NOT RECOMMENDED F OR P UBLICATION File Na me: 11a0877n.06 No. 09-6424 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v.

CHRI STI NA CARDONA, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR T H E M I D D L E D I S T R I C T O F TENNESSEE

Be fore : BATCHEL DER, Chief J udg e; SI L ER and COL E, Circuit J udg es. SILE R , Circuit J udg e. Def endant Christina Cardona pled g uilty to conspirac y to distribute and to possess with intent to distribute five kilogr ams or more of coca ine and possession with intent
to distribute five kilogr ams or more of coca ine. The district court deter mined that Cardona was not entitled to an offe nse level reduc tion for acc eptanc e of responsibility under USSG § 3E1.1(a) or the safe ty valve reduc tion under 18 U.S.C. § 3553(f) and USSG § 5C1.2. I t sentenc ed Cardona to 151 months of impris o n m ent. Cardona challeng es the district court’s denial of the acc eptanc e of responsibility

and saf ety valve r eductions. F or the re asons stated be low, we AF F IRM

.

I

. L aw enfor ceme nt office rs arr ested Cardona in 2007 in Nashville, Tenne ssee, afte r they found 23 kilogr ams of coca ine in a hidden compar tment in her truck. Cardona drove her truck from Texas to a Nashville hotel, wher e she met with a confidential informant, an underc over D E A agent, andNo. 09-6424

United States v. Cardona

a co-c onspirator n am ed Al b er t Sais. Sais had flown to Nashville to confirm the prese nce of the $500,00 0 “b u y m o ney .” Sais then drove Cardona’ s truck, with Cardona in the passeng er’ s seat, toward a war ehouse wher e the deal was to take place

. They wer e stopped en route, and a subsequent

sear ch re veale d the coc aine. Cardona was indicted on two counts: (1) conspirac y to distribute and possess with intent to distribute five kilogr ams or more of coca ine, in violation of 21 U.S.C. §§ 841(a) (1) and 846; and (2) possession with intent to distribute five kil og rams or more of coca ine, i n vi o l ation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. The indictment alleg ed the conspirac y beg an “not later than on or about J uly 10, 2007, the exact date be ing unknow n to the Gra nd J ury .” A trial was schedule d to beg in in J une 2009. I n addre ssing preliminary matters, Cardona’ s attorney reque sted a continuance beca use on the previous day , the g overnme nt informed him that it intended to introduce the testimony of Rubin He rnande z and Rosa Avalos in its case in chief

. The g overnme nt proff

ere d that these witnesses would testify that they observe d Cardona acting as a drug courie r i n 2005 and 2006 by having drug s loaded into her truck at Robert Drury ’s residence. T he witnesses believed the source of the coca ine in 2005 and 2006 was a man named Arqui. Arqui was also the source of the coca ine in the 2007 trip to Nashville. The district court denied the reque st for a continuanc e and se lected a jury

. The next day , the g overnme nt filed a motion in limine, asking the court to permit the testimony of Her

nandez and Avalos. The district cour t ruled that the testimony

was admissible a s backg round evidenc e. I mmediately afte r this ruling , Cardona pled g uilty

. During the plea proce eding , the g overnme nt prese nted the fac ts underly ing the offe nses, focusing particula rly on the - 2 -No. 09-6424

United States v. Cardona events leading to the seizure of the coca ine in 2007, but also n o t i n g t h at it would have prese nted testimony that Cardona acte d as a drug courie r g oing back to 2005. After Cardona’ s counsel noted that some of the f

acts we re disputed, the f

ollowing e x chang e occ urre d: [Dist rict Court:] Do y ou dispute the fac ts that y ou wer e driving a truck that had 23 kilogr ams of coc aine, that y ou met and discussed this matter w ith Mr. Sais, and that this cocaine w as being transporte d for sa le in the Middle District of Te nnessee ? Do y ou dispute that? [C ardona :] I did drive the vehicle up here , but I was not dr iving at the time w hen

–

. . . [Dist rict Court:] But the other fa cts stated by the Court are true? [C ardona :] Yes. When asked to explain in her own wor ds what she did, Cardona replied: Your Honor, I d rove my vehicle from Texas up here to Nashville. And I met with wh o wa s then my boy friend, Albert Sais. And we g ot pulled over, and we wer e 1 arr ested. And then there was 23 kilos discovere d in my vehicle, from what I ’ve seen in pictures and w hat has be en said by Mr. Hanna fan. A nd that’s it. At a later sentenc ing hear ing, the district court ag ree d with the gover nm ent’s position that Cardona did not qualify for the safe ty valve reduc tion beca use she had not fully cooper ated with the g overnme nt. Specifica lly , the gover nment contende d that she d i d n o t qualify beca use, during her proff er, she would discuss only the s ingle trip to Nashville, and not prior trips as a co u ri er for the

same supplier. The district court g rante d a continuance of 17 day s to g ive Cardona additional time
to ree valuate her position and decide whether to g ive a second proff er. Cardona did not meet with

