PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-4752

FRANK AIDOO,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson Everett Legg, District Judge.

(1:09-cr-00168-BEL-1)

Argued: October 27, 2011

Decided: February 29, 2012

Before TRAXLER, Chief Judge, and GREGORY and

KEENAN, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the

majority opinion, in which Judge Keenan joined. Judge Gregory wrote a dissenting opinion.

COUNSEL

ARGUED: Brendan Abell Hurson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for

Appellant. Mushtaq Zakir Gunja, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.

ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United

States Attorney, Robert R. Harding, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Baltimore, Maryland, for Appellee. 

OPINION

TRAXLER, Chief Judge:

Frank Aidoo pleaded guilty to unlawful importation of heroin in violation of 21 U.S.C. § 952(a). At sentencing, the district court concluded that Aidoo had not been truthful and

therefore was not eligible for sentencing under the "safety

valve" exception to the otherwise-applicable statutory minimum sentence. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a).

The court sentenced Aidoo to 60 months’ imprisonment, the

minimum sentence permitted under the statute. Aidoo

appeals, and we affirm.

I.

Customs officials had intelligence suggesting that Aidoo, a

native and resident of Ghana and a citizen of the Netherlands,

was involved in drug smuggling. After learning that Aidoo

had paid cash for a ticket just a few days before he boarded

a flight from Ghana, the officers stopped Aidoo when he

landed at Baltimore-Washington International Airport on

March 27, 2009. Aidoo initially told the officers that he was

in the United States to visit his nephew "Evans Twum," the

name listed on Aidoo’s customs declaration form. When the

officers called Twum at the number provided by Aidoo, the

person answering the phone seemed very nervous and hung

up. The officers called back, and the person answering the

phone identified himself as Michael Jackson and again hung

2 UNITED STATES v. AIDOO
up. Aidoo finally admitted that he had ingested heroin, and he

eventually passed pellets containing 998.4 grams of heroin.

He was indicted on one count of importing heroin and one

count of possession with intent to distribute heroin. Hoping to

qualify for sentencing under the safety valve, Aidoo met with

the government in a proffer session. Aidoo told the government that this incident was the first time he had ever smuggled heroin and that he had been paid $10,000 by a man

Aidoo could identify only as "Kofi." Aidoo did not say who

his contact in the United States was to be, and he identified

no one in the United States as being involved in the scheme.

J.A. 32-33, 130-31. Although Aidoo had provided a phone

number for Evans Twum when he was arrested, he refused to

implicate Twum in the smuggling. The government showed

Aidoo his passport, with dozens of stamps showing numerous

trips out of Ghana, and told Aidoo that the passport appeared

to be that of an international drug smuggler. Aidoo explained

that he traveled to Europe and the United States to buy clothes

at outdoor bazaars and department stores. Aidoo said he

brought the clothes back in his suitcase and then resold the

clothes in Ghana. J.A. 31-32, 55. The government informed

Aidoo at the proffer session that it did not believe he was

being truthful and that he did not meet the requirements of the

safety valve. 

Aidoo eventually pleaded guilty to a single count of

importing heroin. The plea agreement included a stipulation

to facts that the government "would prove beyond a reasonable doubt," J.A. 23, including a statement that "[i]ntelligence

obtained [by Customs officials] showed that Aidoo had been

involved in heroin smuggling activities. Aidoo had traveled to

an address in New York utilized by Nigerian heroin smugglers who were apprehended at John F. Kennedy Airport and

in Boston." J.A. 24. The plea agreement noted the government’s opposition to application of the safety valve but preserved Aidoo’s right to argue to the district court that he

qualified for sentencing under the safety valve and to appeal

should the court reject his safety-valve argument. 

UNITED STATES v. AIDOO 3
The presentence report ("PSR") prepared in advance of sentencing stated that Aidoo "appears to meet the criteria set for

imposition of a sentence . . . without regard to any statutory

minimum sentence." J.A. 104. Applying a three-level

acceptance-of-responsibility reduction and the two-level

reduction provided for defendants who meet the safety-valve

requirements, see U.S.S.G. § 2D1.1(b)(11), the PSR calculated that Aidoo’s advisory sentencing range was 57-71

months.

After receiving the PSR, counsel for Aidoo submitted to the

court a letter outlining his view of sentencing. Counsel contended that Aidoo had satisfied all of the safety-valve requirements and noted that the government had not objected to the

finding in the PSR that Aidoo was eligible for the safetyvalve. In the letter, counsel asserted that several of Aidoo’s

international trips had been for the purpose of obtaining medical treatment that was unavailable to Aidoo in Ghana. The

day after Aidoo’s letter was filed, the government filed a sentencing memorandum objecting to application of the safety

valve because Aidoo had not been truthful and specifying its

reasons for believing Aidoo to be ineligible.

At the sentencing hearing, the government explained its

opposition to application of the safety valve, reiterating the

points made in its sentencing memorandum. The government

stated that Aidoo’s claim that the March 27 incident was the

first time he had smuggled heroin was inconsistent with the

information stipulated to in the plea agreement; that the large

quantity of heroin Aidoo had ingested (just under a kilogram)

suggested that he was an experienced smuggler; that Aidoo

had never identified his contact in the United States; and that

his international-clothes-buying-and-reselling story was not

believable. The government noted that while counsel for

Aidoo had stated in his sentencing letter that some of Aidoo’s

international trips had been to obtain medical treatment,

Aidoo himself had not mentioned any such trips during the

proffer session.

