[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-14894

Non-Argument Calendar

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D.C. Docket No. 8:15-cr-00056-SCB-EAJ-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

GENERO PEREZ-ALONSO, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(March 10, 2017)

Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM: 

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Genero Perez-Alonso appeals his 120-month sentence, imposed after 

pleading guilty to one count of conspiracy to distribute and to possess with the 

intent to distribute methamphetamine and cocaine, in violation of 21 U.S.C. §§ 846 

and 841(a)(1), (b)(1)(A); one count of distributing cocaine, in violation of 21 

U.S.C. § 841(a)(1), (b)(1)(C); one count of distributing methamphetamine, in 

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); and one count of distributing 

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). On appeal, 

Perez-Alonso first argues the district court erred by applying the two-level firearm 

enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1). Second, he argues that the court 

erred by determining that application of the firearm enhancement necessarily 

precluded safety-valve relief under 18 U.S.C. § 3553(f). After review,1 we vacate 

the district court’s sentence and remand.

I. DISCUSSION

A. Firearm Enhancement

Perez-Alonso contends the court erred when it concluded the government 

satisfied its burden of showing that his firearm possession was in furtherance of the 

drug offense. Under § 2D1.1(b)(1), a defendant’s offense level is increased by two 

 1 We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1) for clear 

error, and we review de novo the application of the Guidelines to those facts. United States v. 

Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (quoting United States v. Gallo, 195 F.3d 1278, 

1280 (11th Cir. 1999)). When reviewing a district court’s safety-valve decision, we review the 

district court’s factual determinations for clear error and its legal interpretation of the relevant 

statutes and sentences guidelines de novo. United States v. Poyato, 454 F.3d 1295, 1297 (11th 

Cir. 2006) (quoting United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir.2004)).

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levels if a dangerous weapon was possessed. U.S.S.G. § 2D1.1(b)(1). To justify 

a firearms enhancement, the government must establish by a preponderance of the 

evidence either (1) that the firearm was present at the site of the charged conduct, 

or (2) that the defendant possessed a firearm during conduct associated with or 

relevant to the offense of conviction. United States v. Stallings, 463 F.3d 1218, 

1220 (11th Cir. 2006); see also U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). If the 

government meets its burden, then the burden shifts to the defendant to show that a 

connection between the weapon and the offense was “clearly improbable.” Id. 

Perez-Alonso argues that the sole basis for applying the firearm 

enhancement was the uncorroborated hearsay statements of Noel Norato-Perez, his 

co-conspirator, and that relying on such speculative, unreliable hearsay was error. 

In determining whether factors exist that would enhance a defendant’s sentence, a

sentencing court may consider any information, including hearsay, regardless of its 

admissibility at trial, provided that (1) the evidence has sufficient indicia of 

reliability, (2) the court makes explicit findings of fact as to credibility, and (3) the 

defendant has an opportunity to rebut the evidence.

2

 United States v. Ghertler, 605 

F.3d 1256, 1269 (11th Cir. 2010) (quoting United States v. Baker, 432 F.3d 1189, 

 2 To prevail on a challenge to a sentence based on the consideration of hearsay, a 

defendant must show (1) that the challenged evidence is materially false or unreliable and (2) 

that it actually served as the basis for the sentence. Ghertler, 605 F.3d at 1269. Here, the record 

clearly establishes that the hearsay evidence served as the basis for the firearm enhancement.

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1253 (11th Cir. 2005)); see also United States v. Anderton, 136 F.3d 747, 751 

(11th Cir. 1998); U.S.S.G. § 6A1.3(a).

1. Indicia of reliability

In this case, Norato-Perez’s statements do not have sufficient indicia of 

reliability. Id. First, the statements themselves bore no indicia of reliability; for 

example, Norato-Perez was not speaking against his own interest, nor were his 

statements independently corroborated by other testimony or even other hearsay 

statements. See United States v. Lee, 68 F.3d 1267, 1275–76 (11th Cir. 1995)

(vacating and remanding district court sentence where district court made no 

factual finding as to credibility of hearsay evidence and that the mere fact that the 

hearsay statement was against interest did not constitute “sufficient indicia of 

reliability); United States v. Gordon, 231 F.3d 750, 760 (11th Cir. 2000) (finding 

sufficient indicia of reliability where hearsay statements from multiple parties were 

consistent with one another and with trial testimony). Indeed, as Perez-Alonso 

points out, if anything, Norato-Perez had an incentive to exaggerate PerezAlonso’s involvement in the conspiracy so as to receive leniency in his own 

criminal proceedings. Second, the facts in the record do not lend independent 

credibility to Norato-Perez’s statements. Police found guns in Perez-Alonso’s 

home when they arrived to arrest him, but they recovered no drugs. Further, 

despite extensive surveillance of Perez-Alonso, nothing in the record indicates he 

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conducted drug transactions out of his home. Instead, the presentence 

investigation report only records instances of Perez-Alonso delivering drugs to his 

customers. Moreover, at the sentencing hearing, the probation officer informed the 

court that she did not apply the firearm increase because “there were no drugs [at 

the residence] and we didn’t have any material showing that any drug transactions 

took place in the defendant’s residence.” The only evidence in the entire record 

tending to show a connection between the guns and Perez-Alonso’s drug activity 

was Norato-Perez’s unsubstantiated hearsay recounted by the Government’s DEA 

witness. These facts do not show sufficient indicia of reliability under our case 

law. See Lee, 68 F.3d at 1275–76.

