In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 13-3748 & 14-1300

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

REYNALDO ORTIZ,

Defendant-Appellant.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:11-cr-00686-1 — Robert W. Gettleman, Judge.

____________________

ARGUED OCTOBER 30, 2014 — DECIDED JANUARY 12, 2015

____________________

Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.

TINDER, Circuit Judge. Reynaldo Ortiz pleaded guilty to 

conspiracy to possess heroin with the intent to distribute, see

21 U.S.C. §§ 841(a)(1), 846, and received the statutory minimum prison sentence of 120 months. He argues that his cooperation with law enforcement after his arrest qualified 

him for “safety valve” relief from the statutory minimum. 

See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The district court decided, however, that Ortiz’s cooperation did not amount to 
2 Nos.13-3748 & 14-1300

the full and truthful proffer of information required for application of the safety valve. We affirm.

I. BACKGROUND

In September 2011, a confidential informant reported to 

agents of the Drug Enforcement Administration (DEA) that 

Ortiz and his wife Linda Vargas-Jurado had offered the informant $10,000 to drive a truck containing drugs from the 

Mexican border to Chicago. The informant refused to travel 

to Mexico but agreed to transport the truck from Texas for 

$5,000. Ortiz then provided the informant with $1,000 for 

general travel expenses and the purchase of a cell phone and 

an airplane ticket to Texas. In cooperation with federal 

agents, the informant completed the trip from Texas to Chicago and delivered the truck to DEA possession. DEA agents 

found two kilograms of heroin hidden in a fire extinguisher 

inside the truck. 

When Ortiz and Vargas-Jurado did not hear from the informant on his arrival as planned, they began a frantic 

search for the informant and the truck. On September 30, 

2011, at the same time DEA agents were searching the truck, 

Vargas-Jurado called the informant to ask where he was and 

told him that she needed the truck to deliver it, but did not 

disclose to whom it was to be delivered. Then, on October 2, 

Ortiz visited the residence of the informant’s family and told 

them that he and his wife needed the truck immediately. 

Ortiz insists that no threats were made, though the government maintains otherwise. The same day, Vargas-Jurado 

drove the couple’s 16-year-old son and one of his friends to 

an area where the informant lived, and the friend shot 

someone matching the informant’s description (but actually 

an innocent bystander) multiple times. The next day, Octo-
Nos. 13-3748 & 14-1300 3

ber 3, the informant called Ortiz and Vargas-Jurado under 

the supervision of DEA agents and reported that he had 

been arrested. Ortiz told the informant that he could see the 

truck in a police parking lot, and officers confirmed that 

Ortiz and Vargas-Jurado had sped up to the parking lot in a 

vehicle matching the description of the one used in the 

shooting. As the couple drove up, Vargas-Jurado hung out 

the window attempting to take pictures of the truck on a cell 

phone. Ortiz and Vargas-Jurado were arrested shortly thereafter.

After the arrests, officers separated Ortiz and VargasJurado for questioning. Special Agent Louis Gade interviewed Ortiz and recorded notes from the interview. According to those notes, Ortiz stated that he and his wife initially had been asked by his brother-in-law, Santiago Vargas, 

to carry drugs to Chicago. Ortiz said that they had refused 

the offer but that he then recruited a friend—the confidential 

informant—to transport the drugs. When the informant 

went missing, Ortiz explained, he and his wife searched for 

the truck under the direction of an associate of Vargas who 

communicated with the couple through increasingly threatening phone calls. Ortiz provided the first name of the associate and his phone number, and Vargas-Jurado later provided his full name, Hector Alcantra-Emeterio. 

During Ortiz’s interview, another officer told Agent 

Gade that Vargas-Jurado had admitted to her role in the 

shooting. When Gade asked Ortiz about the shooting, Ortiz 

denied any involvement and claimed that his wife had nothing to do with it. Ortiz admitted, however, to visiting the informant’s family on October 2 and 3, 2011, to urge them to 

alert the informant that Ortiz and his wife needed the truck
4 Nos.13-3748 & 14-1300

immediately. He claimed that he and his wife acted out of 

fear for their safety because Alcantra-Emeterio had threatened them that “something will go wrong if he didn’t get his 

vehicle back.” Ortiz said that he was estranged from his son, 

who he believed had “some dealings” with AlcantraEmeterio and had joined the Latin Kings.

After being charged with conspiracy to distribute heroin, 

Ortiz moved to suppress his post-arrest statements on the 

basis that he had been arrested without probable cause and 

that he had not been given Miranda warnings before being 

interviewed. In support of that motion, Ortiz provided an 

affidavit asserting that he was told to answer questions 

without counsel and that he made inculpating statements 

before signing a form waiving his right to an attorney. At an 

evidentiary hearing, however, Agent Gade testified that, before Ortiz made any inculpating statements, Gade read him

the Miranda warnings and he waived his right to an attorney 

orally and in writing. Gade added that the information Ortiz 

provided about who he believed to be the source of the narcotics helped with the investigation. The district court credited Gade’s testimony and denied Ortiz’s motion to suppress.

