NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0760n.06 No. 10-1850 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. MARI O DAVI D AL FARO- FL ORES, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

Be fore : MARTI

N and GI BB ONS, Circuit J udg es; STEEH, District J udg e. *

MARTI N, BO YCE F., J R., Circuit J udg e. Mario David Alfar o-F lores appea ls his seventy

eig ht-month se ntence for possession w ith intent to distribute coca ine. For the rea sons tha t f ollow,

we a ffirm Alfa

ro-F lores’s se ntence

. Alfar o-F lores enter ed a g uilty plea to possession with intent to distribute 500 g rams or more of coca ine in violation of 21 U.S.C. § 841(a) (1) and (b)( 1)(B )(ii). Alfar o-F lores’s prese ntence repor t set forth a base offe nse level of 28, which was reduc ed by two levels for acc eptanc e of responsibility pursuant to USSG § 3E1.1(a)

. Alfar o-F lores’s total offe nse level of 26 and criminal history cate g ory of I established an advisory g uidelines rang e of six ty -three to seventy -eig ht months of im p r is o n me n

t. Alfar o-F lores filed a motion for a downwar d varia nce and a sentenc ing memorandum reque sting that the district court re duce his total of fense level by one additional level for the rela tive timeliness of his g uilty plea and two additional levels under the safe ty -valve provisions of 18 U.S.C. § 3553(f) and

The Honora

ble Geor g e Caram Steeh, United States District J udg e for the Easter n District * of Michig an, sitting by

desig nation.No. 10-1850 - 2 - USSG § 5C1.2(a). At sentenc ing, the district court rejecte d Alfar o-F l ores’ s arguments in support of a downwar d varia

nce and, afte r considering t h e s entencing fac tors under 18 U.S.C. § 3553(a) , sentenc ed him to seventy -eig ht months of imprisonm ent. This timely appea l followed. Alfar o-F lores asser ts that the district court err ed in denying him

cre dit unde r the safe ty -valve provisions a nd that the district c ourt failed to a ddress his r equests for safe ty -valve cre dit an d fo r a downwar d varia nce. Alfar o-F lores’s arg uments challeng e the proce dural reasona

bleness of his sentenc e. A s entenc e is proce durally unrea sonable if the di strict

c o u rt committed “sig nificant proce dural err or, such as failing to calc ulate (or improperly calc ulat in g ) the Guidelines rang e, trea ting the Guidelines as mandatory , failing to consider the § 3553(a) fac tors, selec ting a sentenc e based o n cl ear ly err oneous fac ts, or failing to adequately explain the chosen sentenc e.” Gall v. United States , 552 U.S. 38, 51 (2007). We revie w the district court’s decision to deny safe ty -valve rel i ef fo r cl ear err or. United States v. Hayne

s , 468 F.3d 422, 426 (6th Cir. 2006). The district court clea rly err s when we are “lef

t with the definite and firm convic tion that a mistake has bee n committed.” United States v. W ebb , 616 F.3d 605, 609 (6th Cir. 2010) (interna l quotation marks omitted). “A defe ndant bear s the burden of proving by a preponde ranc e of the evidenc e that he or she is entitled to a safe ty valve reduc tion.” Hayne s , 468 F.3d at 427. Her e, the parties ag ree d that Alfar o-F lores satisfied all but the fifth condition for application of the safet y -v al v e p rovisions: i.e., whether he had “truthfully provided to the Gover nment all information and evide n ce [he] has conce rning the offe nse or offe nses that wer e part of the same

course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f) (5); USSG § 5C1.2(a)( 5). At sentenc ing, Alfar o-F lores declined to pr esent any testimony as to his elig ibilit y for safe ty -valve relief and instead “let the rec ord speak for itself,” asser ting that “[t] he fac ts are pretty well laid outNo. 10-1850 - 3 - in the prese ntence repor

t and our memorandum” and conce ding that “[t] he g overnme nt’s rec itation of fac ts is corr ect.” Alfar o-F lores told the probation office r and other law enfor ceme nt a g ents that he enga g ed in the i nstant offe nse onl y to protec t himself and his family from harm. Acc ording to Alfar o-F lores, he owed a debt to cer tain individuals afte r the seizure of two kilogr ams of coca ine that he was transporting for them, and these individuals threa tened him and his family if he di d n o t transport the thre e kilog rams of coca ine involved in the instant offense . Alfar o-F lores asse rts that he was consistent in his acc ount of the offe nse. Howeve r his acc ount was internally inconsistent and inconsistent with other evidenc e that established he had eng ag ed in traff icking of larg e quantities of

coca ine. Ba sed on the rec ord, the district court did not clea rly err in denying safe ty -valve relief on the basis that Alfar o-F lores had not truthfully provided a ll information a nd evidenc e reg arding his offe nse. Be cause defe nse counsel declined to raise any objections to the sentenc e when aff orded the opportunity to do so by the district court at the conclusion of the sentenc ing hear ing, Alfar o-F lores’s arguments reg arding the district court’s alleg ed failure to addre ss his reque sts for safe ty -valve cre dit and for a downward variance ar e re v iewed for plain err or. See United States v. Vonner , 516 F.3d 382, 386 (6th Cir. 2008) (en ba nc); United States v. Bostic , 371 F.3d 865, 872-73 (6th Cir. 2004)

