*The Honorable Roger L. Wollman became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on April 24, 1999. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2761

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Guillermo Perales Morones, *

*

Defendant - Appellant. *

___________

Submitted: February 9, 1999

Filed: July 1, 1999 

___________

Before WOLLMAN,* LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

LOKEN, Circuit Judge.

Guillermo Morones pleaded guilty to conspiracy to possess with intent to

distribute more than one hundred kilograms of marijuana, an offense calling for a

mandatory minimum sentence of five years in prison. See 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), 846. In 1994, Congress enacted a “safety valve” sentencing statute to

mitigate the harsh impact of mandatory minimum sentences on less culpable offenders.

Under the safety valve, a defendant is sentenced under the Guidelines, without regard
1The HONORABLE D. BROOK BARTLETT, United States District Judge for

the Western District of Missouri.

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to an applicable mandatory minimum sentence, if the court finds that he satisfies five

criteria. One is 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 concerning the offense.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(5). Morones

appeals the district court’s1 decision not to grant safety valve relief because he recanted

his initial explanation of a cohort’s role in the offense. We affirm.

The relevant facts can be briefly summarized. After arranging to ship almost

nine hundred pounds of marijuana from El Paso to Kansas City and Chicago, Juan

Franco-Leal flew to Kansas City to supervise the first delivery. Unknown to FrancoLeal, his deliverymen were confidential informants cooperating with Drug Enforcement

Administration agents. One informant drove the marijuana to a truck stop in Kansas

City, where Franco-Leal arrived in a car driven by Maximo Morales, followed by a van

driven by Morones. The informant and Franco-Leal negotiated the delivery and then

entered the van. Franco-Leal instructed Morones to hand $1,500 to the informant.

Franco-Leal returned to the car driven by Morales, while Morones positioned the van

next to the informant’s truck. After Morones transferred the first box of marijuana to

his van, all three were arrested.

When arrested, Morones agreed to cooperate and was immediately interviewed

in Spanish by DEA Agent Jaime DelaRosa. Morones admitted his role in the offense --

helping Franco-Leal move boxes knowing they possibly contained illegal narcotics.

DelaRosa also asked what role Morales played in the transaction. Agent DelaRosa’s

written report of the post-arrest interview relates the following:
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4. Guillermo MORONES stated that on September 7, 1997, he and a

friend, Maximo MORALES-Lopez, picked up Juan FRANCO at the hotel

[and] the three of them went to a Mexican restaurant. Juan FRANCO

wanted to know if Guillermo MORONES was willing to help him out by

moving some boxes. Guillermo MORONES stated that he agreed to

help. . . . JUAN FRANCO told Guillermo MORONES that he would be

paid fifteen hundred dollars. Guillermo MORONES stated that Maximo

MORALES-Lopez asked to help Juan FRANCO. It was agreed that

Maximo MORALES-Lopez would help and he and Guillermo

MORONES would split the fifteen hundred dollars, each receiving sevenhundred and fifty dollars.

Based upon this interview, the government indicted Morales for participating in the

marijuana transaction. Some months later, Morones advised that Morales was not

involved in the marijuana delivery. The government then dismissed the indictment

against Morales for lack of evidence. 

After Morones pleaded guilty, the government opposed safety valve relief

because he did not truthfully provide all information concerning the role of Morales in

the offense. At sentencing, the district court heard evidence on the safety valve issue.

Morones testified first. Admitting that Agent DelaRosa asked about Morales’s

involvement, Morones disagreed with three aspects of DelaRosa’s interview report.

First, Morones testified that Morales was away from the table at the Mexican restaurant

whenever Morones and Franco-Leal discussed the marijuana delivery. Second,

Morones testified that Morales never asked if he could help Franco-Leal. Third,

Morones testified that he agreed to pay his friend Morales for providing transportation,

not one-half of $1500 for helping deliver marijuana. 

Testifying for the government, Agent DelaRosa confirmed the accuracy of his

interview report. DelaRosa testified that Morones said Morales asked to help with the

delivery, and that Morones agreed to split the $1500 with Morales. Based upon
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Morones’s statements, DelaRosa understood that Morales was present during the entire

discussion at the Mexican restaurant. Morones never said during the interview that

Morales was not involved in the marijuana transaction. The district court credited

Agent DelaRosa’s testimony. Had Morones asserted Morales’s innocence during the

interview, the court observed, Agent DelaRosa surely would have included that critical

assertion in his interview report. The court found that Morones had not met his burden

of proving that he truthfully provided all information to the government because:

he’s denying, in essence, that [DelaRosa’s] report is truthful. Based on

everything I’ve heard here today I believe the report is accurate and,

therefore, his effort to say it isn’t accurate does not persuade me that he

is truthfully telling the government about what happened.

