United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2011 Decided December 27, 2011

No. 10-3094

UNITED STATES OF AMERICA,

APPELLEE

v.

DAVID NANA DANSO,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cr-00281-2)

Jerry Ray Smith Jr., appointed by the court, argued the 

cause and filed the briefs for appellant. John O. Iweanoge II

and A. J. Kramer, Federal Public Defender, entered 

appearances.

John L. Hill, Assistant U.S. Attorney, argued the cause 

for appellee. With him on the brief were Ronald C. Machen 

Jr., U.S. Attorney, and Roy W. McLeese III and John K. Han, 

Assistant U.S. Attorneys. 

Before: BROWN, Circuit Judge, and WILLIAMS and 

GINSBURG, Senior Circuit Judges.
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Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: To be eligible for the 

so-called “safety-valve” reduction in sentence under 18

U.S.C. § 3553(f), a defendant must “truthfully provide[] to the 

Government all information and evidence the defendant has 

concerning the offense.” 18 U.S.C. § 3553(f)(5). Appellant 

David Danso pleaded guilty to a relatively simple drug deal—

he arranged a sale between one supplier and one buyer. But 

the deal also involved two samples, one acquired for 

marketing purposes from the supplier of the drugs ultimately 

sold (but never actually delivered to the buyer here), the other

delivered to the buyer (but acquired from an apparently 

unrelated source). The question is whether Danso could 

qualify under § 3553(f)(5) without disclosing the fate of the 

sample provided by the seller but not delivered in this 

transaction, or the origin of the sample that he did deliver to 

the buyer. The district court held that he could not qualify; we 

agree, and thus affirm. 

Danso pleaded guilty to conspiracy to distribute and 

possess with intent to distribute 100 grams or more of a 

mixture and substance containing heroin, in violation of 21 

U.S.C. §§ 841, 846. In his factual proffer, he admitted 

brokering a drug deal between Mouloukou Toure (the 

supplier) and a confidential witness (“CW”) (the purported 

buyer). Toure had given Danso a sample of heroin to 

distribute to potential customers. But when Danso, Toure, 

and the CW met to discuss the deal, Danso told Toure he had 

not given the CW Toure’s sample, but rather had used another 

sample and had told the CW that Toure’s heroin was better. 

The three then agreed to proceed with the deal; they

completed it later that day. 
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In anticipation of sentencing, the government took the 

position that Danso, in a special safety-valve debriefing, had 

not provided all the information required for satisfying 

§ 3553(f)(5). Specifically, it argued that to be eligible Danso 

should at a minimum have disclosed (1) the identity of the 

person from whom Danso had received the non-Toure sample, 

and (2) the identity of the person to whom he gave the Toure 

sample. Gov’t’s Mem. in Aid of Sentencing Re: 

Inapplicability of Safety Valve ¶ 15 (Aug. 19, 2010), 

Appellant’s Appendix (“App.”) 37-38.

The district court denied the safety-valve reduction, 

relying on Danso’s failures to provide (among other things) 

the identities of the non-Toure-sample supplier and the Touresample recipient. It concluded that Danso failed to show “that 

he truthfully revealed what he [knew] about the circumstances 

of the offense of conviction.” Sentencing Tr. 29 (Sept. 8, 

2010), App. 88. The court imposed a 60-month sentence, the 

mandatory minimum under the Sentencing Guidelines in the 

absence of safety-valve eligibility. 

It is the defendant’s burden to establish by a 

preponderance of the evidence that he is entitled to safetyvalve relief. United States v. Mathis, 216 F.3d 18, 29 (D.C. 

Cir. 2000). We review the district court’s legal conclusions 

de novo, and its factual findings, including credibility 

determinations, for clear error. See In re Sealed Case, 105 

F.3d 1460, 1462 (D.C. Cir. 1997); United States v. Gales, 603 

F.3d 49, 53 (D.C. Cir. 2010). 

* * *

The parties agree that Danso met four out of the five 

requirements for safety-valve eligibility. The disputed fifth 

provision requires that
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not later than the time of the sentencing hearing, the 

defendant has truthfully provided 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, 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.

18 U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(a)(5). The 

last half of the provision, the entire “but . . .” clause, manifests 

the drafters’ effort to address the anomaly presented by 

§ 5K1.1 of the Sentencing Guidelines, which by requiring 

“substantial assistance” to the government tends to render 

small fry ineligible—they are likely to be relatively 

uninformed. See Gales, 603 F.3d at 52; United States v. 

Shrestha, 86 F.3d 935, 938 (9th Cir. 1996). Danso contends, 

as every circuit to address the issue has held, that the relevant 

information can be provided any time before sentencing, even 

if the defendant previously lied about it. See United States v. 

Schreiber, 191 F.3d 103, 106 (2d Cir. 1999); United States v. 

Powell, 387 F. App’x 491, 494-95 (5th Cir. 2010); United 

States v. Mejia-Pimental, 477 F.3d 1100, 1105-06 (9th Cir. 

