FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 15, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15806

Non-Argument Calendar

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D. C. Docket No. 07-00068-CR-ORL-18DAB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS RODRIGUEZ-COLON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(October 15, 2008)

Before BIRCH, DUBINA and WILSON, Circuit Judges.

PER CURIAM:

Carlos Rodriguez-Colon appeals his 120-month mandatory minimum
sentence, which was imposed after he pleaded guilty to conspiracy to possess with

intent to distribute and to distribute five or more kilograms of cocaine, in violation

of 21 U.S.C. §§ 841(b)(1)(A), 846. On appeal, Rodriguez-Colon argues that the

district court clearly erred in finding that he did not satisfy the fifth prong of the

safety valve under section 5C1.2(a) of the U.S. Sentencing Guidelines. RodriguezColon contends that he did “truthfully provide to the Government all information

and evidence [he] had concerning the offense,” and thus qualifies for an

exemption from the mandatory minimum. U.S. SENTENCING GUIDELINES MANUAL

§ 5C1.2(a) (2007).

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

findings of fact for clear error and the application of the sentencing guidelines to

those facts de novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir.

2004) (per curiam). A district court must sentence a defendant without regard to

any statutory minimum if the defendant meets the five criteria under

section 5C1.2(a). See United States v. Brownlee, 204 F.3d 1302, 1304 (11th Cir.

2000); see also U.S. SENTENCING GUIDELINES MANUAL § 5C1.2. Section

2D1.1(b)(11) provides for a two-level decrease in the offense level if the defendant

satisfies the section 5C1.2(a) requirements. See U.S. SENTENCING GUIDELINES

MANUAL § 2D1.1(b)(11).

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Subsections 5C1.2(a)(1)-(4) state that a defendant must have no more than

one criminal history point; must not have been a leader in the offense; and, must

have been non-violent during commission of the offense. See U.S. SENTENCING

GUIDELINES MANUAL§ 5C1.2(a)(1)-(4). The district judge found that RodriguezColon satisfied the first four safety valve requirements.

However, the district judge found that Rodriguez-Colon had not satisfied the

fifth safety valve requirement. The fifth prong of the safety valve places on the

defendant “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 (quotation and citation omitted); U.S. SENTENCING

GUIDELINES MANUAL § 5C1.2(a)(5). “Thus, the burden is on the defendant to

come forward and to supply truthfully to the government all the information that he

possesses about his involvement in the offense, including information relating to

the involvement of others and to the chain of the narcotics distribution.” United

States v. Milkintas, 470 F.3d 1339, 1345 (11th Cir. 2006) (per curiam) (quotation

and alteration omitted). There is no initial burden on the government to solicit

information from the defendant. Id. at 1346. Moreover, a defendant cannot

qualify for the safety valve “merely by expressing a willingness to provide

information . . . .” Id. Thus, the burden was on Rodriguez-Colon to actually

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provide the government all of the information that he had about the narcotics

scheme.

Lies and omissions do not necessarily disqualify a defendant from

safety-valve relief as long as the defendant later makes a truthful and complete

proffer. Brownlee, 204 F.3d at 1305. A district court cannot apply the safety valve

if it determines that the defendant “withheld or misrepresented information,” even

if the information would not have aided further investigation or prosecution if

properly disclosed. United States v. Figueroa, 199 F.3d 1281, 1282-83 (11th Cir.

2000) (per curiam). In determining the honesty of a defendant, the district court

must independently assess the facts and may not rely on the government’s

assertion of dishonesty. United States v. Espinosa, 172 F.3d 795, 797 (11th Cir.

1999) (per curiam).

Here, the district court did not clearly err in finding that Rodriguez-Colon

failed to provide a full and truthful proffer. When Rodriguez-Colon sat down with

the police to provide a proffer, he lied and stated that he had not received his

Miranda warnings. The police concluded the proffer session because RodriguezColon started the session by not telling the truth. At no subsequent time did either

Rodriguez-Colon or his counsel ask the police to reconvene a proffer session. The

burden was on Rodriguez-Colon to request an opportunity to truthfully tell the

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police all he knew. See Milkintas, 470 F.3d at 1345.

Rodriguez-Colon did provide a Notice of Compliance in an attempt to

satisfy the fifth prong of the safety valve. The district court did not clearly err by

finding his written proffer inadequate. There are a number of inconsistencies

between his Notice of Compliance and his earlier confessions. For example, in his

written proffer, Rodriguez-Colon states that he had only ever opened one or two

parcels, which is belied by his earlier confession that he knew the prior contents of

four empty parcels found in his apartment. Additionally, in his written proffer,

Rodriguez-Colon states that he did not know the type or quantity of drugs

contained within the packages he transported. We cannot say that the district judge

clearly erred in disbelieving him, when Rodriguez-Colon confessed that he was

paid by the “kilo,” a term associated with cocaine, and further confessed that he

knew the drug could not be marijuana because it was a white powder.

Furthermore, Rodriguez-Colon failed in his proffer to identify all of his associates

in the narcotics scheme.

We conclude that the district court did not err in determining that RodriguezColon failed to make a complete and truthful proffer pursuant to

section 5C1.2(a)(5). Therefore, he is ineligible for safety-valve relief, and the

mandatory minimum of 10 years applies.

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CONCLUSION

Upon review of the parties’ briefs and the record, we discern no reversible

error. Accordingly, we affirm Rodriguez-Colon’s 120-month sentence.

AFFIRMED.

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