PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JESUS FIGUEROA-LABRADA, a/k/a 

Chuy, 

 Defendant - Appellant. 

No. 13-6278 

_________________________________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF OKLAHOMA 

(D.C. NO. 5:11-CR-00234-HE-3)

_________________________________ 

Virginia L. Grady, Federal Public Defender, Interim, and O. Dean Sanderford, Assistant 

Federal Public Defender, Denver, Colorado, for Defendant-Appellant Jesus FigueroaLabrada, a/k/a Chuy. 

Sanford C. Coats, United States Attorney, Steven W. Creager, Special Assistant U.S. 

Attorney, and David P. Petermann, Assistant U.S. Attorney, Oklahoma City, Oklahoma, 

for Plaintiff-Appellee United States of America. 

_________________________________ 

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges. 

_________________________________ 

MORITZ, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 24, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Jesus Figueroa-Labrada (“Figueroa”) appeals from the district court’s denial of his 

request for a reduced sentence under the “safety-valve” provision of 18 U.S.C. § 3553(f). 

The district court held § 3553(f) did not apply because Figueroa failed to make the 

disclosures necessary to support a reduced sentence before his initial sentencing hearing. 

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we reject 

the district court’s interpretation of § 3553(f). We conclude that when a defendant 

provides information to the government for the first time on remand, but before the 

resentencing hearing, the plain text of § 3553(f) requires the district court to consider that 

information in determining whether the defendant has satisfied § 3553(f). Because the 

district court here failed to do so, we reverse and remand for the district court to 

determine Figueroa’s eligibility for a safety-valve sentence. 

BACKGROUND

After a jury convicted Figueroa of conspiring to possess methamphetamine with 

intent to distribute, the district court attributed to Figueroa 746.19 grams of a mixture or 

substance containing a detectable amount of methamphetamine—the total amount of 

methamphetamine involved in the conspiracy—and sentenced him to 120 months’ 

imprisonment. On direct appeal, a panel of this court reversed his sentence and remanded 

for resentencing based on the district court’s failure to make particularized findings to 

support attributing the total quantity to Figueroa. In doing so, the panel noted that it was 

“reasonably probable” that only 56.7 grams of the methamphetamine mixture could be 

attributed to Figueroa based on his participation in the conspiracy. See United States v. 

Figueroa-Labrada, 720 F.3d 1258, 1261-63, 1268 (10th Cir. 2013) (“Figueroa I”). 

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On remand, the government presented no additional evidence regarding drug 

quantity, and the district court therefore attributed to Figueroa 56.7 grams of 

methamphetamine mixture. That amount carried a five-year mandatory minimum 

sentence under 21 U.S.C. § 841(b)(1)(B)(viii), and the district court determined 

Figueroa’s sentencing range was 63 to 78 months. But before his resentencing hearing, 

Figueroa sought a lower sentencing range, arguing he qualified for a reduced sentence 

under the “safety-valve” provision of § 3553(f). That provision allows a defendant to 

receive a sentence lower than an applicable mandatory minimum sentence if, inter alia—

“not later than the time of the sentencing hearing”—he truthfully provides the 

government all the information he possesses regarding his offenses. Had the district court 

granted Figueroa’s request, Figueroa would have avoided the five-year mandatory 

minimum and qualified for a two-level reduction in his base offense level, thereby 

lowering his advisory Guidelines range to 51 to 63 months. See U.S.S.G. § 2D1.1(b)(16). 

Although Figueroa did not attempt to cooperate with the government prior to his 

initial sentencing hearing, he provided enough truthful information before his 

resentencing hearing to gain the government’s support of his safety-valve request. 

Specifically, before Figueroa’s resentencing hearing, the prosecutor filed an “advisement 

to the court” indicating that Figueroa had met all five § 3553(f) requirements and 

specifically affirming that Figueroa had provided the government all information and 

evidence he possessed concerning the offenses. Further, at Figueroa’s resentencing 

hearing, the prosecutor characterized Figueroa’s disclosures as “truthful,” reiterated 

Figueroa had met all five safety-valve requirements, and agreed Figueroa’s safety-valve 

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request was timely, stating “the case law seems to suggest safety valve can be considered 

for re-sentencing.” Resent. Hr’g Tr., Doc. 412, at 8, 13. 

Despite the government’s support of Figueroa’s safety-valve request, the district 

court denied the request because Figueroa failed to provide the required disclosures prior 

to his initial sentencing hearing. The court then imposed a 63-month sentence. 

Figueroa timely appeals the denial of his safety-valve request. 