4 UNITED STATES v. AIDOO
Counsel for Aidoo asserted that Aidoo had been completely

truthful about the conduct that led to his arrest and was entitled to sentencing under the safety valve. Although counsel

presented no evidence to support Aidoo’s story, counsel did

represent to the court that counsel had read certain Congressional testimony and various newspaper articles indicating

that drug mules ingest, on average, just under a kilogram of

drugs. Counsel also noted that Aidoo had medical records in

his possession when he was arrested that showed he had

received medical treatment in Belgium at least four times.

Counsel argued that the stipulation in the plea agreement

about Aidoo’s prior activities was not an admission that

Aidoo had smuggled previously, but merely reflected his

agreement that Aidoo had previously listed an address that at

some point was associated with drug smugglers.1 When asked

by the district court how Aidoo had paid for all of his international travel, counsel stated he had spoken to the pastor of

Aidoo’s church in Ghana and that the church had provided

some financial assistance. Counsel argued that the government was free to disbelieve Aidoo’s story about his clothesbuying trips, but that the prior trips were not part of a common scheme or plan with the offense of conviction and that

Aidoo was not required to explain those trips to qualify for

the safety valve.

The district court concluded that Aidoo was not entitled to

sentencing under the safety valve because of the "inherent

implausibility" of Aidoo’s explanation of his international

travel. J.A. 53. The court explained:

1We note that counsel’s statement seems to suggest that on previous

trips to the United States, Aidoo listed on his customs declaration form an

address in New York that was used by Nigerian drug smugglers, while the

stipulation in the plea agreement indicates that Aidoo actually visited the

address associated with the drug smugglers. The precise details of Aidoo’s

connection to the New York address, however, are not relevant to our

decision. 

UNITED STATES v. AIDOO 5
[T]hat was not a statement of some kind of wholesale business that he was arranging shipments back

on a freighter or a bulk shipment, or that he was buying from factories. It’s just simply implausible that

a person can go to a department store in Brussels or

some other city, buy some garments, put them in the

suitcase, go back to Ghana, and sell them for a price

that covers the expenses of the trips.

All the thousands of dollars for international travel

and staying in hotels is simply implausible, and, for

that reason, I conclude that Mr. Aidoo is not eligible

for the safety valve.

J.A. 53. Counsel for Aidoo then explained to the court that

Aidoo in his proffer had talked primarily about buying clothes

at outdoor bazaars and fairs and had mentioned only one

department store. The district court accepted that proffer but

explained that it did not change its conclusion: "[T]he signal

event [is] that the clothes go into a suitcase and go back to

Ghana, so we don’t have anything that could be characterized

as a wholesale operation. So even accepting that proffer, my

view is the same." J.A. 55. The district court thus concluded

that Aidoo was subject to the five-year mandatory minimum

sentence, and the court sentenced him to 60 months’ imprisonment.

II.

A.

The safety-valve statute requires sentencing courts to disregard any statutory mandatory minimum sentence if the defendant establishes that: (1) he does not have more than one

criminal history point; (2) he did not use or threaten violence

or possess a firearm or other dangerous weapon; (3) the

offense did not result in death or serious bodily injury; (4) he

was not an organizer, leader, manager, or supervisor of others;

6 UNITED STATES v. AIDOO
and (5) he truthfully provided the government with all evidence and information about the offense and related offenses.

See 18 U.S.C. § 3553(f).

Under the statute, the government must be given an opportunity to make a recommendation, but the statute requires the

district court to independently determine whether the requirements have been met, including whether the defendant was

truthful. See id.; United States v. Ivester, 75 F.3d 182, 185

(4th Cir. 1996). In this case, there is no dispute that Aidoo satisfied the first four requirements of § 3553(f). The only question is whether Aidoo satisfied the fifth requirement by

"truthfully provid[ing] 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." 18 U.S.C. § 3553(f)(5). 

The defendant bears the burden of "prov[ing] that the prerequisites for application of the safety valve provision, including truthful disclosure, have been met." United States v.

Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996); accord

United States v. Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir.

2005) (en banc); United States v. Marquez, 280 F.3d 19, 23

(1st Cir. 2002); United States v. Gambino, 106 F.3d 1105,

1110 (2d Cir. 1997); United States v. Ramirez, 94 F.3d 1095,

1101 (7th Cir. 1996). And because the burden is on the defendant, the government has no obligation to present evidence of

the defendant’s failure to satisfy the requirements of the

safety valve. See United States v. Sanchez, 475 F.3d 978, 980

(8th Cir. 2007) ("The United States has no burden to refute a

defendant’s assertion that his information is truthful if his

proffer is inadequate."); Marquez, 280 F.3d at 24-25 ("Were

we to . . . insist upon extrinsic evidence, district courts would

be bound to accept even the most arrant nonsense from a

defendant’s mouth so long as the government could not

directly contradict it by independent proof. A rule to that

effect would turn the burden of persuasion inside out.").

