United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2009 Decided April 23, 2010

No. 08-3040

UNITED STATES OF AMERICA,

APPELLEE

v.

VINSON GALES,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cr-00060-JR-2)

Christopher S. Rhee, appointed by the court, argued the

cause for appellant. With him on the briefs were Justin S.

Antonipillai and Joshua M. Davis, appointed by the court. 

Michael T. Ambrosino, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Roy W. McLeese

III and Chrisellen R. Kolb, Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, GINSBURG, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SENTELLE.
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SENTELLE, Chief Judge: Vinson Gales pled guilty to

distribution of cocaine base and was sentenced to five years

imprisonment, the mandatory minimum. He argues on appeal

that the district court erred when it refused to sentence him to a

lesser prison term under the so-called safety valve provision.

Finding no error, we affirm.

Background

Pursuant to a plea agreement, Gales pled guilty in the

district court to unlawful possession with intent to distribute

cocaine base in violation of 21 U.S.C. § 841(a)(1). After

entering his plea but prior to sentencing, Gales attended a

debriefing session with the government, at which time,

according to Gales, he disclosed to the government all of the

information he had concerning the charged offense. During the

debriefing Gales gave to the government a description of his

drug supplier, whom he admitted he had known for over ten

years, since childhood. At a sentencing hearing a few months

later the district court judge correctly held that a conviction for

the amount of cocaine base specified in the plea agreement, five

grams, carries a mandatory minimum sentence of five years, see

21 U.S.C. § 841(b)(1)(B)(iii). The judge further stated,

however, that Gales was apparently eligible for the safety valve

provision, see U.S. Sentencing Guidelines at Section 5C1.2, 18

U.S.C. § 3553(f), because during his debriefing he had disclosed

to the Government what he knew about the charged offense.

The safety valve provision permits the district court to impose

a sentence below the mandatory minimum if, inter alia, the

defendant prior to sentencing truthfully discloses to the

government all information in the defendant’s possession

concerning the charged offense. The judge stated that pursuant

to the safety valve provision Gales’ Sentencing Guidelines range

would be 46 to 57 months instead of the five year mandatory

minimum. The judge then asked the prosecutor if he had any
3

comments, at which point the prosecutor stated that contrary to

the judge’s impression, the government did not believe that

Gales had been fully forthcoming with respect to the charged

offense and the government therefore did not consider Gales to

be safety valve eligible. In particular, the prosecutor related that

at Gales’ debriefing Gales gave untruthful information

concerning the person who supplied him with the cocaine base,

e.g., Gales stated that he only knew his supplier’s first name, but

no last name, and no address. After Gales’ attorney stated that

she disagreed with the prosecutor’s assessment of the

information given to the government by Gales, the judge opined

that he was not sure, as a matter of law, who it is that decides

what is truthful and what is not truthful when the safety valve

provision is under consideration. The court then scheduled a

full hearing on the safety valve issue.

At the safety valve hearing the judge began by reviewing

the positions of the parties. Gales asserted that he was entitled

to be sentenced pursuant to the safety valve provision because

he had told the government everything he knew concerning the

charged offense. The government contended that Gales had not

been truthful about his drug source. The judge then stated that

under the case law Gales had the burden of establishing that he

had truthfully provided to the government everything he knew

about the charged offense, but the judge also stated that he was

not sure how Gales would sustain the burden of proving that he

had not lied about how much he knew. Each of the parties then

put forth proffers. The prosecutor reiterated his position that

Gales had given to the government only minimal information

concerning his drug supplier, e.g., only a one-word name, no last

name, no telephone number, and no address; the prosecutor

opined that, considering the length of time Gales had known his

supplier, on its face Gales’ story did not make sense. Gales’

attorney then proffered that Gales had been truthful and had told

the government all he knew concerning the charged offense. At
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the close of the safety valve hearing the judge concluded that he

could not sentence Gales pursuant to the safety valve provision

because Gales had not truthfully provided to the government all

information he had concerning the charged offense, noting in

particular that Gales stated he knew his supplier only by a oneword name, no last name, no telephone number, and no address.

