FILED

United States Court of Appeals

Tenth Circuit

March 30, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 09-3029

JULIO C. DE LA TORRE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. 6:08-CR-10007-MLB-1)

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for

Defendant-Appellant.

Matthew T. Treaster, Assistant United States Attorney (Lanny D. Welch, United

States Attorney, with him on the briefs), District of Kansas, Wichita, Kansas, for

Plaintiff-Appellee.

Before MURPHY, McWILLIAMS, and GORSUCH, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Julio De La Torre was charged in a two-count superceding indictment with

possessing with the intent to distribute fifty grams or more of methamphetamine

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and possessing with the intent to distribute less than fifty kilograms of a

substance containing a detectable amount of marijuana, both in violation of 21

U.S.C. § 841(a)(1). After a jury trial, at which he testified, De La Torre was

convicted of both counts and was sentenced to 121 months’ imprisonment.

De La Torre appeals his methamphetamine conviction and sentence. He

argues the district court erred by instructing the jury it could find him guilty of

possessing methamphetamine, even if it believed he only knew marijuana was in

the backpack and was unaware methamphetamine was present. He also argues the

district court erred in admitting statements he made during an interview with

Pretrial Services. Finally, De La Torre argues the district court erred by refusing

to consider his trial testimony as qualifying him for safety-valve treatment at

sentencing. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, the court AFFIRMS

De La Torre’s conviction but REMANDS to the district court to vacate and

reconsider his sentence for the purpose of evaluating whether the safety-valve

provision should be applied. 

II. Background

De La Torre was charged in a two-count superceding indictment with

possessing with the intent to distribute fifty grams or more of methamphetamine

and possessing with the intent to distribute less than fifty kilograms of a

substance containing a detectable amount of marijuana, both in violation of 21

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U.S.C. § 841(a)(1). At trial, De La Torre testified that for several days prior to

February 16, 2007, he was partying in Room 150 of the Comfort Inn in Wichita,

Kansas. While there, he admits he smoked marijuana, but claims he neither saw

nor used methamphetamine.

On the morning of February 16, 2007, the hotel’s desk clerk called the

Wichita Police Department and reported what she suspected was a false

identification used to rent Room 256. When officers arrived, the clerk provided a

copy of the identification card and explained that the people staying in Room 150

were in the process of moving to Room 256. Additionally, the clerk stated other

guests had reported the smell of marijuana coming from Room 150. 

De La Torre testified he awoke that morning when someone in the room

started screaming that the police were at the hotel. At that point, De La Torre

claimed one of the people in the room handed him a backpack and instructed De

La Torre to follow him. They left the hotel, at which point the other person told

De La Torre to get rid of the backpack. Officer Rago, who was in the parking lot,

testified he saw De La Torre and another individual run from the hotel and hop

over a short fence. Officer Rago testified De La Torre was carrying a backpack,

which he threw into a culvert as he ran away. 

Officer Rago informed Officer Springob about what he saw. A few minutes

later, De La Torre and a companion walked back to the hotel through the parking

lot. Officer Rago recognized them and approached to ask them where they came

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from and where they were going. Each gave a different answer: one claimed they

were coming from the store while the other claimed they were returning from a

friend’s house. Meanwhile, Officer Springob retrieved the backpack from the

culvert. Officer Springob testified he could smell marijuana inside the culvert. 

When he looked inside the backpack, Officer Springob found a shoe box

containing multiple bricks of marijuana, a large bag of methamphetamine, rubber

bands, Ziploc bags, and digital scales. As a result, Officer Rago took both men

into custody.

Officer Springob read De La Torre his Miranda warnings, and De La Torre

agreed to speak with him about the incident. According to Officer Springob, De

La Torre admitted knowing the backpack contained marijuana, scales, Ziploc

bags, rubber bands, digital scales, and “ice,” a form of methamphetamine. 

Officer Springob also testified De La Torre admitted being in Room 150 for about

three days, where he hung out with friends and used marijuana and ecstasy. De

La Torre told Officer Springob his friends sold narcotics in the room. He also

admitted using methamphetamine in the past, but not at the hotel. 

De La Torre testified he did not tell the officer he knew there was

methamphetamine in the backpack. Instead, he claimed he told Officer Springob

he believed it only contained marijuana because he and others in the hotel room

had only used marijuana. Nonetheless, De La Torre admitted the quantities of

both the methamphetamine and marijuana discovered in the backpack were

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distribution quantities. De La Torre also admitted he had used methamphetamine

in the past, but claimed he had not used any in the year prior to the incident at the

hotel. 

