## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 21 2000 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JOSE PATRON-MONTANO,

Defendant-Appellant. No. 99-6002

Appeal from the United States District Court for the W. District of Oklahoma (D.C. No. 98-CR-112-002)

Richard E. Stout, Edmond, Oklahoma, for Appellant. Frank Michael Ringer, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, Oklahoma City, Oklahoma, with him on the brief), for Appellee.

Before EBEL, ANDERSON, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.

Appellant, Jose Patron-Montano, appeals the sentenc e he received for his role in a conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1)1 This court notes that Aguirre’s name is spelled “Aq uirre” in several places

in the record. We refer to him as “Aguirre” throug hout this opinion. 2 and 846. Patron-Montano pleaded guilty and sought a three-level decrease to his base offense level under the acceptance of responsi bility provision found in § 3E1.1(b) of the United States Sentencing Guidelines (“U.S.S.G.” or the “sentencing guidelines”) and a two-level decrease u nder the “safety-valve” provisions of U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2. T he government opposed both adjustments, contending that Patron-Montano was ine ligible for either because he intentionally misidentified a co-conspirator. The district court concluded that Patron-Montano had lied about the involvement of a co-conspirator and thus could not demonstrate that he was entitled to the a cceptance of responsibility or safety valve decreases. The district court overrul ed Patron-Montano’s objections and sentenced him to ninety-seven months’ incarceration. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms

. I. Factual Background Patron-Montano was the object of a drug investigati on conducted by the Oklahoma City Police Department and the Drug Enforc ement Agency. As part of this investigation, an undercover officer met with Patron-Montano and Norman Aguirre 1 on May 28, 1998. At this meeting, the undercover officer showed Patron-Montano and Aguirre $185,000 in cash and exp ressed an interest in3

purchasing ten kilograms of cocaine. Patron-Montan o told the officer he was uncertain he could obtain ten kilos but believed he could obtain five kilos. Surveillance officers observed Patron-Montano and A guirre leave the meeting, travel to a residence at 1413 Southwest 35th Street , use pay telephones at two businesses, travel to 2108 Southwest 66th Street, g o to a restaurant, drive to a residence at 1549 Southwest 46th Street, use a pay telephone at a retail establishment, and finally arrive at the residence the two shared. Later that day, Patron-Montano contacted a confiden tial source assisting the undercover officer and informed the source thathe had obtained the five kilos of cocaine. Patron-Montano also expressed his desi re that the transaction be conducted at his residence. The confidential sourc e communicated this information to the undercover officer. The underco ver officer, however, refused to meet at Patron-Montano’s residence. A series of telephone calls ensued while the parties attempted to reach an agreement as to t he location of the meeting. During one of these calls, Patron-Montano informed the undercover officer that the suppliers of the cocaine had arrived at his res idence. Ultimately, however, the parties were unable to agree on a location to c omplete the sale of the cocaine. Patron-Montano eventually telephoned the undercoveragent and informed him that the suppliers were angry and were leaving his residence. During the course of the telephone conversations, s urveillance officers4

observed a vehicle arrive at Patron-Montano’s resid ence. When the vehicle left, a marked police car followed it. A traffic stop wa s initiated and officers conducted a search of the vehicle. During the sear ch, officers found a semiautomatic pistol, two cellular telephones, a pager, an address book, and 3993 grams of cocaine. The driver of the vehicle was id entified as Modesto Sicairos and the passenger as Ramon Aguilar. After surveill ance officers observed Patron-Montano and Aguirre leave their residence, o fficers also stopped their vehicle. The officers obtained consent to search t he residence and found marijuana, cocaine residue, and a sawed-off shotgun

. A four-count indictment was returned against Patron -Montano, Sicairos, Aguilar, and Aguirre. Patron-Montano was charged i n Count 1 of the indictment with conspiracy to distribute and possess with inte nt to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Patro n-Montano was not named in any of the remaining three counts. Patron-Montano pleaded guilty to the offense charged and a Presentence Investigative Report (“PS R”) was prepared prior to his sentencing. In the original PSR, Patron-Montano’s total offense level was calculated at twenty-seven and his criminal historycategory at I. The calculation of the total offense level included a three-level d ecrease to Patron-Montano’s base offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b). The government objected to the t hree-level decrease and an2 The statutory mandatory minimum sentence in this ca se was less than the