Sais was not her boy friend on the date of arr est. 1 - 3 -No. 09-6424

United States v. Cardona the gover nment ag ain. I nstead, she continued to arg ue that she di d not need to provide additional information outside of the trip to Na shville in 2007. The g overnme nt called DEA Ag ent Matt Br adfor d to offe r proof that Cardona was involved in the same conspirac y dating back to 2005. Br adfor d testified that Her nandez told h i m he saw Cardona having her vehicle loaded with marijuana or coca ine at Drury ’s g ara g e in 2005. Acc ording
to Br adfor d, Drury maintained a residenc e on the Rio Gra nde for storing drug s transporte d into the United States, and both Drury and Cardona

worke d for Ar qui. Bra dford a lso testified that Avalos told him she was stopped and arr ested while transporting drug s in a truck reg istere d t o C ar d o n a. Avalos also said that Drury had talked abo u t C ar d o n a’ s being a courie r for him. Ba sed on this testimony and beca

use Cardona ref

used to discuss any

thing outside of the 2007 trip to Nashville, the district court conc luded that Cardona did not qualify

for the sa fety

valve r eduction. The district court also denied Cardona an offe nse level reduc tion for acc eptan ce of responsibility beca

use “she appea

r[ed] to be d en y i n g t h e fac ts that wer e the predic ate for the

s entencing.” The court thus calc ulated a total offe nse level of 34 and criminal history cate g ory I , resulting in a Guidelines rang e of 151 to 188 months. I t the n sentenc ed Cardona to 151 months of imprisonment. I I

. Whether a defe ndant is entitled to a reduc tion for acc eptanc e of responsibility is a “‘f actua l question, and should be acc orded g rea t defe renc e . . . .’” United States v. W ebb , 335 F.3d 534, 538 (6th Cir. 2003) (quoting United States v. Miller , 45 F. App’x 359, 364 (6th Cir. 2003)). The district court’s decision on this issue should not be disturbed unless clea rly err oneous. Id

. at 538. Be cause - 4 -No. 09-6424

United States v. Cardona the s afe ty valve determination is also a factual q u es t i o n , we apply a clearly err oneous st andar d of revie w to this determination as we ll. United States v. Hay nes , 468 F.3d 422, 426 ( 6th Cir. 2006). A. The Sentencing Guidelines provide, “I f the defe ndant clea rly demonstrates acceptance of responsibi l i t y fo r h i s o ffe nse, decr ease the offe nse level by 2 levels.” USSG § 3E1.1(a)

. The Guidelines contain a number of considerations a dist ri ct co u rt may take into acc ount when deter mining the appropr iateness of the re d uction, including “the timeliness of the defe ndant’s conduct in manifesting the acc eptanc e of responsibility ,” “voluntary termination or withdrawa l from criminal conduct or a s s o c ia ti o n s , ” a n d “ v o lu ntary surre nder to authorities promptly afte r commission of the offe nse.” Id ., cmt. n.1. Many of these considera tions do not a

pply favor ably to Ca

rdona, as she did not voluntarily withdraw or surre nder, and she decide d to plead g uilty afte r a jury had alre ady been impane led. Cardona identifies one fac tor in the Guidelines she believes applies to her. The Guidelines sug g est that a reduc tion for acc eptanc e of respons ibilit y may be appropr iate if the defe ndant “truthfully admitt[ ed] the conduct comprising the offe nse(s) of conviction, and truthfully admitt[ ed]

or [di d] not falsely deny [ ] any additional rele vant conduct

. . . .” USSG § 3 E 1

. 1 , cm t

. n . 1 (A). Cardona points to the fac t that she admitted to “driving a truc k that had 23 kilog rams of c ocaine ,” meeting and discussing “this matter” with a co-de fenda nt, and that the coca ine “wa s being transporte d for sa le in the Middle District of Te nnessee .” A defe ndant is not automatically entitled to the two-leve l decr ease simply beca use she pleads g uilty

. I nstead, she must “cle arly demonstrate” acc eptanc e of respo n s ib il it y f or the offe nse and prove - 5 -No. 09-6424

United States v. Cardona that she is entitled to the reduc tion by a preponde ranc e of the evidenc e. USSG § 3E1.1, cmt. n.2-3; United States v. Tuck

er , 925 F.2d 990, 991 ( 6th Cir. 1991). When describing the offe nse in her ow n words, Cardona misrepre sented c erta in aspec ts of the offe nse and failed to admit the intent element. She later admitted that Sais was not, in fac t, her boy friend at the time of the offe nse. By alleg ing that Sais was her boy friend, Cardona implied that the purpose of the trip from Texas to Nashville was to meet with her boy friend, rathe r t h an to transport coca ine and meet with an unknown person who would count “buy money ” for the coca ine. Additionally , the wording of Cardona’ s statement implies she only knew coca ine was in her vehicle b ec au s e she saw it in pictures and hear d about i t from the Assistant United S tates Att orney . T h i s false repr esenta tion is the kind of conduct that is “inconsistent with