UNITED STATES v. AIDOO 7
B.

On appeal, Aidoo argues that the district court erred by

concluding he was not entitled to sentencing under the safety

valve. While Aidoo acknowledges that the burden of proving

compliance with the statute belongs to him, he argues that he

did prove his compliance and that the government therefore

was obligated to come forward with evidence showing that he

had not been truthful or that his disclosure was less than complete. Because the government did not present such evidence,

Aidoo contends that the district court had no basis for refusing

to apply the safety valve.

In support of his claim that the government was required to

disprove his story, Aidoo relies primarily on United States v.

Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996). In MirandaSantiago, the First Circuit held that the government could not

defeat the application of the safety valve "simply by saying,

‘We don’t believe the defendant,’ and doing nothing more."

Id. at 529. The court made it clear, however, that any obligation on the part of the government arises only if the defendant

has established the credibility of his story:

The defendant plainly has the burden of proving, by

a preponderance of the evidence, entitlement to relief

under section 3553(f). However, where a defendant

in her submissions credibly demonstrates that she

has provided the government with all the information she reasonably was expected to possess, in

order to defeat her claim, the government must at

least come forward with some sound reason to suggest otherwise.

Id. at 529 n.25 (emphasis added; citation omitted). Since

Miranda-Santiago was decided, the First Circuit has repeatedly emphasized the narrowness of that holding. For example,

in Marquez, the First Circuit rejected the defendant’s claim

that Miranda-Santiago required the government to present

8 UNITED STATES v. AIDOO
evidence showing that his disclosure was untruthful or incomplete. See Marquez, 280 F.3d at 24. The Marquez court reiterated the established rule that "a sentencing court may reject

a safety valve proffer based on its reasoned assessment of the

defendant’s credibility in light of the facts — and that the

court may do so without the benefit of independent rebuttal

evidence." Id. As to the defendant’s understanding of

Miranda-Santiago, the court explained that

Miranda-Santiago stands merely for the proposition

that when the record, taken as a whole, will not support a finding that the defendant has failed to provide

a truthful and complete proffer, the government’s

lack of confidence in the proffer is insufficient, in

and of itself, to justify a denial of access to the safety

valve.

Id.; see also United States v. Padilla-Colon, 578 F.3d 23, 31

(1st Cir. 2009) (reaffirming the Marquez court’s understanding of Miranda-Santiago); United States v. White, 119 F.3d

70, 74 (1st Cir. 1997) ("Miranda-Santiago in no sense suggests that the sentencing court cannot arrive at an independent

determination regarding a criminal defendant’s truthfulness,

based on the evidence before it. Rather, we there held merely

that it was clear error to conclude that the defendant had been

untruthful, based solely on a PSR which directly contradicted

the district court’s determination.").

Since any obligation on the part of the government under

Miranda-Santiago arises only after the defendant has carried

his burden of proof, Aidoo’s various arguments that the government was required to present evidence disproving his story

are thus dependent on his assertion that he carried his burden

of proof and established at the sentencing hearing that he provided a truthful and complete disclosure of all relevant information. The record, however, does not support this assertion.

UNITED STATES v. AIDOO 9
Counsel for Aidoo insisted at sentencing that Aidoo had

truthfully told the government everything he knew about the

incident leading to his arrest. A defendant’s "bare assertion

that he was truthful," however, is insufficient to "satisfy his

burden to prove by a preponderance of the evidence that he

provided a full and honest disclosure." United States v.

Montes, 381 F.3d 631, 637 (7th Cir. 2004). The defendant’s

burden under the safety valve is a true burden of proof that

rests, at all times, on the defendant. To carry his burden, the

defendant must persuade the district court that he has made

full, truthful disclosure of information required by the safety

valve. See Ramirez, 94 F.3d at 1100 ("The court’s conclusion

in favor of the defendant necessarily depends upon the defendant’s persuasive ability to demonstrate to the court that he is

eligible for the reduced sentence."); United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996) ("It is up to the defendant to persuade the district court that he has truthfully

provided the required information and evidence to the government." (internal quotation marks omitted)). At least in cases

like this one, where the government opposes application of

the safety valve, a defendant cannot carry his burden of proof

without presenting some kind of evidence. See United States

v. Cervantes, 519 F.3d 1254, 1258 (10th Cir. 2008) ("Absent

a favorable recommendation from the government, a defendant needs to put on evidence at the sentencing hearing to

meet his burden of showing that he truthfully and fully disclosed everything he knew and to rebut government claims to

the contrary."); United States v. Martinez, 301 F.3d 860, 866

(7th Cir. 2002) (explaining that a defendant "cannot meet this

burden if the government challenged the truthfulness, accuracy, or completeness of his statements and he produced nothing to persuade the district court that his disclosures were

truthful and complete").2

2Given the nature of sentencing proceedings, the evidence supporting a

defendant’s claim of truthful disclosure need not be as formal as might be

required in a trial. See United States v. Cervantes, 519 F.3d 1254, 1258

(10th Cir. 2008) (noting that defendant’s evidence "may include proffer

documents, stipulated facts, or, in all likelihood, testimony from the defendant or a representative of the government subject to cross-examination").