A defendant has the burden to prove he is entitled to safety valve relief by a

preponderance of the evidence. To qualify, he must truthfully disclose all information

concerning the crime, “including the identities and participation of others.” United

States v. Romo, 81 F.3d 84, 85-86 (8th Cir. 1996). As the First Circuit explained in

United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996):

Defendants often have reasons, such as loyalty to a confederate or

fear of retribution, for not wanting to make full disclosure. But full

disclosure is the price that Congress has attached to relief under the

statute, and the burden remains on the defendant to prove his entitlement.

Conceding this point, Morones argues first that he did truthfully provide all information

because Agent DelaRosa misunderstood what Morones said during the post-arrest

interview about Morales’s involvement in the transaction. This is in essence an attack

on the district court’s credibility findings, which we review for clear error. See United

States v. Tournier, 171 F.3d 645, 647 (8th Cir. 1999) (standard of review). Having

carefully reviewed Agent DelaRosa’s interview report and the testimony at the
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sentencing hearing, we conclude the district court’s finding that the interview report

reflects what Morones told Agent DelaRosa was not clearly erroneous. 

Alternatively, Morones argues he is entitled to safety valve relief because he told

the full truth concerning Morales’s involvement in the initial interview, regardless of

his later recantation. He relies upon United States v. Shrestha, 86 F.3d 935 (9th Cir.

1996). In that case, a heroin courier initially admitted his knowing participation in a

drug transaction and disclosed what he knew about others involved in the drug

trafficking. But at trial and at sentencing defendant denied knowing he was

transporting drugs prior to his arrest. The district court nonetheless granted safety

valve relief, and the government appealed. The Ninth Circuit affirmed. It upheld the

finding that defendant had not withheld other material information and concluded:

“The fact that Shrestha denied his guilty knowledge at trial and at sentencing after his

confession to the customs agents does not render him ineligible for the safety valve

reduction as a matter of law.” Id. at 940. Schrestha was a difficult case because it

involved the need to apply the safety valve statute so as not to interfere with a

defendant’s right to testify at trial, a factor not involved in this case. Outside the trial

context, the Ninth Circuit distinguished Shrestha in affirming the denial of safety valve

relief to a defendant who recanted his initial identification of others as his drug sources

in United States v. Lopez, 163 F.3d 1142, 1144 (9th Cir. 1998). See also United States

v. Verners, 103 F.3d 108, 111 (10th Cir. 1996). 

Leaving aside the trial testimony question posed by Shrestha, a defendant who

recants or materially changes his story prior to sentencing can present a difficult safety

valve issue for the sentencing court. On the one hand are cases where the defendant

withholds material information or dissembles until the eve of sentencing, but is then

completely truthful. Safety valve relief is not precluded simply because a tardy

disclosure is less helpful to the government. See Tournier, 171 F.3d at 647-48.

Although the defendant in this type of case may have told the government inconsistent

stories, it serves the purposes of the safety valve to grant relief if the sentencing court
2Of course, a defendant who cynically waits to see what the government can

prove at sentencing before telling all is unlikely to warrant safety valve relief. See

United States v. Long, 77 F.3d 1060 (8th Cir.), cert. denied, 519 U.S. 859 (1996).

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is persuaded that the last story is complete and truthful.2 On the other hand are cases

where the defendant, like Morones, initially tells the government the whole truth but

later recants. This type of defendant is no more entitled to safety valve relief than the

defendant who never discloses anything about the crime and its participants. In this

type of case, if the sentencing court finds that the initial recanted story was truthful, or

that in recanting the defendant has been untruthful, the court’s ultimate finding that

defendant has not “truthfully provided to the Government all information and evidence

the defendant has concerning the offense” is not clearly erroneous. 

Here, the district court found that Morones was not truthful when he denied

telling Agent DelaRosa about Morales’s involvement in the offense, and therefore that

Morones had not truthfully provided the government all evidence concerning the

offense. As those findings are not clearly erroneous, the judgment of the district court

must be affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.