. . . acc eptanc e of responsibility .” See USSG § 3E1.1, cmt. n.3. B. The safe ty valve reduc tion, found in 18 U.S.C. § 3553(f) and USSG § 5C1.2, allows a district court to disreg ard a

statutory minimum in c erta in dr

ug -re lated offe nses if five c onditions are met. A def endant be ars the bur den of pr oving by a preponde ranc e of the evidenc e that she is entitled to the reduc tion. Hayne

s , 468 F.3d at 427; United States v. Salgado , 250 F.3d 438, 459 (6th Cir. 2001). I n this case , the parties ag ree that the first four elements are met, but the United States arg ues the fifth is not. Acc ording to this fifth condition, the defe ndant must fully disclose to the g overnme nt all information he or she has “conc erning the offe nse or offe nses that wer e part of the same course of conduct or of a co m m o n s cheme or plan.” 18 U.S.C. § 3553(f) (5); USSG § 5C1.2(a)( 5). The

- 6 -No. 09-6424

United States v. Cardona purpose of this provision is to g ive a lesser participa nt in a crime cre dit for providing the g overnme nt with information rela ted to the offe nse. United States v. O’De ll , 247 F.3d 655, 674 (6th Cir. 2001). C ar d o n a argue s she is elig ible for the safe ty valve re d u ct i o n b ec au s e s h e p ro v i d ed information t o the gover

nment rela

t ed to the cocaine transport from Tex as t o Tenne ssee that took place in 2007. Her position on appea l is that she only neede d to provide information about this one trip to be elig ible for the safe ty valve reduc tion. The g overnme nt believes Cardona and the other named co-de fenda

nts (Sais and Fa

rre ra- Gra jales), along with Arqui, Drury , Her nandez, and Avalos eng ag ed in a conspirac y starting well bef ore 2007 to import coc aine f rom Mexico a

nd distribute it into the United States. I ts position is that to rec eive the safe ty valve reduc tion, Cardona was require d
to provide information she had, not only about the 2007 trip, but a lso a bout he r involvement in the conspirac y

dating back to 2005. The United St at es proff

ere d evidenc e to the district court indicating that Cardona was involved i n the conspiracy at l east as ear ly as 2005. At the s afe ty valve proffe r m eeting , Cardona ref used to g ive any information rela ted to these proff ere d witnesses or her previous dealing s as a drug courie r for Drury or Arqui. After the safe ty valve proff er meeting , the United States sent C ardona a letter explaining that she had not met the require ments of § 3553(f) (5) and was thus ineligible for the safe ty valve. The letter explained that Cardona was ineligible beca use she would
not answe r questions about prior trips she had made as a courie r for Arqui, how she beg an working for him, and how many times she was a courie r for him. The United States conclude d the letter by offe ring to meet with Cardona ag ain. The district court also g ave Cardona an additional opportunity
to provide this information to the g overnme nt, but she never took advanta g e of these opportunities. - 7 -No. 09-6424

United States v. Cardona Thus, the United States ultimately did not rec ommend a safe ty valve reduc tion for Cardona beca use it did not believe she “truly cooper ated.” See O ’De ll , 247 F.3d a t 675. To benef it from the safe ty valve provisions, a defe ndant must provide information reg arding not only the offe nse of conviction, but a lso a ny rele vant conduct. “True cooper ation is not merely

answe ring t h e questions the g overnme nt thinks to ask, but asser tively volunteering all rele vant information about one’ s offe nse or related offenses .” United States v. Dottery , 259 F. App’ x 812, 818 (6th Cir. 2008) (empha sis added) ; see USSG § 5C1.2, cmt. n.3; Salgado , 25 0 F. 3 d at 459 (holding that a def

endant must provide infor mation about other “ rele vant conduc t”). “Releva nt conduct” is “all acts an d o m i s s ions committed, aided, abetted, counsele d, commanded, induced, procur ed, or willfully cause d by the defe ndant.” USSG § 1B1.3( a)( 1)(A)

. As the district court pointed out to defe nse counsel, there is no time limit in either § 1B1.3 or § 5C1.2

o f t h e Gu idelines. The district court found that the 2005 and 2006 evidenc e was “inextricab l y intertwined with the char g ed offe nse,” and it “help[ed] complete the story as to how the conspirac y opera ted , t h e m et h o d by which drug s wer e traff icked, [and] the tie of the defe ndant to other conspirator s in this case .” I t noted that Cardona’ s ear lier drug activities involved many of the same parties and the same ty

pe of opera tion as the 2007 incid en t

. Reg ardle ss of whether Cardona’ s involvement as a d ru g co u ri er in 2005 and 2006 was part of the same conspirac y char g ed in the indictment, it qualifies as rele vant conduct. Thus, Cardona was under an obliga tion to disclose this information to qualify for the safe ty v al ve reduc tion. Be cause she ref used to do so afte r repe ated opportunities, the district court did not err in refusing to apply

the safe ty

valve r eduction. AF F IRMED

. - 8 -