10 UNITED STATES v. AIDOO
Aidoo, however, did not testify at the sentencing hearing,

and he presented no other evidence showing that he had provided the government with complete and truthful disclosure.

To be sure, counsel for Aidoo talked about evidence — the

medical records showing Aidoo received treatment in Europe,

and the newspaper articles and Congressional testimony indicating that it is not unusual for drug smugglers to ingest up

to a kilogram of narcotics. The documents, however, were not

presented to the district court, and the government did not

stipulate to any of the information proffered by counsel for

Aidoo. Nonetheless, even if we treat counsel’s statements

about the documents as evidence, they do little to further

Aidoo’s claim. The medical records explain only a few of the

"dozens and dozens" of international trips shown on Aidoo’s

passport, J.A. 32, and the ability of some smugglers to ingest

a kilo of narcotics says nothing about the likelihood that a

first-time "body packer," as Aidoo claimed to be, could ingest

such a large quantity. This evidence, at best, may be consistent with Aidoo’s story, but the evidence falls far short of

proving that Aidoo provided full and truthful disclosure.

Given the weakness of the evidentiary record—a record that

Aidoo was obligated to establish—we cannot say that the district court clearly erred by concluding that Aidoo was not eligible for sentencing under the safety valve. See United States

v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997) (explaining that

the district court’s determination of whether a defendant has

satisfied the safety valve criteria is a question of fact reviewed

for clear error); see also United States v. Adu, 82 F.3d 119,

125 (6th Cir. 1996) ("Where the government challenges a

defendant’s claim of complete and timely disclosure and the

defendant does not produce evidence that demonstrates such

disclosure, a district court’s denial of a motion under

§ 3553(f) and § 5C1.2(5) is not clearly erroneous.").

This case, therefore, is quite unlike Miranda-Santiago,

where the only inference that could be drawn from the record

was that the defendant had provided a truthful and complete

proffer. Because Aidoo failed to create a record that affirmaUNITED STATES v. AIDOO 11
tively establishes that he provided complete and truthful disclosure to the government, we reject Aidoo’s arguments that,

under Miranda-Santiago, the government was required to

present evidence showing that he had not been truthful or that

his disclosure was less than complete.

Our conclusion that the government had no obligation to

present evidence rebutting Aidoo’s proffer leaves little room

for Aidoo to challenge the district court’s rejection of the

safety valve. At the sentencing hearing, the government, in

accordance with its statutory right to make a recommendation,

see 18 U.S.C. § 3553(f), pointed out the shortcomings of

Aidoo’s proffer, such as his refusal to implicate Evans Twum

or to otherwise identify his contact in the United States, and

suggested that Aidoo’s clothes-buying story was not believable. See Ramirez, 94 F.3d at 1102 ("The government may

respond to the defendant’s statements by challenging them for

their lack of candor or completeness or by calling to the

court’s attention the omission of evidence that the defendant

should know and has not turned over to the government.").

The district court was entitled to consider those arguments

when making its independent determination of whether the

defendant had satisfied the statutory requirements. See United

States v. Gales, 603 F.3d 49, 54 (D.C. Cir. 2010) (explaining

that even though the government did not present evidence

contradicting the defendant’s story, the district court was entitled to consider the government’s assertion that the defendant’s story was not credible); United States v. Ponce, 358

F.3d 466, 468-69 (7th Cir. 2004) ("A district court has the discretion . . . to consider the government’s statements regarding

contradictions and omissions in a defendant’s offer of information . . . ."). The district court was likewise entitled to draw

on its common sense and real-world experience to conclude

that buying clothes at retail in the United States and Europe—

in suitcase-sized lots—for resale in Ghana was unlikely to be

a money-making venture, particularly given the airfare and

hotel costs associated with international travel. See Gales, 603

F.3d at 54 (district court is entitled to draw reasonable infer12 UNITED STATES v. AIDOO
ences when determining the credibility of defendant’s proffer); Marquez, 280 F.3d at 24 ("[A] sentencing court may

reject a safety valve proffer based on its reasoned assessment

of the defendant’s credibility in light of the facts . . . .");

Beltran-Ortiz, 91 F.3d at 669 n.4 ("[D]istrict courts remain

free to reject a defendant’s claim of full disclosure for credibility reasons . . . ."); Montanez, 82 F.3d at 523 ("The government is perfectly free to point out the suspicious omissions at

sentencing, and the district court is entitled to make a common sense judgment. . . ."); cf. United States v. Perry, 747

F.2d 1165, 1169 (7th Cir. 1984) ("Judges in the federal system, whether they are in the trial or appellate system, do not

operate in a vacuum, shielded from knowledge of drug operations in the real world . . . .").

Aidoo, however, contends that the district court’s disbelief

of the clothes-buying story cannot justify the court’s refusal

to apply the safety valve. The safety valve requires disclosure

of information "concerning the offense or offenses that were

part of the same course of conduct or of a common scheme

or plan." 18 U.S.C. § 3553(f)(5). Aidoo argues that because

the government failed to connect any prior drug-smuggling by

Aidoo to the offense of conviction, he was not obligated

under the safety valve to explain his prior travels. And

because he was not required to disclose information about his

prior travels, Aidoo contends that the court’s disbelief of his

clothes-buying story does not preclude application of the

safety valve. See, e.g., United States v. Miller, 179 F.3d 961,

967-68 (5th Cir. 1999) (concluding that the defendant was

entitled to application of safety valve despite his lies about

prior conduct, because the prior conduct was not relevant conduct about which disclosure is required). We disagree.