In March 2013, nearly a year and a half after being indicted, Ortiz pleaded guilty without a written plea agreement. A 

probation officer calculated an advisory guideline imprisonment range of 151 to 188 months. That calculation included an offense level increase of two for obstruction of justice 

because, in the probation officer’s view, Ortiz made materially false statements in the affidavit he submitted in support 

of his motion to suppress. The probation officer also recom-
Nos. 13-3748 & 14-1300 5

mended that the court refuse to apply a sentencing reduction 

for acceptance of responsibility on the same basis.

At Ortiz’s sentencing in November 2013, the district 

court rejected the probation officer’s recommendations regarding obstruction of justice and acceptance of responsibility. The court credited Ortiz’s account that his actions were 

“aberrant in the sense that [he and his wife are] not drug 

dealers” and were motivated by threats against him and his 

family. In light of this “imperfect coercion,” the court decided that an increase for obstruction was not appropriate. After the court ruled on obstruction, the government did not 

oppose application of the reduction for acceptance of responsibility. The court recalculated the advisory imprisonment range as 87 to 108 months—below the statutory minimum of 120 months.

Ortiz then urged the district court to apply § 5C1.2, 

which allows for imposition of a sentence “without regard to 

any statutory minimum sentence” if the court finds that the 

defendant satisfies the five criteria in 18 U.S.C. § 3553(f). 

Those criteria include that “the defendant did not use violence or credible threats of violence or possess a firearm or 

other dangerous weapon (or induce another participant to 

do so) in connection with the offense,” 18 U.S.C. § 3553(f)(2); 

U.S.S.G. § 5C1.2(a)(2), and 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 or offenses that were part of the 

same course of conduct or of a common scheme or plan,” 18 

U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5).

The government responded that § 5C1.2 did not apply 

because Ortiz used threats of violence against the inform-
6 Nos.13-3748 & 14-1300

ant’s family and did not “come in to the government’s office 

and give a full safety valve proffer.” The government explained that it suspected—based on a police report from the 

informant’s mother—that Ortiz brought another man with 

him during his visit to the informant’s family, and that the 

other man called someone in Mexico who threatened to kill 

the informant and his family if the truck was not returned. 

In response, Ortiz challenged the police report as not credible. Additionally, in regard to his failure to come in for a 

proffer, Ortiz argued that he had provided everything he 

knew in his post-arrest statements. The district court asked 

the government what other information it would look for in 

a full proffer, and the prosecutor answered that he could not 

be sure because Ortiz never came in for additional questioning. He added that it remained unclear who the drugs were 

supposed to go to and who all was involved in arranging the 

drug transaction.

The district court concluded that, regardless of threats 

Ortiz may have made, he had not “proffered the type of information that 5C1.2 contemplates.” The court explained: “It 

isn’t just cooperation. We get a lot of cooperating folks in the 

sense that they ... could wear a wire, they could arrange a 

deal or get some information about something that happened. They still don’t get the safety valve because they haven’t actually proffered their entire knowledge of the offense.” The court added: “Saying when you get arrested, you 

know, ‘I’ll cooperate’ or even shortly after, ‘I’ll cooperate,’ 

that’s a lot different than coming in and going through all 

the matters that [the prosecutor] just mentioned. So I cannot 

say there’s a safety valve here.” The court thus rejected application of the safety valve and imposed the statutory minimum of 120 months’ imprisonment.
Nos. 13-3748 & 14-1300 7

Fourteen days after sentencing, on December 6, 2013, 

Ortiz moved for a reduced sentence under Federal Rule of 

Criminal Procedure 35, offering to present himself for a full 

proffer of information and arguing that the court failed to 

address his mitigating arguments. On January 22, 2014, the 

district court held a hearing on the motion. At the hearing, 

the government explained that, having met with Ortiz to 

hear his proffer, it refused to move for a reduced sentence 

under Rule 35(b) because Ortiz had not provided any information beyond that provided in his initial statement. The 

court then denied Ortiz’s motion, reasoning that, without a 

motion for a reduction from the government, the court had 

no authority to reduce Ortiz’s sentence under Rule 35. Ortiz 

appeals both the original judgment against him and the denial of his Rule 35 motion.

II. ANALYSIS

Ortiz’s primary argument on appeal is that the district 

court erred in concluding that he did not satisfy the requirements of § 5C1.2(a)(5) by providing full and truthful 

information about his offense. He emphasizes that Agent 

Gade testified that the information he provided after his arrest was helpful to the investigation. He maintains that he 

did not have any additional information about the recipient 

of the heroin or any other aspect of the offense. The completeness of his initial statement is confirmed, he argues, by 

the fact that nothing useful was gleaned from his postsentencing proffer.