sentence calculated under the sentencing guidelines . If the statutory mandatory minimum sentence had been greater than the minimum sentence under the guidelines, the district court also would be reliev ed from imposing the statutory mandatory minimum if it had determined Patron-Montano met the five criteria set out in U.S.S.G. § 5C1.2. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. 5 amended PSR was prepared. As amended, the PSR did not recommend a decrease in Patron-Montano’s base offense level foracceptance of responsibility. Patron-Montano filed an objection to the PSR, conte sting the lack of a decrease for acceptance of responsibility and also contestin g the lack of a two-level decrease to the base offense level under the safety value provisions of U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2. 2 Three witnesses were called at Patron-Montano’s sen tencing hearing. The probation officer who prepared the PSR testified th at the sole basis for not recommending the acceptance of responsibility decre ase in the amended PSR was the government’s contention that Patron-Montano hadbeen untruthful in his statements about the extent of his co-conspirators’ involvement in the conspiracy. The probation officer further testified that he det ermined Patron-Montano was not eligible for the safety valve decrease based on the government’s statement that Patron-Montano had not disclosed all informati on he knew relating to the conspiracy. The second witness, the undercover officer, testifi ed that Sicairos, Aguilar,6

Aguirre, and Patron-Montano had given conflicting s tatements to investigators after their arrest. The officer testified that in his statement, Patron-Montano claimed he had obtained the cocaine from an individ ual named Ernesto. Specifically, Patron-Montano maintained that he wen t to Aguilar’s residence to ask Aguilar if he knew anyone from whom he could ob tain the cocaine and Aguilar reminded him of a potential supplier named Ernesto Garbonio. PatronMontano then stated he contacted Garbonio who arran ged to have Aguilar deliver the drugs to Patron-Montano. The officer testifiedthat he checked computerized police records but was unable to locate the individ ual implicated by PatronMontano. The officer also checked Patron-Montano’s wallet but was unable to locate the telephone number for Garbonio that Patro n-Montano claimed was in the wallet. The officer also testified that althou gh Aguilar also implicated Garbonio in the conspiracy, no co-conspirator menti oned Garbonio’s name until months after they were arrested. The officer testi fied that after considering all the statements given by Patron-Montano and his co-c onspirators, he believed that Sicairos was the source of the cocaine and that Pat ron-Montano lied when he claimed to have contacted someone named Ernesto Gar bonio. Aguirre also testified at Patron-Montano’s sentenci ng hearing. Aguirre testified that after he and Patron-Montano met with the undercover officer on the morning of May 28th, he drove Patron-Montano to Agu ilar’s residence. Aguirre7

stated that Patron-Montano told Aguilar he needed s ome drugs and Aguilar told Patron-Montano he would call him later. Aguirre te stified that Patron-Montano gave Aguilar his pager number and then he and Patro n-Montano left. Aguirre further testified that Aguilar and Sicairos later arrived at the residence he shared with Patron-Montano and that they brought the cocai ne with them. The undercover officer had earlier testified that he be lieved Aguirre’s statement over those made by Patron-Montano, Sicairos, and Aguilarbecause Aguirre’s statement was most consistent with the activity obs erved by the surveillance officers. After listening to all the testimony including an audiotape of the interview Patron-Montano gave to investigators, the district court concluded that PatronMontano lied when he claimed he had contacted Garbo nio to supply the drugs. Based solely on Patron-Montano’s lie about the sour ce of the drugs, the district court overruled both of Patron-Montano’s objections to the amended PSR and sentenced Patron-Montano to ninety-seven months’ imprisonment and four years supervised release. Patron-Montano filed this appe al. II. DISCUSSION A. Standard of Review In this appeal, Patron-Montano contends the distric t court erred when it concluded he lied about the source of the cocaine. Patron-Montano further8

contends that because he truthfully provided invest igators with all information he had concerning the offense of conviction, the distr ict court erred when it denied him the two-level safety valve decrease. Patron-Mo ntano also argues that the district court erroneously believed it was legally prohibited from granting him the three-level decrease for acceptance of responsibili ty because of the lie. This court reviews “the district court’s legal interpret ation of the [sentencing] guidelines de novo and review[s] its findings of fa ct for clear error, giving due deference to the district court’s application of th e guidelines to the facts.” United States v. Janusz , 135 F.3d 1319, 1324 (10th Cir. 1998) (citation om itted). A district court’s factual finding is clearly erron eous only “if it is without factual support in the record or if [this] court, after rev iewing all the evidence, is left with a definite and firm conviction that a mistake has been made.” Manning v. United States , 146 F.3d 808, 812 (10th Cir. 1998) (quotation omi tted). B. Safety Valve Provisions Patron-Montano was sentenced under the 1998 version of the sentencing guidelines. Patron-Montano argues that he is eligi ble for a two-level decrease in his base offense level under U.S.S.G. § 2D1.1(b)(6) because he meets the criteria found in the “safety valve” provisions of U.S.S.G. § 5C1.2. U.S.S.G. § 2D1.1(b)(6) states, “If the defendant meets the cri teria set forth in subdivisions (1)-(5) of § 5C1.2 . . . decrease by 2 levels.” Th e applicable criteria set forth in9