As an initial matter, we note that even if the prior smuggling alluded to in the plea agreement was not sufficiently

connected to the offense of conviction, that does not mean

that Aidoo’s explanation of his international travel cannot be

subject to scrutiny under the safety valve. Section 3553(f)(5)

UNITED STATES v. AIDOO 13
requires broad disclosure from the defendant; it is a tell-all

provision that requires the defendant to "truthfully supply

details of his own culpability." United States v. RealHernandez, 90 F.3d 356, 361 (9th Cir. 1996); accord Montes,

381 F.3d at 636 (The "plainly broad language [of

§ 3553(f)(5)] suggests that any and all information that the

defendant possesses concerning the offense must be provided

to the Government." (internal quotation marks omitted)). As

noted above, Aidoo offered the clothes-buying story to bolster

his claim that the incident leading to his arrest was his first

venture into smuggling. Whether the incident was Aidoo’s

first time smuggling is the kind of detail about the offense of

conviction that must be disclosed under the safety valve. See

United States v. Gonzalez-Montoya, 161 F.3d 643, 652 (10th

Cir. 1998) ("Under § 3353(f)(5), a defendant must affirmatively volunteer all he knows [about the offense of conviction], including facts beyond the basic elements of the

crime."). The story that Aidoo offered up to bolster his claim

on this point should likewise be treated as part of the disclosure required by the safety valve. 

Moreover, even if we were to accept Aidoo’s view that his

international travels were not connected to the offense of conviction and that his clothes-buying story was not part of the

disclosure required by the safety valve, we would still find no

error in the district court’s consideration of the plausibility of

Aidoo’s clothes-buying story. As Aidoo notes, a defendant’s

lies about an unrelated matter or later-corrected lies about the

offense do not automatically foreclose application of the

safety valve. See United States v. Brownlee, 204 F.3d 1302,

1304 (11th Cir. 2000); Miller, 179 F.3d at 967-68. Nonetheless, while the lies may not be disqualifying, neither are they

irrelevant. The district court is obligated to determine for

itself whether the defendant has truthfully provided the government with all the relevant information that he knows, and

the court is free to consider any lies the defendant may have

told when evaluating the defendant’s truthfulness. See United

States v. Nuzzo, 385 F.3d 109, 119 n.25 (2d Cir. 2004)

14 UNITED STATES v. AIDOO
("While a district court may find the fifth criterion of the

safety valve satisfied despite prior lies and omissions, neither

a district court nor this Court is precluded from considering

those prior lies and omissions in determining whether the

defendant has met his burden of proving that the information

provided as of sentencing is complete and truthful."); Brownlee, 204 F.3d at 1305 ("[T]he evidence of [the defendant’s

prior] lies becomes part of the total mix of evidence for the

district court to consider in evaluating the completeness and

truthfulness of the defendant’s proffer." (internal quotation

marks omitted)). In this case, as noted above, it was proper for

the district court to use its own common sense to find Aidoo’s

clothes-buying story implausible. Upon finding the story

implausible, the district court committed no error by basing its

rejection of the safety valve on the fact that Aidoo lied during

his proffer session. See United States v. Guerra-Cabrera, 477

F.3d 1021, 1025 (8th Cir. 2007) ("The district court was . . .

entitled to infer untruthfulness from the implausibility of

appellants’ accounts."); United States v. Fletcher, 74 F.3d 49,

56 (4th Cir. 1996) (affirming denial of safety valve in case

where district court found that defendant lied by fabricating

an alibi at trial: "[I]t is not illogical to assume that the judge

similarly determined that [the defendant] failed to comply

with the fifth condition" of § 3553(f)).

III.

We turn now to Aidoo’s remaining challenges to the district court’s rejection of his safety-valve claim.

A.

In the course of its ruling, the district court stated that "if

Mr. Aidoo was an experienced heroin smuggler, then he was

required to advise the government of that fact and explain his

experience, how many times he has done this, who he did it

for, his modus operandi." J.A. 52. Aidoo argues that this

description of the disclosure obligation effectively requires

UNITED STATES v. AIDOO 15
disclosure of every criminal act the defendant has ever committed. While a defendant seeking a substantial-assistance

reduction in his sentence might be required to make that kind

of wide-ranging disclosure, see U.S.S.G. § 5K1.1(a)(2), the

safety valve’s disclosure requirement is limited to information

about the offense of conviction and any other crimes that constitute relevant conduct, see 18 U.S.C. § 3553(f). Aidoo thus

contends that the district court measured his compliance

against a standard of disclosure higher than that imposed by

the safety valve. We disagree. 

