete. The court held a hearing on Rodriguez’s compliance on October 11, 2002. To assist it in deciding whether or not Rodriguez w a s compliant, the court requested memoranda on the arguments and case law. Subsequently, the court entered an order denying Rodrigue z ' s r equest for a second debriefing. But, in light of the deadline established by § 5C1.2(a), the court also allowed Rodriguez to submit a writing in compliance by February 12, 2003. A hearing would then be schedul e d , a t w h ich the government would be allowed to g i v e voice to its position on Rodriguez’s compliance with the safety valve requirement based on his written statement.

The originally scheduled April 1, 2003, sentencing hearing was called but was converted into an e v i d e n tiary hearing on Rodriguez’s safety valve compliance. The court questioned Rodriguez directly. The government, having acquired R o driguez’s written statement shortly before the hearin g , m a intained its
p o s i t i o n t h a t R o d r i g u e z h a dn o t p r o v i d e da t r u t h f u l a n dc omplete statement regarding his criminal offense. Distilled to its

e s s e n ce, the government had evidence – pilot's logs - indicating Rodriguez's involvement with approximately 19 flights importing contraband. Rodriguez had maintained his involvement was limited-6-

to four or five flights, "more or less." The government also had a notarized statement from co-defend a n t Domingo Garcia that indicated Rodriguez was involved in t h e importation of some 290 kilograms of cocaine. The court asked the government to provide copies of the pi l o t ' s logs that the government maintained proved Rodriguez was not forthcoming. On April 8, 2003, the government submitted the logs, Garcia's statement, and other evidence.

By order da t e d J une 11, 2003, the district court found Rodriguez had failed to satisfy the fift h requirement of the safety valve provisions and was ineligible for sentencing below the statutory minimum. Th e sentencing hearing was called again

o n J u l y 2 , 2003, but was continued until July 15 at Rodriguez's request. Just prior to the final hearing, Rodriguez filed a statement in which he confirmed that the pilot log entries were accurate. His written statement also acknowledged that he had engaged in severa l t ransactions with co-defendant Domingo Garcia inv o l v i n g a p p r o x i m a t e l y2 9 0 k i l o g r a m s o f c o c a i n e . R o d r iguez insists that these a dmissions fulfilled his obligations under section 5C1.2(a). The district court was less than impressed, noting that Rodriguez "had ample opportuni t y b efore the sentencing hearing to disclos e i n f ormation that he had on the offense, in a timely manner...[a]nd t h i s handwritten statement-7-

file[d] 20 minutes ago or 25 minutes ago is not a ti mely disclosure...." V. DISCUSSION

Rodriguez avers that h e i s entitled to another bite of the apple, because under the express language of 5C1.2(a) he need only provide a complete and truthful debriefing by the time of the sentencing hearing. The argument fails on two grounds. First, it ignores the f a c t that Rodriguez did not provide complete disclosure by the t i me of the sentencing hearing. Second, the safety valv e p rovisions cannot mean that the district court must let a defendant nibble at the apple so as to frustrate the imposition of a sentence as justice demands. We briefly explain. Rodriguez was debriefed on April 26, 2002. On February 10, 2003, Rodriguez filed additional statements clarifying his debriefing statements. The first sentenc ing hearing was scheduled for and held on April 1, 2003. As far as Rodriguez knew, he would be sentenced at that time. During the course of that hearing, Rodriguez was directly examined by the court. The following exchange took place concerning the declaration filed on February 10, 2003:

THE COURT: What i s stated there, is that all you know concerning this offense or any other scheme related to the offense that you were charged with?-8- DEFENDANT RODRIGUEZ: This is everything I know about this crime, your honor. Virt u a l l y everything I know has been specified here.
Ba s ed on the government's contrary evidence the district court denied the safety valve. In due course, sentencing was set to proceed further on July 2, 2003, and then again c o n t i n u e d to July 15, 2003. Shortly before the July 15 sentencing hearing was convened, Rodriguez fi l e d a statement acknowledging as true both the dr a matically different statements of a co-conspirator, as well as the veracity of the pilot logs. Thus, twice after the initial sentencing hearing commen c ed, and after stating under oath that he had disclosed all he knew, Rodriguez provided new information and detail.

Even taking the language of 5C1.2(a) on the terms Rodriguez urges -– that the district court was required to accept debriefing information u p to the time the sentencing hearing began -- Rodriguez nevertheless plainly had not p r o v ided a complete and truthful disclosure, and he thus defaulted on his obligation under the pl e a a g reement. The district court clearly indicated, and the record clearly reflects, that the sentencing hearing began April 1, 2003. During the course of that hearing – afte r t he sentencing hearing began – Rodriguez proffered new information. A g a in during the July 3, 2003 hearing Rodriguez attempte d to maneuver into a new position, faced with the-9-

information provided by the government. Fin a l l y, mere minutes before the J u l y 15, 2003 continued sentencing hearing began, Rodriguez yet again proffered new information. Having materially amended his s t atement three times after the commencement of the sentencing hearing, it is all too obvious that Rodriguez had not been forthright.

In Matos, we held that the deadline for making truthful and complete disclosure is the moment that the sentencing hearing
starts. Mato s , 3 2 8 F . 3d. 39. See also, United States v. Marin, 144 F.3d. 1085, 1091-92 (7th Cir. 1998); United States v. Long, 77 F.3d 1060, 1 0 62 (8th Cir. 1996)(Per Curiam). Rodriguez's three day s e n t e n cing hearing began April 1, 2003, but even charitably viewing the hearing as commencin g a t a later date, Rodriguez’s statements throughout his interactions with the court and with the government were, up until the very last moment, equivocations and half-truths. That the opportunity to provide information pursua n t to the safety valve provisions may become foreclosed at the start of the sentencing hearing does not mean that the defendant gets to withhold ma t e r ial information until that moment. The o b l igation to provide truthful and complete information was a continuing one throughout the debriefing
process.-10-

Where, as here, a defendant puts the g overnment on a starvation diet - providing morsels of information when the defendant is presented with the truth

– h e i s engaged in artful manipulation, not complete and truthful discl o s u re. Rodriguez’s conduct does not come close to timely straight talk. The sentence imposed by the district court is affirmed.