At a sidebar, the Government sought to introduce a statement De La Torre

made to Pretrial Services that he used methamphetamine in February 2007. The

Government emphasized this testimony was important because the Government

“believe[d] that his use in February of 2007 was the day in question and that

shows he had knowledge there was meth in that hotel room.” De La Torre

objected due to the absence of notice and the confidentiality of statements made

to Pretrial Services. The district court overruled De La Torre’s objection and

permitted the Government to present the statement, but only for the purposes of

impeachment. During its re-cross-examination of De La Torre, the Government

asked whether he told a federal probation officer he had actually used

methamphetamine in February 2007. De La Torre testified he told the probation

officer he used methamphetamine about two years prior to his May 2008

interview. On rebuttal, the Government called the probation officer, who testified

De La Torre specifically told her he used methamphetamine in February 2007. 

Immediately after this testimony, the district judge instructed the jury it could

only consider evidence of the statement “for the purpose of judging his

believability or his credibility and not for any other reason.” 

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The jury ultimately convicted De La Torre of both counts. At sentencing,

De La Torre sought the benefit of the Sentencing Guidelines’ safety-valve

provision, USSG § 5C1.2. The parties disputed whether he “truthfully provided

to the Government all information and evidence the defendant ha[d] concerning

the offense” as required under § 5C1.2(a)(5). De La Torre argued his testimony

at trial fulfilled this requirement. The court denied De La Torre’s request on the

grounds that “the mere fact that defendant testified at trial does not entitle him to

‘safety valve’ consideration.” The district court ultimately sentenced De La Torre

to 121 months’ imprisonment to be followed by five years’ supervised release.

III. Discussion

A. De La Torre’s Knowledge of the Backpack’s Contents

De La Torre first challenges his conviction for possessing

methamphetamine with the intent to distribute. He argues the district court erred

in instructing the jury that the Government did not have to prove beyond a

reasonable doubt that he knew the precise nature of all controlled substances he

possessed. This court reviews “the district court’s decision to give a particular

jury instruction for abuse of discretion and consider[s] the instructions as a whole

de novo to determine whether they accurately informed the jury of the governing

law.” United States v. Fria Vazquez Del Mercado, 223 F.3d 1213, 1216 (10th

Cir. 2000) (quotation omitted).

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The first two elements in the instruction given by the district court

deviated from Tenth Circuit Criminal Pattern Jury Instruction 2.85, which

suggests the Government must prove the defendant knowingly possessed a

particular controlled substance. The first element listed in Pattern Instruction

2.85 is: “the defendant knowingly or intentionally possessed [name controlled

substance] as charged.” The district court correctly noted that this portion of the

Pattern Instruction incorrectly states the law of this circuit. Instead, the district

court properly addressed this issue by breaking the Pattern Instruction’s first

element into two separate elements requiring proof (1) the defendant knew he

possessed a controlled substance and (2) the controlled substance was

methamphetamine.

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De La Torre’s challenge stems from his testimony that while he believed

the backpack contained marijuana, he had no idea it also contained

methamphetamine. In support of this argument, he points to his testimony that he

only smoked marijuana in the hotel room and did not see methamphetamine while

he was there. Specifically, De La Torre argues Tenth Circuit case law does not

permit the Government to use his admission that he knew he possessed a single

controlled substance, marijuana, to establish the mens rea for possessing both

marijuana and methamphetamine under 21 U.S.C. § 841(a)(1). 

Here, the district court instructed the jury1

:

To find the defendant guilty of this crime you must be convinced that

the government has proved each of the following beyond a

reasonable doubt:

First: the defendant knowingly or intentionally possessed a controlled

substance;

Second: the controlled substance was methamphetamine;

Third: the defendant possessed the methamphetamine with the intent

to distribute it; and 

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Fourth: the weight of the methamphetamine defendant possessed was

at least 50 grams.

It also instructed the jury that the Government did not need “to prove beyond a

reasonable doubt that the defendant knew the precise nature of the controlled

substance or substances.” 

