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The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1128

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United States of America, *

*

Appellee, * On Appeal From the United

* States District Court for the

v. * Northern District of Iowa.

*

Margarito Cortez, * [UNPUBLISHED]

*

Appellant. *

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Submitted: November 14, 2007

Filed: December 7, 2007

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Before MELLOY, BEAM, SHEPHERD, Circuit Judges.

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PER CURIAM.

Margarito Cortez pleaded guilty to (1) conspiracy to distribute 500 grams or

more of methamphetamine mixture, fifty grams or more of actual methamphetamine,

and cocaine salt, and (2) distribution of fifty grams or more of actual

methamphetamine. At sentencing, the only issue was whether Cortez provided a

complete and truthful statement as required by United States Sentencing Guideline §

5C1.2(a)(5) to qualify for safety valve relief. The district court1

 held that Cortez failed

to demonstrate by a preponderance of the evidence that he had been truthful and
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sentenced Cortez to the mandatory minimum–concurrent 120-month sentences of

imprisonment. Cortez appeals, claiming the district court erred in its safety valve

determination. We affirm.

"We will overturn a district court's findings with respect to safety valve

eligibility only if they are clearly erroneous." United States v. Guerra-Cabrera, 477

F.3d 1021, 1024-25 (8th Cir. 2007). It is a defendant's burden to establish that he has

met each of the eligibility requirements and "[a]ffirmance is required so long as the

record supports those findings, regardless of which party is favored." Id. at 1025.

Additionally, we generally do not disturb a district court's credibility finding. United

States v. Soto, 448 F.3d 993, 996 (8th Cir. 2006). 

The district court based its credibility determination on three main facts.

Demonstrated below, Cortez gave inconsistent accounts concerning the amount of

cocaine he distributed as well as whether he saw two other men, who were in the

bathroom of his trailer with him at the time the police executed the search warrant,

flush cocaine down the toilet. Additionally, there was conflicting testimony at

sentencing as to whether Cortez ever sold drugs to two particular men. 

During Cortez's initial interview with the police following his arrest, Cortez told

the officer, among other things, that he distributed around twenty ounces of cocaine.

At a subsequent proffer interview, Cortez said he sold only eight ounces of cocaine

and, when asked specifically, that he did not sell drugs to Raymond Barrone, Sr. or

Raymond Barrone, Jr. At sentencing, Cortez testified that, in fact, he sold around

twenty ounces and that he was not truthful with the police during his proffer

interview. 

In rebuttal, the investigating officer testified about his involvement in the

investigation and subsequent arrest of Cortez, including the officer's daily contact with

a confidential informant who was living with Cortez. This officer testified that based
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upon the information received from the confidential informant, Ray Barrone, Sr. first

introduced Cortez to the confidential source and Cortez sold drugs to Ray Barrone, Jr.

Further, the officer testified that Ray Barrone, Jr. frequented Cortez's trailer. Finally,

the officer testified that the bathroom in the trailer was quite small and it would be

physically impossible for Cortez not to observe two others flushing cocaine down the

toilet. Cortez testified at sentencing that he was in the bathroom brushing his teeth but

did not see anything. The officer stated that there were three men, including Cortez,

in the trailer bathroom at the time the police executed the search warrant, cocaine was

on the faces of two of the men as well as on the floor and rim of the toilet, and that

cocaine was flying everywhere. 

Given these inconsistencies, the record supports the district court's finding that

Cortez was untruthful and failed to meet his burden to prove he qualified for safety

valve relief. The court did not clearly err in denying Cortez safety valve relief. We

therefore affirm.

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