The district court made this statement in the course of considering the government’s claim that Aidoo was an experienced smuggler, and the statement is an accurate description

of the disclosure that would be required if Aidoo were an

experienced member of a drug-smuggling conspiracy. See,

e.g., United States v. Romo, 81 F.3d 84, 85 (8th Cir. 1996)

("To satisfy § 3553(f)(5), Romo was required to disclose all

the information he possessed about his involvement in the

crime and his chain of distribution, including the identities

and participation of others."); Ivester, 75 F.3d at 184

("[S]atisfaction of § 3553(f)(5) requires a defendant to disclose all he knows concerning both his involvement and that

of any co-conspirators."). Moreover, even if the court’s statement could somehow be viewed as an indication that the court

had an impermissibly broad view of the disclosure required

when there is no conspiracy, any such error would be harmless, given our conclusion that the issue upon which the district court based its rejection of the safety valve—Aidoo’s

explanation for his international travels—was properly considered by the court, whether or not those travels were sufficiently connected to the offense of conviction.

B.

The PSR included a determination by the probation officer

that Aidoo "appear[ed] to meet the criteria" for sentencing

under the safety valve. J.A. 104. The Federal Rules of Crimi16 UNITED STATES v. AIDOO
nal Procedure require objections to the PSR to be filed within

fourteen days of receipt of the PSR, see Fed. R. Crim. P.

32(f)(1); neither the government nor Aidoo filed any formal

objections to the PSR. Six days before sentencing, however,

the government filed its sentencing memorandum objecting to

application of the safety valve.

On appeal, Aidoo contends that the district court erred by

entertaining the government’s untimely objection to the

PSR’s safety-valve determination. Aidoo did not raise the

timeliness of the government’s objection below, and we therefore review the claim for plain error only. To obtain relief

under plain-error review, Aidoo must first establish that "the

district court erred, that the error was plain, and that it

affected his substantial rights." United States v. Robinson, 627

F.3d 941, 954 (4th Cir. 2010) (internal quotation marks and

alterations omitted). "Even when this burden is met, we have

discretion whether to recognize the error, and should not do

so unless the error seriously affects the fairness, integrity or

public reputation of judicial proceedings." United States v.

Hargrove, 625 F.3d 170, 184 (4th Cir. 2010) (internal quotation marks omitted), cert. denied, 80 U.S.L.W. 3189 (U.S.

Oct. 3, 2011) (No. 11-5287).

As an initial matter, it is not entirely clear that the time limits of Rule 32(f)(1) constrain the government’s ability to challenge a defendant’s eligibility for safety-valve sentencing.

The safety-valve statute requires the district court to give the

government an opportunity to express its views about the

applicability of the statute, see 18 U.S.C. § 3553(f) (court

must "impose a sentence . . . without regard to any statutory

minimum sentence, if the court finds at sentencing, after the

Government has been afforded the opportunity to make a recommendation," that defendant satisfied the statutory requirements (emphasis added)), and it is not apparent to us that the

court’s statutory obligation to seek out the government’s

views should be affected by the government’s failure to

timely object to a PSR’s safety-valve recommendation.

UNITED STATES v. AIDOO 17
In any event, assuming the time limits of Rule 32(f)(1)

apply, we note that the district court under Rule 32 has the

authority to change the time limits for good cause. See Fed.

R. Crim. P. 32(b)(2). Given Aidoo’s failure to question the

timeliness of the government’s objection, the district court’s

decision to hear the government’s objection may be treated as

an implicit finding of the existence of good cause. See United

States v. Archuleta, 128 F.3d 1446, 1452 n.12 (10th Cir.

1997) ("[N]o explicit finding of good cause is necessary"

when defendant failed to contemporaneously object to consideration of government’s untimely objection to recommendation in PSR.). It seems to us that, if nothing else, the

government’s right under the statute to express its views on

the applicability of the safety valve would constitute good

cause to modify the time limits and treat the government’s

sentencing memorandum as timely filed. Aidoo, however,

does not even attempt to argue against the existence of good

cause, and he therefore has failed to establish that the district

court erred, much less plainly erred, by hearing the government’s views on his safety-valve eligibility. 

Moreover, even if Aidoo could satisfy the first three prongs

of the plain-error standard, the claimed error in this case is not

sufficiently serious to require us to exercise our discretion to

correct it. See Robinson, 627 F.3d at 959 ("Plain error review

exists to correct only the most grievous of unnoticed errors.").

As previously discussed, the district court was statutorily

required to make an independent determination of Aidoo’s

eligibility, and Aidoo bore the burden of proving to the district court that he had satisfied the requirements of § 3553(f).

Neither the court’s obligation to independently determine

Aidoo’s eligibility nor Aidoo’s obligation to prove his eligibility was affected or relieved by the unobjected-to recommendation in the PSR. See United States v. McLean, 951 F.2d

1300, 1302-03 (D.C. Cir. 1991) (A defendant seeking an

acceptance-of-responsibility reduction "must be prepared to

carry his burden of convincing the court by a preponderance

of the evidence that he is entitled to it. The favorable recom18 UNITED STATES v. AIDOO
mendation of the probation officer does not relieve him of the

burden. Neither does the government’s failure to object."

(citation omitted)); United States v. White, 875 F.2d 427, 431

(4th Cir. 1989) (district court’s decision to give acceptanceof-responsibility reduction "is not controlled by the presentence report recommendation, nor is the district court required

to apply it simply because the government did not specifically

object to its proposed application").