Contrary to De La Torre’s argument, the district court’s instructions were

consistent with this court’s interpretation of § 841(a)(1). The statute does not

require the Government to prove a defendant knew the precise nature of the

controlled substance he possessed, so long as he knew he did in fact possess a

controlled substance. United States v. Johnson, 130 F.3d 1420, 1428 (10th Cir.

1997). The Government can establish the mens rea for the possession element by

proving only that the defendant knew he possessed some controlled substance. 

Once it proves the defendant had the requisite guilty mind to possess some

controlled substance within the universe of all controlled substances, it has

established the mens rea necessary to establish the possession element with

respect to any and all drugs the defendant actually possessed. This is so even if

the defendant was unaware of the nature or number of controlled substances he

actually possessed. The Government must then prove the defendant did possess

the particular controlled substance charged in the indictment. See United States v.

Castorena-Jaime, 285 F.3d 916, 933 (10th Cir. 2002). The Government is not

required, however, to prove that the controlled substance the defendant actually

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De La Torre does not argue the district court’s wording of the third

element required the jury to find he intended to distribute methamphetamine

specifically. He simply argues that when two controlled substances are present,

the Government must establish he actually knew both controlled substances were

present, not just one. In other words, his argument focuses only on the first

element of the district court’s instruction. Accordingly, this court need not

determine whether the third element of the district court’s instruction imposed a

higher burden on the prosecution than the law requires with respect to the

defendant’s knowledge of the particular controlled substances he intended to

distribute. Cf. United States v. Romero, 136 F.3d 1268, 1271-73 (10th Cir. 1998)

(“[T]he Government is required to prove all elements put forth in [a jury

instruction to which the Government did not object] . . . even if the Government

would not, under law, be otherwise required to do so.”). De La Torre admits he

possessed distributable quantities of both marijuana and methamphetamine.

3

Though this court makes no credibility determinations, it is worth noting

that whether De La Torre was unaware of the presence of methamphetamine was

disputed at trial. Specifically, Officer Springob testified De La Torre admitted

knowing the backpack contained “ice.” 

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possessed corresponds to the controlled substance the defendant believed he

possessed.2

 

In the instant case, De La Torre’s admission established he had the

necessary mens rea to be convicted of possessing methamphetamine with the

intent to distribute it. Even if De La Torre was, as he claimed, wholly unaware of

the presence of a second controlled substance in the backpack,3

 he admits he

knew the backpack contained a controlled substance. This admission was

sufficient to establish his guilty mind as to the possession element with respect to

both drugs. Thereafter, De La Torre admitted he did in fact possess distribution

amounts of both marijuana and methamphetamine. Consequently, De La Torre’s

statements were sufficient for the jury to convict him of both counts. The district

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court did not abuse its discretion or misapply the law in giving the relevant

instruction.

B. Admissibility of Statements from De La Torre’s Pretrial Interview

De La Torre next argues the district court erroneously admitted a statement

from his pretrial interview regarding his use of methamphetamine in February

2007. This court reviews evidentiary rulings for an abuse of discretion. United

States v. Collins, 575 F.3d 1069, 1073 (10th Cir. 2009). 

De La Torre’s argument hinges on 18 U.S.C. § 3153(c), which provides:

Information obtained in the course of performing pretrial services

functions in relation to a particular accused shall be used only for the

purposes of a bail determination and shall otherwise be confidential.

18 U.S.C. § 3153(c)(1). Additionally, § 3153(c)(3) provides that confidential

information obtained by Pretrial Services 

is not admissible on the issue of guilt in a criminal judicial

proceeding unless such proceeding is a prosecution for a crime

committed in the course of obtaining pretrial release or a prosecution

for failure to appear for the criminal judicial proceeding with respect

to which pretrial services were provided.

As De La Torre himself points out, however, the inadmissibility of statements

made to Pretrial Services as to the issue of guilt does not restrict the Government

from using such statements to impeach a defendant’s trial testimony. Indeed, a

number of other circuits have recognized that statements made to Pretrial Services

are admissible for impeachment purposes. See United States v. Griffith, 385 F.3d

124, 126 (2d Cir. 2004); United States v. Stevens, 935 F.2d 1380, 1395-97 (3d

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Cir. 1991); United States v. Wilson, 930 F.2d 616, 619 (8th Cir. 1991). This court

is persuaded by these decisions and agrees § 3153(c)’s statutory bar to using such

statements to prove guilt does not prohibit the Government from offering such

statements to impeach the defendant’s credibility.