2007); United States v. Brownlee, 204 F.3d 1302, 1305-06 

(11th Cir. 2000); United States v. Tournier, 171 F.3d 645, 

647-48 (8th Cir. 1999); United States v. Gama-Bastidas, 142 

F.3d 1233, 1242-43 (10th Cir. 1998); see also United States v. 

Bermudez, 407 F.3d 536, 543 (1st Cir. 2005) (assuming 

without deciding same); but see United States v. Alvarado, 

326 F.3d 857, 862 (7th Cir. 2003) (reserving question whether 

“eleventh-hour cooperation immediately before the sentencing 

hearing begins will always be regarded as timely”). The 

government appears to acquiesce. 
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There is also no dispute as to what information Danso did 

and did not provide the government. The two primary pieces 

of information not disclosed and at issue on appeal are the 

same two identified by the government in its sentencing 

memorandum. The open question is whether those items 

qualify as “information . . . concerning the offense.” We 

discuss each in turn.

Non-Toure sample. Danso did not dispute at sentencing, 

or on appeal, that he failed to provide the government with the 

identity of this sample’s provider. Sentencing Tr. 28, App. 

87. Rather, he argues that “there was insufficient evidence for 

concluding that Mr. Danso’s conduct in relation to that sample 

was part of the conspiracy offense he was being sentenced 

on,” Appellant’s Br. 18-19, so that his naming the supplier 

wasn’t essential to safety-valve eligibility.

Danso reads the district court’s decision as relying on the 

fifth criterion’s reference to information concerning the 

offense of conviction itself; i.e., he understands the court not 

to have classified the missing information as “concerning . . . 

offenses that were part of the same course of conduct or of a 

common scheme or plan” (the latter portion of § 3553(f)(5)’s 

opening clause). We agree. So Danso’s argument that the 

sample played no role in the offense of conviction is relevant. 

The trouble for Danso is that the evidence contradicts his 

factual premise. Danso’s factual proffer in support of his 

guilty plea explains that when Danso, the CW, and Toure met 

to negotiate the deal, 

Toure asked Danso if Danso had given his “sample” to 

the CW. Danso stated that he had given the CW a 

“sample,” but not Toure’s sample. Danso stated that he 

had told the CW that Toure’s heroin is much better.
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App. 28. See also Appellee’s Br. 18. In short, Danso himself 

told the government that he used the other sample both 

directly and as a benchmark for proclaiming the superiority of 

Toure’s drugs. So the sample was integrally linked to the 

offense of conviction, and Danso’s acquisition of it “concerns 

the offense.” Thus we think the case falls comfortably within 

the range of cases denying safety-valve treatment for a 

defendant who declines to identify his supplier, see, e.g., 

Gales, 603 F.3d at 53-54, even though ultimately the sample 

in question was not part of the direct “chain of distribution” 

from Toure to the CW, see United States v. Tate, 630 F.3d 

194, 202 (D.C. Cir. 2011).

Danso’s most analytical argument is that because it would 

have been consistent with the proffer for him to have given 

the sample to the CW before the onset of the conspiracy, it 

follows that such conduct was not “part” of the offense. 

Appellant’s Br. 18, 21-22. But given that Danso used the 

sample for marketing the Toure supply, information about its 

acquisition “concerned” the offense. In fact, information 

about many acts or circumstances might “concern” an offense 

but not be a “part” of it in any legal sense. If the government 

asked a bank robber how he got access to the getaway car, and 

the truthful answer were an (innocent) friend or a car-rental 

agency, the information would still “concern” the offense. 

Toure sample. The district court also found that Danso 

“[did] not rebut that he refused to answer any question about 

whom he gave the Toure heroin sample to.” Sentencing Tr. 

29, App. 88. Danso does not contest the propositions that 

Toure gave him the sample for the purpose of recruiting 

customers and that, when asked to whom he gave the sample, 

“[h]e refused to answer that question.” Sentencing Tr. 26, 

App. 85. On appeal Danso in effect invokes the rule of trial 

practice against questions that assume a fact not in evidence 

(the most infamous example being, “When did you stop 
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beating your wife?”). He points out that “no evidence was 

ever presented or referred to to indicate that Mr. Danso had 

ever given the sample to anyone.” Appellant’s Br. 24. True 

enough. But Danso offers nothing to support the idea—which 

flies in the face of common sense—that he could not have 

responded by truthfully telling the government agents his 

actual method of disposition, whatever it may have been: 

transferring it to a third party, dropping it into a river, hiding it 

under a stone. He gives no reason to think the government’s 

framing of the question precluded a truthful response slightly 

beyond its literal wording. 

Apart from that, Danso’s argument about the Toure 

sample adds nothing to what we just considered in relation to 

its converse. 

In sum, we find that both the identity of the non-Toure 

supplier and what Danso did with the Toure sample are pieces 

of information that concerned his offense of conviction; his 

providing them to the government on request was thus 

essential to safety-valve relief. Thus we need not consider 

the government’s arguments that Danso’s responses (or nonresponses) to other questions supplied additional bases for 

rejecting the safety valve. Danso’s omission of the above 

items clearly represented a failure to provide “all information 

. . . concerning the offense.” 

* * *

The judgment of the district court is

Affirmed.