To be eligible for safety-valve relief, Ortiz had to prove 

by a preponderance of the evidence that he provided the 

government with “all information” he knew about his offense or related to the same course of conduct or common 
8 Nos.13-3748 & 14-1300

scheme or plan. See United States v. Acevedo-Fitz, 739 F.3d 

967, 970 (7th Cir. 2014); United States v. Olivas-Ramirez, 487 

F.3d 512, 517 (7th Cir. 2007). “A defendant is not entitled to 

the safety valve when he provides only limited information 

instead of complete disclosure.” Acevedo-Fitz, 739 F.3d at 972; 

see United States v. Montes, 381 F.3d 631, 636 (7th Cir. 2004)

(holding that the “plainly broad language [of § 5C1.2(a)(5)] 

suggests that any and all information that the defendant 

possesses concerning the offense must be provided to the 

Government”) (quotation marks omitted). We review for 

clear error the district court’s findings regarding Ortiz’s eligibility for the safety valve. See Acevedo-Fitz, 739 F.3d at 970; 

Olivas-Ramirez, 487 F.3d at 516.

Ortiz has presented no persuasive reason to find clear error here. The district court gave a nuanced explanation of 

why it found that Ortiz had offered some cooperation but 

did not provide a full proffer of all information he knew. 

Ortiz’s mere assertion that he does not have additional information is not enough to undermine the court’s finding. 

See United States v. Nunez, 627 F.3d 274, 280 (7th Cir. 2010)

(“A defendant ‘cannot meet [the safety valve] burden if the 

government challenged the truthfulness, accuracy, or completeness of his statements and he produced nothing to persuade the district court that his disclosures were truthful and 

complete.’”) (quoting United States v. Martinez, 301 F.3d 860, 

866 (7th Cir. 2002)). As the government notes, there were 

many facts left unknown here, including where the truck 

was supposed to be delivered if recovered and who would 

pick it up, and Ortiz did not assist the government’s investigation during the two years that passed from his initial postarrest statements in October 2011 until his sentencing in November 2013. Ortiz emphasizes that the information he pro-
Nos. 13-3748 & 14-1300 9

vided after his arrest proved useful to the investigation, but 

for purposes of the safety valve, “information need not necessarily be useful to the government, as long as a defendant 

made a good faith effort to cooperate fully.” United States v. 

Corson, 579 F.3d 804, 814 (7th Cir. 2009). The district court 

committed no clear error in finding that Ortiz’s failure to 

present himself for additional proffers of information undermined his assertion of full, good faith cooperation.

We addressed a similar situation in United States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000). There, as with

Ortiz, Galbraith gave an initial statement to law enforcement 

after his arrest but did not give any additional proffers expanding on that statement. Id. Information from Galbraith’s 

codefendants, however, suggested that there was more to 

the offense than Galbraith let on. Id. The district court thus

found that Galbraith “did not truthfully provide all information he had,” and we upheld that finding. Id. The same 

analysis applies here, where the government’s investigation 

raised questions about the destination for the drugs and possible threats to the informant’s family, and yet Ortiz did not 

supplement his initial statement before sentencing.

Ortiz contends that his post-sentencing proffer entitled 

him to the safety valve, but we disagree. The safety-valve 

provisions clearly require that a defendant’s proffer of information occur “not later than the time of the sentencing 

hearing.” Moreover, as the government emphasizes, by the 

time Ortiz actually presented himself for a proffer, more 

than 14 days had passed since sentencing. At that point, the

district court lacked jurisdiction to reduce Ortiz’s sentence 

under Rule 35 without a motion from the government. 
10 Nos.13-3748 & 14-1300

See United States v. Smith, 438 F.3d 796, 799 (7th Cir. 2006);

United States v. Salinas, 365 F.3d 582, 586 (7th Cir. 2004).

There is also evidence that, just a day before Ortiz’s wife 

and son were involved in trying to shoot the informant, 

Ortiz brought a man to the informant’s family who, through 

a phone call, threatened death to the informant and his family. Using credible threats of violence in connection with an 

offense disqualifies a defendant from safety-valve relief, 18 

U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2), and we have upheld even a single intimidating confrontation as enough to 

constitute a credible threat, see United States v. Johnson, 497 

F.3d 723, 726 (7th Cir. 2007). The district court had no need 

to make formal findings about the credibility of the government’s evidence about the threats given its conclusion that 

Ortiz failed to make a full proffer, and we express no opinion about the evidence’s reliability. But we note that the alleged threats, if substantiated, would have provided an alternative ground for denying safety-valve relief.

Lastly, Ortiz argues that the district court failed to consider his mitigating arguments related to the factors in 18 

U.S.C. § 3553. But the district court properly refused to apply 

the safety valve, so the court lacked discretion to impose a 

sentence below the statutory minimum. See United States v. 

Zuno, 731 F.3d 718, 724 (7th Cir. 2013); United States v. Brucker, 646 F.3d 1012, 1016 (7th Cir. 2011). Additionally, because 

the statutory minimum controls, a remand for further consideration of sentencing factors could not result in a lesser 

sentence. See United States v. Douglas, 569 F.3d 635, 636 (7th 

Cir. 2009).

Accordingly, Ortiz’s sentence is AFFIRMED.