Accordingly, whether or not the government formally

objected, Aidoo was obligated by the operation of § 3553(f)

itself to come to court prepared to prove his entitlement to

safety-valve sentencing by convincing the district court that

he had provided complete, truthful disclosure to the government. While Aidoo now contends that he would have been

"better positioned" to respond to the government’s views if

the government had filed a timely, formal objection to the

PSR, the government’s opposition to safety-valve sentencing

was known throughout the proceedings. The government

informed Aidoo at the end of the proffer session that it did not

believe he qualified under the statute, the plea agreement

spelled out the government’s opposition to safety-valve sentencing, and the government reiterated that opposition in its

sentencing memorandum filed six days before sentencing.

Aidoo did not argue below that he needed additional time to

gather evidence to counter the government’s position or otherwise suggest that he was surprised by the government’s opposition to application of the safety valve. And even on appeal,

Aidoo identifies no argument that he would have made or evidence that he would have presented to support his claim of

truthful disclosure if the government had filed a formal objection to the PSR that was timely under Rule 32(f)(1).

Under these circumstances, we cannot conclude that the

fairness, integrity or public reputation of judicial proceedings

was seriously affected by the district court’s decision to consider the government’s views notwithstanding the government’s failure to file a timely formal objection to the PSR’s

UNITED STATES v. AIDOO 19
safety-valve recommendation. See Hargrove, 625 F.3d at 184.

Aidoo has thus failed to carry his burden under plain-error

review of establishing that he is entitled to relief for the

asserted Rule 32 error. See United States v. Byers, 649 F.3d

197, 213 (4th Cir. 2010) ("Plain error review is strictly circumscribed, and meeting all four prongs is difficult, as it

should be." (internal quotation marks and alteration omitted)),

cert. denied, 80 U.S.L.W. 3238 (U.S. Oct. 17, 2011) (No. 11-

6371).

IV.

To summarize, we reject Aidoo’s claims that the district

court applied the wrong legal standard and that the government’s failure to timely object to the PSR should have precluded the court’s consideration of the government’s

objection to application of the safety valve. We likewise reject

Aidoo’s challenges to the district court’s denial of relief under

§ 3553(f). Aidoo bore the burden of proving that he had provided truthful and complete disclosure to the government, but

he presented no evidence compelling such a conclusion. The

district court committed no error when concluding that

Aidoo’s international-clothes-buying story was false, and that

conclusion provided a proper basis for the court’s rejection of

Aidoo’s claim that he was entitled to sentencing under the

safety valve. Accordingly, we hereby affirm Aidoo’s sentence.

AFFIRMED

GREGORY, Circuit Judge, dissenting:

Mr. Aidoo challenges the district court’s standard of eligibility for safety valve relief under 18 U.S.C. § 3553(f) and

U.S.S.G. § 5C1.2(a) and the court’s failure to apply the provision to his sentencing.

Both at the scene of his arrest and during his safety valve

proffer, Aidoo provided all information he could to the gov20 UNITED STATES v. AIDOO
ernment about the source of the narcotics he ingested, his

travel itinerary, his destination, his contact in the United

States, his promised compensation, and the quantity of narcotics involved in his offense. Despite his exhaustive proffer, the

district court deemed Aidoo ineligible for the safety valve

based upon the government’s speculation that Aidoo was

untruthful about previous travel on his passport and that this

previous travel must have been related to the instant offense.

More is required under the law than such conjecture. As such,

I respectfully dissent.

I.

At best, the record in this case supports the government’s

speculation that Aidoo was less than truthful about his past

international travel. Lying about irrelevant prior activities,

however, does not impact a § 5C1.2 determination. See

United States v. Miller, 179 F.3d 961, 968 (5th Cir. 1999). As

such, even where the district court credits a claim of untruthfulness, it is still tasked with determining whether the allegedly less-than-truthful assertions caused the defendant to

forfeit his right to application of the safety valve provision.

With regard to this determination, the district court held

that "if Aidoo was an experienced heroin smuggler, then he

was required to advise the government of that fact and explain

his experience . . . ." (emphasis added). This overbroad reading of § 5C1.2 required Mr. Aidoo to do much more than is

required under the law. Contrary to the district court’s contention, Aidoo was not required to "come clean" to the government about all prior illegal activity. To secure safety valve

relief, a defendant must only "truthfully provide . . . 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 . . . ." U.S.S.G. § 5C1.2(5) (emphasis added).

Although § 5C1.2 does not define "course of conduct" or

"common scheme or plan," the advisory guidelines do. Under

UNITED STATES v. AIDOO 21
the advisory guidelines, offenses are part of a "common

scheme or plan" when they are "substantially connected to

each other by at least one common factor such as common

victims, common accomplices, common purpose or similar

modus operandi." U.S.S.G. § 1B1.3, comment. (n.9(A)). "Offenses that do not qualify as part of a common scheme or plan

may qualify as part of the same course of conduct if they are

sufficiently connected or related to each other as to warrant

the conclusion that they are part of a single episode, spree, or

ongoing series of offenses." Id. at comment. (n.9(B)). Factors

appropriate to this determination include the degree of similarity of the offenses, the regularity of repetitions of the

offenses, and the time interval between the offenses. Id.