U.S.S.G. § 5C1.2 are as follows: (1) the defendant does not have more than 1 crimina l history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offens e; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, man ager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a cont inuing criminal enterprise, as defined in 21 U.S.C. § 848; and (5) not later than the time of the sentencing heari ng, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense o r offenses that were part of the same course of conduct or of a com mon scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is al ready aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. U.S.S.G. § 5C1.2. The government does not contest that Patron-Montano satisfied the first four criteria found in § 5C1.2 but argues only thatPatron-Montano has failed to meet the fifth criterion because he lied about the source of the cocaine and, thus, necessarily lied about the involvement of a co-conspirator. See United States v. Acosta-Olivas , 71 F.3d 375, 379 (10th Cir. 1995) (holding that adefendant is not entitled to a decrease under the safety valve provi sions of § 5C1.2 if he fails “to disclose all that he knows concerning both his own involvement in the crime and that of any co-conspirators”). Patron-Montano main tains that he truthfully named10

Garbonio as the source of the cocaine and, thus, me t the fifth criterion. A defendant has the burden of demonstrating, by a p reponderance of the evidence, that he qualifies for relief from a minim um mandatory sentence under the safety valve provisions of § 5C1.2. See United States v. Verners , 103 F.3d 108, 110 (10th Cir. 1996). Because § 5C1.2 and § 2 D1.1(b)(6) are inexorably interwoven, we now hold that a defendant also has t he burden of demonstrating that he qualifies for the § 2D1.1(b)(6) decrease. A defendant can satisfy his burden under § 2D1.1(b)(6) by demonstrating, by a p reponderance of the evidence, that he meets the criteria set forth in § 5C1.2. The sole factual issue presented to the district co urt at sentencing was whether Patron-Montano lied when he identified Garb onio as the source of the cocaine. By overruling Patron-Montano’s objections to the PSR, the district court necessarily found that Patron-Montano had lie d when he told investigators he had contacted Garbonio and arranged for Garbonio to supply the cocaine. A fair reading of Aguirre’s testimony at the sentenci ng hearing supports the conclusion that it was Aguilar, not Patron-Montano, who contacted the supplier. See United States v. Jackson , Nos. 98-6487, 99-6090, 2000 WL 710492, at *9 (10th Cir. June 2, 2000) (“[T]he credibility of a w itness at sentencing is for the district court to evaluate.”). After conducting a comprehensive review of the record, therefore, this court is convinced the dist rict court did not commit clear3 The government does not argue that Patron-Montano w as required to

voluntarily provide information about his co-conspi rators to qualify for the acceptance of responsibility decrease. That issue, therefore, is not before this court. The government, in fact, maintains that Patron-Montano could have remained silent with respect to his co-conspirators ’ participation in the charged offense without affecting his eligibility for the a cceptance of responsibility (continued...) 11 error in finding that Patron-Montano lied when he i dentified Ernesto Garbonio as the source of the cocaine. The district court’s fa ctual finding fatally undermines Patron-Montano’s contention that he truthfully prov ided investigators with all information he had concerning the offense of conviction. See Acosta-Olivas , 71 F.3d at 379. Thus, based on its finding that Patro n-Montano lied about the source of the cocaine, the district court properly denied Patron-Montano the twolevel decrease under U.S.S.G. § 2D1.1(b)(6). C. Acceptance of Responsibility A defendant bears the burden of demonstrating he is entitled to the decrease for acceptance of responsibility under § 3 E1.1 of the sentencing guidelines. See United States v. Nelson , 54 F.3d 1540, 1544 (10th Cir. 1995). Patron-Montano argues that he should receive the ac ceptance of responsibility decrease because he “fully admitted criminal liabil ity and . . . honestly and candidly provided all the information he had concer ning any criminal activity about which he was asked.” Although the governmentdoes not argue that Patron-Montano failed to truthfully admit his own criminal conduct, 3 a defendant3 (...continued)

decrease. 12 who truthfully admits his role in the charged offen se is not automatically entitled to receive the § 3E1.1 decrease. See U.S.S.G. § 3E1.1, comment. (n.3) (“A defendant who enters a guilty plea is not entitled to an adjustment under [§ 3E1.1] as a matter of right.”). Even when a defend ant truthfully admits his role in the offense of conviction, a district court may properly deny the § 3E1.1 decrease if the court concludes the defendant engag ed in conduct that is inconsistent with acceptance of responsibility. See id . (providing that evidence a defendant entered a guilty plea and truthfully admi tted or did not falsely deny relevant conduct, can be weighed against “conduct o f the defendant that is inconsistent with such acceptance of responsibility ”). Patron-Montano argues that a lie about the actions of a co-conspirator can never be considered by the district court when dete rmining a defendant’s eligibility for the acceptance of responsibility de crease. Admittedly, a defendant’s failure to admit relevant conduct beyond the offense of conviction does not render him ineligible to receive the accep tance of responsibility decrease. See United States v. Contreras , 59 F.3d 1038, 1040-41 (10th Cir. 1995). The district court, however, is allowed to consider whether the defendant truthfully admitted or did not falsely deny relevant conduct for which he is4 Specifically, the application notes to the sentenci ng guidelines provide