At a subsequent sentencing hearing, the judge again stated that

he would not sentence Gales pursuant to the safety valve

provision, finding that it was not credible that Gales could not

remember the name of his supplier or where he lived. In

passing, the judge questioned the practicality of putting the

safety valve credibility decision on the trial judge, particularly

in a situation where, as here, the only evidence put forth was a

proffer by each of the parties. The judge then sentenced Gales

to the five year mandatory minimum.

In a subsequent memorandum opinion, United States v.

Gales, 560 F.Supp. 2d 27 (D.D.C. 2008), the court further

explained its reasons for not sentencing Gales pursuant to the

safety valve provision. The opinion reiterated that the judge had

found Gales’ story implausible in that he “doubted that Gales

would have done regular business with a person about whom he

had such little information.” 560 F.Supp. 2d at 28. The court

held that under the case law the defendant has the burden of

proof “to establish, by a preponderance of the evidence, that he

is entitled to safety valve relief.” Id. (quoting United States v.

Mathis, 216 F.3d 18, 29 (D.C. Cir. 2000)). In most safety valve

cases, the court further noted, the defendant at a debriefing

relates to the government what he or she knows concerning the

charged offense, the government is satisfied, and the safety

valve is applied. But the judge stated that in cases like Gales’,

when the government believes that the defendant is withholding

information or misstating facts, then under this circuit’s

precedents the burden of proof shifts to the defendant. 560

F.Supp. 2d at 28-29 (citing Mathis, 216 F.3d at 29). The court
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ruled that the defendant had not carried that burden and was

therefore not eligible for sentencing under the safety valve

provision. 

Gales appeals the district court’s refusal to sentence him

pursuant to the safety valve provision, requesting that we vacate

his sentence and remand his case for resentencing.

Discussion

The safety valve provision, 18 U.S.C. § 3553(f),

incorporated into the United States Sentencing Guidelines

(U.S.S.G.) at § 5C1.2, permits a district court to impose a

sentence below the statutory minimum if, inter alia, the

defendant discloses to the government all information in the

defendant’s possession concerning the offense of conviction.

Prior to enactment of the safety valve provision, “defendants

convicted of certain drug crimes could receive a sentence below

the statutory minimum only on the Government’s motion to

depart downward based on a defendant’s substantial assistance

to the authorities. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1.”

United States v. Shrestha, 86 F.3d 935, 938 (9th Cir. 1996).

Congress enacted the safety valve provision in order to provide

similar sentencing relief to lower level offenders who were

willing to cooperate with the government but did not possess

information of substantial assistance. Id.

Section 5C1.2 sets forth five criteria for invocation of the

safety valve provision. The first four criteria, not at issue here,

require that the defendant be a nonviolent offender who played

a minor role in the offense. The fifth criterion requires that:

not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government

all information and evidence the defendant has
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concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or

plan, but the fact that the defendant has no relevant or

useful other information to provide or that the

Government is already 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(a)(5); 18 U.S.C. § 3553(f)(5). 

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

Cir. 2005), the Eighth Circuit noted that pursuant to the safety

valve “it is the district court which is to determine at sentencing

whether the requirements for the benefit have been met,

including whether a defendant has furnished truthful

information.” And this Circuit has previously held that the

defendant “bears the burden to establish by a preponderance of

the evidence that he is entitled to safety valve relief.” Mathis,

216 F.3d at 29. See also United States v. Stephenson, 452 F.3d

1173, 1179 (10th Cir. 2006) (concluding that “[t]he defendant

bears the burden of proving by a preponderance of the evidence

that he is entitled to safety-valve adjustment”); United States v.