While the Government initially sought to introduce the Pretrial Services

statement to suggest De La Torre had in fact used methamphetamine while at the

hotel, and therefore had reason to know the backpack contained

methamphetamine, the district court specifically ruled that the statement

regarding De La Torre’s February 2007 methamphetamine use could only be

admitted to impeach De La Torre’s trial testimony. Moreover, after the probation

officer testified regarding De La Torre’s statement, the court gave an appropriate

limiting instruction informing the jury it could only consider the statement for the

purposes of assessing De La Torre’s credibility. Because the statement was only

admitted for the limited purpose of impeachment, the district court did not abuse

its discretion. 

C. Safety-Valve Application

De La Torre next argues the district court erred by denying his request for

application of USSG § 5C1.2, the safety-valve provision, in calculating his

sentence. “We review a district court’s factual determination on safety-valve

eligibility for clear error, including whether a defendant has provided the

government with complete and truthful information. A district court’s legal

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interpretation guiding its application of the safety-valve provision is reviewed de

novo.” United States v. Cervantes, 519 F.3d 1254, 1256 (10th Cir. 2008) (citation

omitted).

USSG § 5C1.2(a) provides that, when a defendant has committed an

offense under 21 U.S.C. § 841, “the court shall impose a sentence in accordance

with the applicable guidelines without regard to any statutory minimum

sentence,” so long as the court determines the applicable criteria are met. One

criterion a defendant must establish in order to qualify for the safety-valve

adjustment, and the only one at issue here, is:

[N]ot 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, but the

fact that the defendant has no relevant or useful other information to

provide or that the Government is already aware of the information

shall not preclude a determination by the court that the defendant has

complied with this requirement.

USSG § 5C1.2(a)(5); 18 U.S.C. § 3553(f)(5). Additionally, if all necessary

criteria are met, a defendant whose guidelines range is calculated under USSG

§ 2D1.1 is entitled to a two-level reduction in his offense level. USSG

§ 2D1.1(b)(11). 

At sentencing, De La Torre’s advisory guidelines range was calculated

under USSG § 2D1.1 and he sought application of the safety-valve provision even

though he did not consent to being de-briefed by the Government. Nonetheless,

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De La Torre argued he fulfilled the requirements of § 5C1.2(a)(5) because by

testifying at trial, he provided the Government with “all information and

evidence” he had concerning the crime. The district court categorically

concluded that trial testimony alone can never support safety-valve consideration

and denied De La Torre’s request. On appeal, the Government argues the district

court was correct in refusing to consider the safety-valve adjustment because

§ 5C1.2(a)(5) requires a defendant to meet directly with Government agents for

de-briefing in order to qualify. 

Neither USSG § 5C1.2(a)(5) nor its statutory counterpart, 18 U.S.C.

§ 3553(f)(5), delineates the suitable methods of providing the information to the

Government. Additionally, neither party points to any decision issued by this or

any other federal circuit court addressing whether trial testimony itself may

constitute an acceptable method of providing the Government with such

information. This is not surprising, however, as a defendant’s trial testimony

most often includes a denial of the essential factual elements of guilt and directly

conflicts with the jury’s finding of guilt. No reasonable defendant could claim

safety-valve eligibility based on trial testimony that necessarily contradicts the

conviction itself.

Accordingly, this case presents a novel circumstance because De La Torre’s

testimony primarily sought to convince the jury that while he knew he possessed

marijuana, he did not know he possessed methamphetamine. As discussed earlier,

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because De La Torre admitted possessing a distributable amount of a controlled

substance, his alleged lack of knowledge regarding the varieties of controlled

substances he actually possessed does not shield him from criminal liability under

21 U.S.C. § 841. Thus, it is conceivable that a fact-finder could believe De La

Torre’s testimony without necessarily contradicting the conviction. Similarly, in

rare circumstances, a defendant may be eligible for an acceptance of

responsibility adjustment, even though he proceeded to trial. See USSG § 3E1.1,

cmt. n. 2. 

In describing 18 U.S.C. § 3553(f)(5), from which the language in USSG

§ 5C1.2(a)(5) is drawn, this court has explained the “defendant must affirmatively

volunteer all he knows, including facts beyond the basic elements of the crime.” 

