IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 99-10509

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARGUERITE CASALE,

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 appealsthe sentence imposed following 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 arguesthat we should

dismiss without consideration ofthe merits becauseCasale’swrittenplea agreement contains

a waiver-of-appealprovision. A defendant can

waive the right to appeal as part of a plea

agreement, but the waiver must be informed

(or “knowing”) and voluntary. See United

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

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

right to appeal deserves and, indeed, requires

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R.

47.5.4.
2

the special attention of the district court. . . .

It is up to the district court to insure 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 FED. R.CRIM. P. 11

hearing does not unequivocally indicate that

she had read and understood the plea

agreement, and the hearing did not include any

explanation ofthe waiver-of-appeal provision.

The record is not adequate to demonstrate that

Casale knowingly and voluntarily waived her

right to appeal, so the waiver is not effective.

See Robinson, 187 F.3d at 518; United States

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

1994). 

II.

Casale argues that the court erred by

declining to impose a sentence below the

statutory minimum pursuant to the “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 court shall

impose a sentence pursuant to guidelines

promulgated by the United States

Sentencing Commission . . . without

regard to any statutory minimum

sentence, ifthe court finds at sentencing,

after the Government has been afforded

the opportunity to make a

recommendation, thatSS

. . . 

(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

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 usefulother

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.1

This requirement is repeated verbatim at

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

provides for a two-level decrease in offense

levelifthe “safety-valve” requirements are met

and the offense level is 26 or greater. 

Based on the government’s assertion that

Casale had not truthfully provided all

information and evidence she had regarding

the offense, the Presentence Report (“PSR”)

recommended that she was ineligible for the

safety-valve provision. The court tentatively

sustained Casale’s objection to this

recommendation, but, after hearing testimony

from a government agent and Casale,

determined that the PSR recommendation was

correct and refused to apply the safety-valve

provision because of a failure to satisfy the

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

review thisfinding for clear error.2See United

1 Section 3553(f) contains five requirements,

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

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

Cir. 1999).

The government assertsthat Casale has not

been truthful about at least two issues. First,

although the government was able to verify

Casale’s claim that she had engaged in a

practice run fromNew 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 not believe her assertion

that, having suffered a stroke, she was unable

to recall specific dates. 

Second, Casale became extremely evasive

on cross examination when the government

asked about a receipt for a $50 postal money

order from Lucy Montemoro in Brooklyn,

New York, 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 order was not related to her criminal

offense, and therefore refused to identify the

named individuals. 

Following Casale’s testimony, the court

stated that it now understood why the PSR

found her to be ineligible for the safety valve

provision, and overruled 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 reduction based on

untruthfulnessregarding matters not related to

the offense of conviction. See Miller, 179

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

whetherthe moneyordertestimonyisrelevant,

however, because unlike the situation in Miller, the only basis for determining whether the

money order is relevant is Casale’s credibility,

a judgment the district court was uniquelywell

qualified to make. 

Casale’s assertion that the court incorrectly

relied on pure speculation is likewise not supported by Miller. In Miller, we did hold that

a court may not rely on mere speculation, but

in so doing we explicitly followed United

States v. Miranda-Santiago, 96 F.3d 517 (1st

Cir. 1996), and United States v. White, 119

F.3d 70 (1st Cir. 1997). See Miller, 179 F.3d

at 967-68. 

TheMiranda-Santiago court held that mere

speculation is not sufficient to defeat

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

government cannot assure success simply by

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

doing nothing more.” Miranda-Santiago, 96

F.3d at529. In White, the court clarified

Miranda-Santiago in affirming a refusal to

apply the safety valve provision:

Miranda-Santiago in no sense suggests

that the sentencing court cannot arrive

at an independent determination

regarding a criminal defendant’s

truthfulness, based on the evidence

before it. Rather, we there held merely

that it was clear error to conclude that

the defendant had been untruthful, based

solely on a PSR which directly

contradicted the district 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 the government’s

argument, “made the carefully considered determination 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. See

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.