that a defendant can show his eligibility for the a cceptance of responsibility decrease by, truthfully admitting the conduct comprising the

offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct). Note that a defendant is not required to volunteer, or affirmatively admit, rele vant conduct beyond the offense of conviction in order t o obtain a reduction under [§ 3E1.1]. A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his abilityto obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contes ts, relevant conduct that the court determines to be tr ue has acted in a manner inconsistent with acceptance of responsibility. U.S.S.G. § 3E1.1, comment. (n.1). 13 accountable under § 1B1.3 of the sentencing guidelines. See U.S.S.G. § 3E1.1, comment. (n.1(a)). 4 Relevant conduct includes the reasonably foresee able acts committed by co-conspirators in furtherance of the conspiracy. See id . § 1B1.3(a)(1)(B) (defining relevant conduct to includ e “in the case of a jointly undertaken criminal activity (a criminal plan, sche me, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and om issions of others in furtherance of the jointly undertaken criminal acti vity”). Thus, a defendant’s truthful admission of relevant conduct can provide support for the § 3E1.15 At the sentencing hearing, the government contended Sicairos was the

source of the cocaine. In reaching its conclusion that Patron-Montano lied when he claimed Ernesto Garbonio supplied the cocaine, t he district court necessarily agreed with the government’s position. Although no thing in the record indicates Patron-Montano denied that Sicairos was involved in the conspiracy, PatronMontano’s lie about the source of the cocaine, none theless, constitutes a lie about relevant conduct. 14 decrease. Similarly, when a defendant lies about r elevant conduct, the lie can be the basis for denying the § 3E1.1 decrease. Here, the lie told by Patron-Montano involved the i dentity of a participant in the conspiracy. Under the sentencing guidelines , Patron-Montano is accountable for any reasonably foreseeable acts com mitted by others “in furtherance of the jointly undertaken criminal activity.” Id . When a defendant falsely identifies a participant in the criminal ac tivity, investigators are hindered or precluded from determining all acts committed in furtherance of the jointly undertaken criminal activity. Common sense, therefore, dictates that PatronMontano’s false identification of the source of the cocaine necessarily constitutes a lie about relevant conduct. 5 The district court made the following statement at the sentencing hearing when it denied the § 3E1.1 decrease:

The Court finds that the points that are being clai med by the defendant; that is, the three points for acceptance of responsibility and the two points under 5C1.2 are based upon the s ame information, that they cannot be separated. That i t would be inconsistent for this Court to say that this defend ant did not accept15

responsibility and then on the other hand to say th at he should get the two-point reduction for the safety valve becaus e of subsection 5 of 5C1.2. It is unclear from this statement whether the distr ict court believed it could not decrease Patron-Montano’s base offense level for ac ceptance of responsibility in light of its finding that Patron-Montano failed to truthfully admit relevant conduct. The application notes to the sentencing g uidelines provide, “[A] defendant who falsely denies, or frivolously contes ts, relevant conduct that the court determines to be true has acted in a manner i nconsistent with acceptance of responsibility.” U.S.S.G. § 3E1.1, comment. (n.3). Although it would be error for a district court to categorically deny the § 3E 1.1 decrease simply because a defendant lied about relevant conduct, the court can properly consider a defendant’s lie about relevant conduct in evaluatin g the defendant’s eligibility for a § 3E1.1 decrease. When a sentencing court conclu des that a defendant lied about relevant conduct, the court could, in an exce ptional case, still give a reduction for acceptance of responsibility. Cf

. id . § 3E1.1, comment. (n.4). Here, Patron-Montano has advanced no evidence clear ly demonstrating an extraordinary case for acceptance of responsibility notwithstanding his falsehood regarding relevant conduct. Patron-Montano, theref ore, failed to meet his burden of demonstrating that he is entitled to the acceptance of responsibility decrease and the district court properly denied the § 3E1.1 decrease. See Nelson , 54 F.3d16

at 1544. III. CONCLUSION The district court’s denial of the three-level decr ease for acceptance of responsibility under U.S.S.G. § 3E1.1, and the court’s denial of the two-level decrease under the safety valve provisions of U.S.S .G. §§ 2D1.1(b)(6) and 5C1.2

are affirmed

.