[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-11106 

Non-Argument Calendar

________________________

D.C. Docket No. 8:11-cr-00372-JDW-AEP-3

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

ALVIN MARTINEZ, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(February 5, 2013)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM: 

Alvin Martinez pled guilty to both counts of a two-count indictment 

charging him (and four others) in Count One with conspiracy to possess with intent 

Case: 12-11106 Date Filed: 02/05/2013 Page: 1 of 4 
2

to distribute five kilograms or more of a mixture and substance containing cocaine 

on board a vessel subject to the jurisdiction of the United States and, in Count Two 

with possession with intent to distribute the same on board a vessel subject to the 

jurisdiction of the United States. And the District Court sentenced him to 

concurrent prison terms of 210 months, at the low end of the guideline sentence 

range of 210 to 262 months’ confinement. Martinez now appeals his sentences. 

Martinez’s appeal presents one issue: Whether the District Court erred by 

denying him safety-valve relief under U.S.S.G. § 5C1.2(a). He argues that the 

Government failed to present independent and objective proof that he withheld 

information or lied during his proffer on pleading guilty. He further asserts that he 

told the truth and disclosed all relevant information prior to the sentencing hearing, 

and that he cannot be punished for failing to answer questions that he was not 

asked by the Government during his proffer interview.

In reviewing the denial of safety-valve relief, we review the district court’s 

factual determination of the truthfulness and completeness of a defendant’s proffer 

for clear error. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004); 

United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000). The Sentencing 

Guidelines direct the court to impose a sentence within the applicable guideline 

sentence range without regard to any mandatory minimum when a defendant 

satisfies five criteria. U.S.S.G. § 5C1.2(a). The criterion relevant here is that the 

Case: 12-11106 Date Filed: 02/05/2013 Page: 2 of 4 
3

defendant truthfully proffer, at a time no later than the sentencing hearing, all 

information that he has regarding his offense. Id. § 5C1.2(a)(5). If a defendant 

convicted of a controlled substance offense satisfies the U.S.S.G. § 5C1.2(a) 

criteria, he receives a two-level decrease in his offense level. Id. § 2D1.1(b)(16). 

The defendant has an affirmative responsibility to make a truthful and complete 

disclosure about the offense and all relevant conduct, and bears the burden of 

showing that he fulfilled this requirement. Johnson, 375 F.3d at 1302. The 

Government is under no obligation to solicit information from a defendant who 

seeks to qualify for safety-valve relief. United States v. Milkintas, 470 F.3d 1339, 

1345-46 (11th Cir. 2006).

When a defendant lies or fails to proffer the whole truth, this does not 

preclude safety-valve relief if he gives a truthful and complete proffer “not later 

than the commencement of the sentencing hearing.” Brownlee, 204 F.3d at 1305. 

In United States v. Garcia, 405 F.3d 1260, 1274-75 (11th Cir. 2005), we elaborated 

that the temporal element discussed in Brownlee is not binding, because the 

defendant in Brownlee gave his proffer prior to the commencement of sentencing. 

In Garcia, we held that the district court has discretion to continue a sentencing 

hearing to allow a defendant to make the necessary proffer, even where the motion 

to continue is made at the hearing. Garcia, 405 F.3d at 1275. In the typical case, 

though, the proffer should be made before the commencement of the sentencing 

Case: 12-11106 Date Filed: 02/05/2013 Page: 3 of 4 
4

hearing. Id. (noting that the situation in the case was atypical because the 

defendant did not speak English; the initial proffer interview was conducted 

without an independent translator; the defendant’s counsel believed that the 

defendant had already made a sufficient proffer; and there was no evidence that the 

defendant’s failure to give a full proffer prior to sentencing was done in bad faith).

We conclude that the District Court did not commit clear error in finding 

that Martinez’s proffer was untruthful and incomplete. Hence, the court did not err 

in denying Martinez’s request for safety-valve relief. 

AFFIRMED.

Case: 12-11106 Date Filed: 02/05/2013 Page: 4 of 4