. Alfar o-F lores must demonstrate that “(1) there is an err o r; (2) the err or is clea r or obvious, rathe r than subject to rea sonable dispute; (3) the err or aff ecte d [hi s] substantial rig hts, which in the ordinary

case means it aff

ecte d the outcome of the district co u rt proce eding s; and (4) the err or seriously aff ects the fairne ss, integ rity or public reputa tion of judicial proce eding s.” United States v. Marcus , 130 S. Ct . 2159, 2164 (2010) ( internal quotation marks a nd brac kets omitted). I n support of his reque st for a two-leve l reduc tion in his total offe nse level under the safe ty

valve provisions, Alfar o-F lores asser ted that he was honest in his acc ount of the offe nse. The districtNo. 10-1850 - 4 - court que stioned Alfar o-F lores about his account, not ing that Alfaro- Flore s claimed to be “ just an innocent victim” and reminding him that “[y ]ou’ v e go t t o keep y our story straig ht here .” After hear ing the parties’ arguments reg arding safe ty -valve relief , the dis t rict court stated that “it’s not applicable here for a number of rea sons” and continued to question Alfar o-F lores about the offe nse. W h ile the district court did not make a specific finding that Alfar o-F lores had not “truthf u l l y provided to the Gover

nment all infor

mation and evidenc e [he] has conce rning the offe nse or offe nses that wer e part of t h e s am e course of conduct or of a common scheme or plan,” 18 U.S.C. § 3553(f) (5); USSG § 5C1.2(a)( 5), the district court expressly stated that “[ t ]he history and char acte ristics of Mr. Al fa ro -F lores indicate an individual who’s been dishonest

. . . and who there fore for purposes of honesty and integ rity should be g iven rathe r low g rade s.” The district court could have been more expli cit with respe ct to its denial of safe ty -valve relief , but g iven t h at “the

rec ord makes clea

r that the sentenc ing judge considere d the evidenc e and a rg uments” in imposing

a wi t h in-g uidelines sentenc e, Rita v. United States , 551 U.S. 338, 359 (2007), there was n o p l ai n

err or. Contrary to Alfar o-F lores’s asser tion, “the fac t that [he] qualified for a two-leve l acc eptanc e of re sponsibili ty

reduc tion under § 3E1.1 does not e stablish eligibility for a safe ty valve r eduction under § 5C1.2.” United States v. Adu , 82 F.3d 119, 124 ( 6th Cir. 1996). Alfar o-F lores also reque sted a one-le vel reduc tion in his total offe nse level on the basis that his g uilty plea was rela tively timely

. The g overnme nt declined to move for an additional one-le vel reduc tion under USSG § 3E1.1(b) beca use Alfar o-F lores, who enter ed his guilty plea immediately afte r the final pretria l confe renc e, failed to g ive timely notification of his intent to plead g uilty , which require d the g overnme nt to prepa re for trial. At sentenc ing, the district court hear d Alfar o-F lores’s argument that h i s total offe nse level should have been reduc ed by three rathe r than two levels for

acc eptanc e of responsibility and ag ree d with the g overnme nt’s position, stating, “th at ’s theNo. 10-1850 - 5 - g overnme nt’s call, that third point, and I think in fac t it’s a g ood ca l l

. ” T h e d i strict court’s explanation was brief, but it did not constitute plai n er ro r. Cf. United St ates v. L apsins , 570 F.3d 758, 774 (6th Cir. 2009) (“A less leng thy explanation will suffice for a within-Guidelines sentenc e when ‘ the re cord makes cle ar tha t the sentenc ing judg e conside red the [defendant’ s] evidenc e and arguments.’” (quoting Rita , 51 U.S. at 359)). Fur thermore , there is no ind i cation that the district court believed that it lacke d the authority to vary from the g uidelines based on a policy disag ree ment. See U nited States v. Simmons , 587 F.3d 348, 364 ( 6th Cir. 2009). For the fore g oing r easons, we aff irm Alfar o-F lores’s se ntence

.