Montanez, 82 F.3d 520, 523 (1st Cir. 1996) (“[I]t is up to the

defendant to persuade the district court that he has ‘truthfully

provided’ the required information and evidence to the

government.”). We review factual findings of the district court

made under the safety valve provision, including credibility

determinations, under the clearly erroneous standard. In re

Sealed Case, 105 F.3d 1460, 1462 (D.C. Cir. 1997).

Gales puts forth two main arguments on appeal: first, he

contends that the district court incorrectly applied the burden of

proof to him under the safety valve provision; and second, he

claims that the district court erred when it concluded that Gales’

story concerning his drug supplier was not credible. We address
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these arguments in reverse.

Gales argues that the district court’s determination that his

description of his drug supplier was not credible on its face is

not supported by the record. He contends that for more than 45

minutes during his debriefing he provided the government with

detailed information about his supplier and that the government

offered no testimony, other evidence, or proffer to contradict

any of his account. In support of his argument, Gales cites

Jackson v. United States, 353 F.2d 862 (D.C. Cir. 1965), for the

proposition that in order for the district court to find that

information from a witness is inherently incredible, “that

information must ‘contain[] internal contradictions and [be]

contrary to human experience.’” Appellant’s Brief at 17

(quoting Jackson, 353 F.2d at 867 (alterations in the brief)).

That is not, however, what the Jackson case held. The quoted

language stated the reason for the court’s holding that a

particular witness’s testimony should have been discredited in

that particular case. Neither Jackson nor any other case from

our circuit establishes as mandatory the criteria for which

appellant contends. The Jackson panel did, however, opine

helpfully that “[i]n some cases . . . testimony[] will simply be

too weak and too incredible, under the circumstances, to

accept.” 353 F.2d at 867.

Citing United States v. Jones, 913 F.2d 1552, 1559 n.7

(11th Cir. 1990), Gales contends that to justify its finding the

district court would have had to conclude that his account of his

drug supplier was “unbelievable on its face” or “‘so contrary to

the teachings of human experience’ that no rational person could

believe it.” Id. Like the Jackson court, the Jones court was

reciting, not the test that a district judge must employ in

determining credibility, but the standards that a court of appeals

was employing—or in that case finding inapplicable—in

reviewing the credibility determinations of a district court.
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Therefore, even if the Jones case were a binding holding of this

circuit, it would not compel us to find clear error by the district

court. We do, however, find a decision of the First Circuit

helpful in our analysis. 

In United States v. Montanez, 82 F.3d 520 (1st Cir. 1996),

the defendant, like Gales, pled guilty to charges of drug

distribution. He argued that he had fulfilled the requirements of

the safety valve provision because he had sent to the government

a letter purporting to contain information concerning the drug

sales. The government, however, claimed that the letter was

insufficient, pointing out various omissions, including who

supplied the defendant with the drugs. In affirming the district

court’s denial of relief under the safety valve, the First Circuit

stated that the government was “perfectly free to point out the

suspicious omissions at sentencing, and the district court [was]

entitled to make a common sense judgment.” 82 F.3d at 523.

So too here. Although Gales is correct that the government did

not offer any hard evidence of its own contradicting Gales’

account, the government did argue to the district court that

Gales’ inability to identify more concretely his supplier was

simply not credible. The district court, in turn, was entitled to

consider the government’s point and make reasonable inferences

from the evidence. “[N]othing prevents a district court from

deciding that it is unpersuaded of full disclosure.” Montanez, 82

F.3d at 523. The district court did not clearly err in thinking it

highly unlikely that Gales did not have any further information

on the identity of his steady supplier, whom he claimed to have

known for ten years, beyond the vague description given to the

government. We think it evident that the district court did not

commit clear error in denying him the safety valve adjustment.

See United States v. Stephenson, 452 F.3d 1173, 1181 (10th Cir.

2006).
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Having disposed of Gales’ credibility argument, we next

address his argument that the district court incorrectly applied

the burden of proof to him under the safety valve provision.

