## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-10509

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### M ARGUERITE 

### C ASALE



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:98-CR-211-Y)

_________________________ May 11, 2000

Before POLITZ, SMITH, and DENNIS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Marguerite Casale appeals the sentence imposed foll o wing her plea of guilty of possession with intent to distribute heroin in

violation of 21 U.S.C. § 841(a)(1). We affirm.

I.

The government first argues that we should

dismiss without consideration of the merits bec ause Casale’s written plea agreement contain s

a waiver-of-appeal provision. A defendant can

waive the right to appeal as part of a pl ea

agreement, b u t the waiver must be informed

(or “kno wing”) and voluntary. S ee United

Stat es v. Melançon , 972 F.2d 566, 567 (5th

Cir. 1992). “[A] defendant's waiver of her

right to appeal deserves and, indeed, requires * Pursuan t to 5 T H C IR

. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited circum stances set forth in 5 T H C IR

. R.

47.5.4.2

t he special attention of the district court. . . .

It is up to the dist rict court to i nsure that the

defendant fully understands her right to appeal

and the consequences of waiving that right.”

United States v. Baty

, 980 F.2d 977, 979 (5th

Cir. 1992). A generic discussion of the

possibility of waiving one’s right to an appeal

is not sufficient. See United States v.

Robinson

, 187 F.3d 516, 518 (5th Cir. 1999).

The record of Casale’s F ED

. R. C RIM

. P. 11

hearing does not une quivocally indicate that

she had read and unders t ood the plea

agreement, and the hearing did not include any explanation of the waiver-of-appeal provision.

The record is not adequate to demonstrate that

C asale knowingly and voluntarily waived her

right to appeal, so the waiver is not effective.

See Robinson

, 187 F.3d at 518; United States

v. P ortillo , 18 F.3d 290, 292-93 (5th Cir.

1994).

II.

Casale argues that the court erred by

declining to impose a s ent ence below the

statutory minimum pursuant to t he “safety

valve” provision of 18 U.S.C. § 3553(f):

Notwithstanding any other provision of

law, in the case of an offense under .

. . 21 U.S.C. 841

. . . the cou r t shall

impose a sentence pursuant to guidelines

pro mulgated by the United States

Sentencing Commission

. . . without

regard to any st a tutory minimum

sentence, if the court finds at sentencing,

after the Government has been afforded

the opportuni ty to make a

recommendation, that 

### SS

. . .

( 5) 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

o ffenses that were part of the sa m e

cour se of conduct or of a common

sc heme or plan, but the fact that the

defendant has no relevant or useful other

information to prov ide or that the

Government is already aware of the

information shall not preclude a

determination by the court that the

d efendant has complied with this

requirement. 1

This requirement is repeated verbatim at

U.S.S.G. § 5C1.2, and U.S.S.G. § 2D1.1(b)(6)

provides for a two-level decrease in offense

level if the “safety-valve” requirements are met

and the offense level is 26 or greater.

Based on the government’s assertion that

Casale had not truthfully provi ded al l

information and evidence she h a d regarding

the offense, the Presentence Report (“PSR”)

recommended that she was ineligib le for the

safety-valv e provision. The court tentatively

sustained Casale’s object ion to this

recommendation, but, after hearing testimony

from a government agent and Casale,

determined that the PSR recommendation was

correct and refu s ed to apply the safety-valve

provision because of a failure t o satisfy the

truthfulness criterion of § 3553 (f)(5). We

review this finding for clear error. 2 S ee United

1 Section 3553(f) contains five require ments,

but the parties dispute only whether Casale has

satisfied the requirement contained at § 3553(f)(5).

2 Neither party contends that the court

incorrectly interpreted the provision as a matter of

(continued...)3

St ates v. Miller , 179 F.3d 961, 963-64 (5th

Cir. 1999).

The government asserts that Casale has not

been truthful about at least two issues. First,

although the gover nment was able to verify

C asale’s claim that she had engaged in a

practice run from New York to Texas after her

recruitment as a drug courier, government

agents did not believe she was unaware of the

identity of all other participants in the drug

operation, and did n o t believe her assertion

that, having suffered a stroke, she was unable

to recall specific dates.

Second, Cas ale became extremely evasive

on cross examination when the g overnment

asked about a receipt for a $50 postal money

order from Lucy Montemoro in Brooklyn

, New Y o rk, to Luis de Jesus in Elmira, New

York, which was found in Casale’s purse at

the time of arrest. Casale claimed that the

money orde r was not related to her criminal

offense, and therefore ref used to identify the

named individuals.

F ollowing Casale’s testimony, the co urt

stated that it now underst ood why the PSR

fo und her to be ineligible for the safety valve

provision, and ove rruled her objection to the

denial of that reduction on the ground that she

had been evasive under questioning and had

failed to demonstrate that she had been

forthcoming for purposes of § 3553(f)(5).

Casale argues that the court erred by denying

the reduction based on irrelevant matters and

pure speculation, in violation of Miller

.

In Miller

, we held that a court may not refuse the safety valve reduct io n based on untruthfulness regarding matters not related to

the offense of conviction. S ee Mill er , 179

F.3d at 965-66. Miller does not control

whether the money order testimony is relevant,

h owever, because unlike the situation in Mi l

ler

, the only basis for determining whether the

money order is relevant is Casale’s credibility,

a judgment the district court was uniquely well

qualified to make.

Casale’s assertion that the court incorrectly

relied on pure speculation is likewise not supported by Miller

. In M iller

, we did hold that

a court may not rely on mere speculation, but

in so doing we explici

t ly followed U

nited

States v. Miranda-Santiago

, 96 F.3d 517 (1st

Cir. 1996), and Un ited States v. White , 119

F.3d 70 (1st Cir. 1997). S ee Miller

, 179 F.3d

at 967-68.

The Mir anda-Santiago court held that mere speculation

is not sufficient to defeat

ap plication of 18 U.S.C. § 3553(f): “The

government cannot assure succe ss simply by

saying, ‘We don’t believe the defendant,’ and

doing nothing more.” M iranda-Santiago

, 96

F.3d at529. In W

hite

, the court clarif

i ed

Miranda-Santiago in affirming a refusal to

apply the safety valve provision:

Miranda-Santiago in no sense suggests

t hat the sentencing court cannot arri v e at an independent determination

regarding a criminal defendant’s

truthfulness, base d o n the evidence

before it. Rather, we there held merely

t hat it was clear error to conclude that

the defendant had been untruthful, based

solely on

a PSR which directly

contradi cted the di stri ct court’s

determination.

2 (...continued)

law.4

White , 119 F.3d at 74. 3

As in White

, the district court in this case,

after preliminarily rejecting t he government’s

argument, “made the carefully considered determinati o n that [Casale] lacked credibility.”

White

, 119 F.3d at 74. That decision is not

clearly erroneous.

AFFIRMED.

3 The Miranda-Santiago district court was confused about two matters, the nature and content of

the plea agreement and the content of the PSR. S ee Miranda-Santiago

, 96 F.3d at 527. In particular,

the court incorrectly believed that the PSR

supported the government ’ s position as to the

defendant’s truthfulness. See id

.