2. Credibility findings

Second, the court failed to make any explicit findings of fact as to 

credibility. Ghertler, 605 F.3d at 1269. It made no effort to “reveal the reasons 

that led it to conclude that [Norato-Perez’s] statements were reliable.” Lee, 68 

F.3d at 1277. While it is true we do not necessarily reverse due to the absence of a 

credibility finding “where the reliability of the statements is apparent from the 

record,” see United States v. Docampo, 573 F.3d 1091, 1098 (11th Cir. 2009) 

(quoting Gordon, 231 F.3d at 761), that is not the case here. The statements were 

not inconsistent with the rest of the record, but it can hardly be said that the record 

corroborated them; to the contrary, the record only contained evidence of PerezCase: 15-14894 Date Filed: 03/10/2017 Page: 5 of 8 
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Alonso delivering drugs to Norato-Perez at locations other than Perez-Alonso’s 

residence. It did not contain anything to the effect that (1) Perez-Alonso sold drugs 

out of his house, where the guns were, (2) Perez-Alonso sold or gave a gun to 

Norato-Perez, or (3) Perez-Alonso’s son was a part of the conspiracy or delivered 

drugs to Norato-Perez when Perez-Alonso was unavailable. The only evidence for 

these claims came from Norato-Perez’s hearsay statements.

3. Opportunity to rebut the evidence

Finally, Perez-Alonso was given no opportunity to rebut Norato-Perez’s 

assertions. Defense counsel indicated it wanted an opportunity to cross-examine 

Norato-Perez. But since the Government never called Norato-Perez to testify, 

Perez-Alonso was denied “an opportunity to rebut the evidence.” Ghertler 605 

F.3d at 1269.

Contrary to the Government’s suggestions, Perez-Alonso does not have the 

burden to show “improbability” until the government has met its burden to 

demonstrate that “the firearm was present at the site of the charged conduct or 

prove that the defendant possessed a firearm during conduct associated with the 

offense of conviction.” See Stallings, 463 F.3d at 1220–21 (11th Cir. 2006) (“The 

government must show some nexus beyond mere possession between the firearms 

and the drug crime.”). Only after such a nexus is shown does the defendant have 

the burden to show improbability. 

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The district court clearly erred in relying on Norato-Perez’s hearsay 

testimony alone to apply the firearm enhancement. Accordingly, we remand 

Perez-Alonso’s sentencing to the district court to make further findings as to the 

reliability of Norato-Perez’s hearsay statements. See Lee, 68 F.3d at 1276.

B. Safety-Valve Relief

Next, Perez-Alonso argues that the court erred by determining that safety 

valve relief was necessarily precluded by the application of the firearm 

enhancement, and he should have been granted safety valve relief.

The “safety valve” of 18 U.S.C. § 3553(f) is available to a defendant who 

would ordinarily be subject to mandatory minimum sentence requirements but who 

demonstrates by a preponderance of the evidence that he meets the five mitigating 

criteria set forth in the statute. Carillo-Ayala, 713 F.3d at 88, 90; see also U.S.S.G. 

§ 5C1.2(a)(1)–(5). Section 3553(f)(2) requires that the defendant show that he 

“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); Carillo-Ayala, 713 F.3d at 88; see also U.S.S.G. 

§ 5C1.2(a)(2). 

The district court erred in concluding that a defendant subject to a firearm 

enhancement is necessarily precluded from receiving safety-valve relief. This is an 

incorrect statement of the law in our Circuit. See Carillo-Ayala, 713 F.3d at 91

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(“We hold that not all defendants who receive the enhancement under 

§ 2D1.1(b)(1) are precluded from relief under subsection (a)(2) of the safety 

valve.”). As discussed above, based on the evidence introduced at the sentencing 

hearing, the district court erred in applying the firearm enhancement to PerezAlonso in the first place. Because it mistakenly applied the firearm enhancement 

and misapprehended applicable law, the court did not undertake the safety-valve 

analysis. Perez-Alonso was thus denied the opportunity to show he did not possess 

the weapons in connection with his drug offenses. See id. at 90. 

II. CONCLUSION

The district court’s errors were not harmless because Perez-Alonso’s 

sentence was based on his firearm enhancement and safety-valve relief was 

improperly precluded. See Williams v. United States, 503 U.S. 193, 203 (1992). 

Accordingly, we VACATE Perez-Alonso’s sentence and REMAND for further 

proceedings not inconsistent with this opinion. 

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