United States v. Gonzalez-Montoya, 161 F.3d 643, 652 (10th Cir. 1998). Though

undoubtedly rare, there are circumstances in which trial testimony could be

sufficiently thorough so as to constitute adequate compliance with this

requirement. The language of USSG § 5C1.2(a)(5) and 18 U.S.C. § 3553(f)(5)

does not require the defendant to consent to a private de-briefing with the

Government, nor does it prohibit trial testimony as a potential method of

providing the necessary information. The language of the safety-valve provision

only requires the defendant provide, and the Government receive, the information

“not later than the time of the sentencing hearing.” USSG § 5C1.2(a)(5); 18

U.S.C. § 3553(f)(5). 

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De-briefing may be logistically preferential to trial testimony from the

Government’s standpoint and, in most cases, it may be the only practical method

by which the defendant can provide the Government with complete information

regarding the offense. Here, however, it appears De La Torre’s testimony on

direct examination was quite broad, such that the Government may have had a full

and fair opportunity to cross-examine the defendant “concerning the offense or

offenses that were part of the same course of conduct or of a common scheme or

plan.” USSG § 5C1.2(a)(5). Additionally, if the Government believes De La

Torre’s trial testimony was neither truthful nor complete, or believes it lacked an

adequate opportunity to cross-examine De La Torre due to the scope of direct

examination, the Government has a sufficient opportunity to challenge the safetyvalve request on those grounds at re-sentencing. 

This court concludes a district court is not categorically precluded from

considering a defendant’s trial testimony in determining whether he qualifies for

the safety-valve adjustment under USSG § 5C1.2(a)(5). On remand, the burden

remains on De La Torre to establish his eligibility by a preponderance of the

evidence. Gonzalez-Montoya, 161 F.3d at 652. As this court explained in

Cervantes,

[a]bsent a favorable recommendation from the government, a

defendant needs to put on evidence at the sentencing hearing to meet

his burden of showing that he truthfully and fully disclosed

everything he knew and to rebut government claims to the contrary. 

This evidence may include proffer documents, stipulated facts, or, in

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all likelihood, testimony from the defendant or a representative of the

government subject to cross-examination. Security precautions may

be taken if necessary. It is axiomatic that he who has the burden of

proof must put on some evidence at a sentencing hearing to allow the

district court to find, by a preponderance of the evidence, that he is

eligible for the safety-valve adjustment.

519 F.3d at 1258. While De La Torre did not produce any evidence at the

sentencing hearing below, the district court did not permit him the opportunity to

do so, instead concluding trial testimony could not, under any circumstances,

satisfy USSG § 5C1.2(a)(5). On remand, De La Torre shall be permitted to

attempt this showing.

Finally, in its supplemental brief, the Government argues that any error is

harmless because De La Torre’s 121-month sentence is within the guidelines

range even if that range is revised by the application of the safety-valve. Without

considering the safety-valve provision’s applicability in light of De La Torre’s

trial testimony, the district court calculated De La Torre’s guidelines range as 121

to 151 months. The district court imposed a sentence at the bottom of the

guidelines range, 121 months. Had the district court fully considered the safetyvalve provision and determined that it applied, De La Torre’s guidelines range

would have been reduced to 97 to 121 months under USSG § 2D1.1(b)(11). 

According to the Government, the district court’s imposition of a sentence

which would also fall within the guidelines range reduced by application of the

safety-valve provision, coupled with the court’s refusal to grant a downward

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variance, indicates the district court would have imposed the same sentence

absent any error. This court disagrees and concludes the Government has failed

to meet its burden of establishing the district court would have imposed the same

sentence. See United States v. Lozano, 514 F.3d 1130, 1134 (10th Cir. 2008). At

sentencing, the district court indicated its intent to sentence De La Torre at the

low-end of the relevant guidelines range. Thus, the district court’s refusal to

grant a downward variance outside the advisory guidelines range does not, in and

of itself, suggest the court would not impose a lower sentence within a reduced

guidelines range. Absent any other indication to the contrary, this court

concludes the record does not support the Government’s contention that the

district court would have imposed the same sentence under a revised guidelines

range.

Accordingly, De La Torre’s sentence must be vacated and remanded so he

can attempt to present sufficient evidence from which the district court can

determine whether he is eligible for the safety-valve adjustment. 

IV. Conclusion

For these reasons, the court hereby AFFIRMS De La Torre’s convictions

but REMANDS to the district court to vacate and reconsider De La Torre’s

sentence for the purpose of evaluating whether the safety-valve provision should

be applied.

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