Gales contends that the district court “misunderstood and

misapplied” the burden of proof under the safety valve

provision, claiming that after the government expressed its

doubts to the district court about Gales’ story concerning his

drug supplier, the district court shifted the burden of proof to

Gales to prove that he had not lied. Gales argues that such an

“impossibly high burden” is not imposed by the law. Instead he

claims that once he made a credible showing that his story was

truthful and complete, it was the government’s burden to present

evidence showing otherwise. In support of this claim Gales

cites United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir.

1996), in which the First Circuit held that where a defendant has

credibly demonstrated that she has provided the government

with all the information she was reasonably expected to possess,

in order to defeat that demonstration, the government must come

forward with some sound reason to suggest otherwise. 96 F.3d

at 529 n. 25. The First Circuit’s holding, while not binding upon

us, seems sensible but inapplicable. As the First Circuit stated,

“[b]y this analysis, we do not suggest any change in the

defendant’s ultimate burden of proof under U.S.S.G. § 5C1.2.”

That circuit only opined that where the defendant has made such

a credible demonstration, the government then has some burden

of going forward. As the district court in this case found that the

defendant’s proffer was not credible, even if we were to follow

the First Circuit, the Miranda-Santiago rationale would not

permit us to find clear error.

Gales also looks for support in United States v. Shrestha, 86

F.3d 935 (9th Cir. 1996). In that case, the government appealed

from a district court decision applying a safety valve reduction.

The district court had held that the defendant had provided to the

Government the name of his drug source but the Government
10

argued that the defendant had perjured himself during trial and

was therefore automatically disqualified from safety valve

eligibility. The Ninth Circuit held that the district court had not

erred: as the defendant had provided the government with

complete information by the time of the sentencing hearing, as

the safety valve provision requires, the defendant was safetyvalve eligible. 86 F.3d at 940. Again, Shrestha does not support

Gales’ argument. Like the First Circuit, the Ninth Circuit

opined that “[t]he initial burden is incontestably on the

defendant to demonstrate by a preponderance of the evidence

that he is eligible for the reduction. Once he has made this

showing, however, it falls to the Government to show that the

information he has supplied is untrue or incomplete.” Id. at 940

(citation omitted). We need not determine whether we agree

with the Ninth Circuit as to the second step it sets forth

(assuming that the second quoted sentence is speaking of a

sequential step). As we stated above, Gales has not met the first

step. As Gales failed to carry his burden of establishing by a

preponderance of the evidence that he was entitled to safety

valve relief, Mathis, 216 F.3d at 29, we conclude that there was

no incorrect application by the district court of the burden of

proof to the defendant.

Finally, Gales contends that when the district court stated

that the way the safety valve works is for Gales to give the

government “the answer they want,” the court was giving the

government the same discretion it has pursuant to the

Sentencing Guidelines’ substantial assistance provision,

U.S.S.G. § 5K1.1. That is, the district court was allowing the

government to prevent him from receiving relief under the

safety valve. According to Gales, this was not Congress’ intent.

As noted above, pursuant to § 5K1.1, a departure from the

guidelines is allowed if the government has filed a motion with

the court stating that the defendant has provided substantial

assistance in its investigation of the underlying offense. In
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contrast, no such motion is required under the safety valve

provision; rather, it is the sentencing court that determines

whether the defendant has met the safety valve criteria. Here,

after considering the proffers made by the parties at the safety

valve hearing, the district court concluded that Gales had not

established that he had truthfully provided to the government all

information he had concerning the offense, and the court

therefore held it unlawful to invoke the safety valve provision.

The court supported this conclusion by holding in its

memorandum opinion that Gales was not eligible for the safety

valve because the court had found his story implausible. 560

F.Supp. 2d at 28. Consequently, we agree with the government

that the district court’s conclusion was consistent with the

underlying purposes and established criteria of the safety valve

provision.

Conclusion

For the foregoing reasons we affirm the judgment of the

district court.