In this case, a conclusion that Aidoo’s false proffer

defeated safety valve reduction requires three determinations:

(1) that Aidoo lied about international travel, (2) that Aidoo’s

lies about international travel were in fact lies about prior

involvement with drug activity, and (3) if so, that these prior

drug activities qualify as part of the "same course of conduct"

or "common scheme or plan" as the offense of conviction.

As to the first determination — whether Aidoo did in fact

lie in his proffer—the district court credited the government’s

speculation that Aidoo was untruthful about previous travel

on his passport because his explanation for how he afforded

the travel was implausible. Aidoo is a dual-citizen of the

Netherlands and Ghana. His passport reflects various travel

stamps that indicate entry into and exit from Ghana. When

asked to justify the reasons for his past international travel,

Aidoo explained that he purchased clothing in European

nations for resale in Africa. The government cited its disbelief

of Aidoo’s justification by summarily contending it is impossible to make money in this fashion. Absent data or other

empirical evidence, the district court credited this speculation

as grounds for denying safety valve relief.

Even assuming for the sake of argument that Aidoo did lie

about his reasons for past travel, there is no detail in the

22 UNITED STATES v. AIDOO
record regarding Aidoo’s prior travel activities, apart from

passport stamps and an "implausible" explanation, to support

the necessary inference that Aidoo’s travel must have been

related to drug activities. Aidoo could have been lying about

smuggling clothing or his involvement in any number of illegal or legal activities of no relevance to the safety valve determination. The fact that Aidoo failed to sufficiently justify

prior stamps in his passport does not support the district

court’s leaping inference that Aidoo is "an experienced heroin

smuggler" — an assumption upon which the district court

relied in articulating its standard of eligibility for safety valve

relief.

Finally, even if we were to credit the government’s claim

that Aidoo’s acknowledgment of the prior drug intelligence in

his plea agreement was somehow an admission that he had

been involved in drug smuggling before — a point Aidoo

vehemently denies — there is still no detail about this alleged

prior drug activity that would permit the district court to make

the third necessary determination to deny safety valve relief.

Nothing is present in the record about this speculated prior

activity that would permit the district court to determine

Aidoo lied about an incident that was part of the "same course

of conduct or a common scheme or plan" as required by the

Guidelines. U.S.S.G. § 5C1.2(5). A recommendation to deny

safety valve relief cannot simply rest on a claim — even a

substantiated one — that a defendant was involved in past

drug activity. Miller, 179 F.3d at 964.

In that respect, the instant matter bears striking resemblance to our sister circuit’s decision in Miller. While Miller

is not controlling precedent, it certainly is persuasive. In Miller, the defendant was convicted of possession with intent to

distribute cocaine for the possession of over two kilograms of

cocaine. Id. at 963. Unlike Aidoo, the Miller defendant had a

documented history of significant involvement in drug sales.

Id. Regardless, during his safety valve proffer, Miller denied

prior involvement in the sale or distribution of drugs and furUNITED STATES v. AIDOO 23
ther claimed that he had learned how to dry cocaine for the

first time before his arrest for the offense of conviction.

Unlike the instant matter, the Miller defendant did "not contest the district court’s conclusion that he lied about his prior

drug activities." Id. at 965. Instead, he maintained that "he

was not required to divulge information about the two previous drug-related incidents because they were not ‘part of the

same course of conduct or of a common scheme or plan’ as

required by the Guidelines." Id. In response, the government

provided numerous documented similarities between the

offense of conviction and the previous drug activity. Id.

Despite these factually supported connections and the fact

that the Miller defendant had plainly lied, the Fifth Circuit

held that because the "prior drug activities were not substantially connected or sufficiently related to the offense of conviction, they did not constitute a common scheme or plan or

the same course of conduct within the meaning of

§ 5C1.2(5)." Id. at 965-66. The court also noted that "[i]n

determining sufficient connection [between offenses], a court

may consider, inter alia, the following factors: (1) the degree

of similarity between the offenses; (2) the regularity or repetitions of the offenses; and (3) the time interval between the

offenses. Id. at 966 (internal citation omitted). Finding that the

government failed to connect the previous drug activity with

the count of conviction, the Fifth Circuit held that the lower

court erred in finding that the defendant’s false proffer

defeated a safety valve reduction. The same result is warranted even more so here. Based on virtually no record, the

district court concluded that Aidoo’s explanation of his previous travel must have been false, that this travel must have

been related to drug smuggling trips, and that these smuggling

trips must have been related to the offense of conviction. Even

if we were to credit the district court’s first two leaping inferences, the government still failed to provide sufficient facts

regarding these speculated previous smuggling trips for the

sentencing judge to gauge the similarity of the offenses and

affirmatively connect them to the count of conviction as

24 UNITED STATES v. AIDOO
required by the Guidelines. Absent evidence, this multilayered speculation is insufficient to defeat the statutory entitlement of safety valve relief. Moreover, the district court’s

mistaken belief that it could not give Aidoo safety valve credit

if he didn’t "come clean" about speculated previous offenses

cannot form the basis for safety valve denial.

II.

For the reasons set forth above, Aidoo’s sentence should be

vacated, and the case should be remanded to the district court

for resentencing with instructions to apply the safety valve

provision.

UNITED STATES v. AIDOO 25