DISCUSSION

The sole issue in this appeal is whether § 3553(f)’s safety-valve is available to 

Figueroa, who did not cooperate or seek safety-valve relief prior to his initial sentencing 

hearing, but instead sought to satisfy the safety-valve requirements for the first time on 

remand before his resentencing. As a matter of first impression, based on the plain text of 

§ 3553(f), we conclude that when a defendant provides information to the government for 

the first time on remand, before the resentencing hearing, a district court must consider 

that information in determining the defendant’s eligibility for a safety-valve sentence. 

I. The plain language of 18 U.S.C. § 3553(f) requires a district court to 

consider information a defendant provides to the government for the 

first time before the resentencing hearing. 

A defendant must satisfy five requirements to be eligible for a reduced sentence 

under § 3553(f)’s safety-valve provision. Only the fifth requirement, 18 U.S.C. 

§ 3553(f)(5), is at issue here. That subsection mandates imposition of a Guidelines 

sentence “without regard to any statutory minimum sentence, if the court finds at 

sentencing, after the Government has been afforded the opportunity to make a 

recommendation, that—” 

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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 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. 

18 U.S.C. § 3553(f)(5) (emphasis added). 

Stated another way, this section requires the district court to grant safety-valve 

relief if it finds (1) at sentencing, (2) after the government has been afforded the 

opportunity to make a recommendation, (3) that not later than the time of the sentencing 

hearing the defendant truthfully provided the government all information and evidence 

the defendant had concerning the offense. 

In finding § 3553(f) did not apply to Figueroa’s safety-valve disclosures, the 

district court emphasized the statute’s requirement that the defendant provide information 

“not later than the time of the sentencing hearing”—a phrase the district court interpreted 

to exclude disclosures made before a resentencing hearing. Figueroa contends (as did the 

government below) that the use of the phrase “sentencing hearing” includes resentencing 

hearings. 

We review de novo a district court’s “legal interpretation guiding its application of 

the safety-valve provision.” United States v. Cervantes, 519 F.3d 1254, 1256 (10th Cir. 

2008). The starting point for our review is the safety-valve provision itself. If that 

provision is clear and unambiguous, our inquiry ends and we give effect to the statute’s 

plain language. United States v. Sprenger, 625 F.3d 1305, 1307 (10th Cir. 2010). In 

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ascertaining the statute’s plain meaning, the “[p]roper interpretation of a word ‘depends 

upon reading the whole statutory text, considering the purpose and context of the statute, 

and consulting any precedent or authorities that inform the analysis.’” United States v. 

Ko, 739 F.3d 558, 560 (10th Cir. 2014) (quoting Dolan v. U.S. Postal Serv., 546 U.S. 

481, 486 (2006)). 

The disputed phrase here requires a defendant to make necessary disclosures “not 

later than the time of the sentencing hearing.” This phrase clearly and unambiguously 

refers to “the sentencing hearing” at issue, whether it’s an initial, second, or subsequent 

sentencing hearing. The government agrees that throughout § 3553, “sentencing” refers 

to whichever sentencing is at issue, including any resentencing. And it provides no good 

reason for interpreting that word any differently in § 3553(f)(5). 

Nothing in the text of § 3553(f)(5) suggests that—unlike any other reference to 

“sentencing” in the same statute—the phrase, “not later than the time of the sentencing 

hearing,” should be read to include an extra word—“not later than the time of the initial 

sentencing hearing.” As Figueroa argues, “the ordinary understanding” of the phrase 

“sentencing hearing” includes resentencing hearings as well as initial sentencing 

hearings. Moreover, the government’s argument ignores the statutory context of that 

phrase. See United States v. Villa, 589 F.3d 1334, 1343 (10th Cir. 2009) (explaining that 

statutory text, plain or not, derives meaning from context). 

The introductory phrase to § 3553(f) requires the district court to impose a 

Guidelines sentence “without regard to any statutory minimum sentence, if the court 

finds at sentencing” that the defendant has satisfied all five safety-valve conditions. Thus, 

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by focusing solely on the phrase “not later than the time of the sentencing hearing” in 

§ 3553(f)(5), the government and our dissenting colleague conveniently ignore the 

appearance—within the same sentence—of the phrase “at sentencing.” And in context, 

the phrase, “the sentencing hearing,” clearly refers back to the generic “at sentencing” in 

the opening sentence of § 3553(f). The dissent offers no good reason to interpret the same 

word differently within that same sentence.1

 

Section 3553, when considered as a whole, further compels us to reject this 

interpretation. For example, § 3553(c) provides that a sentencing court, “at the time of 

sentencing, shall state in open court the reasons for its imposition of the particular 

sentence.” 18 U.S.C. § 3553(c) (emphasis added). Section 3553(c) indisputably applies to 

any sentencing hearing. See United States v. Rose, 185 F.3d 1108, 1113 n.3 (10th Cir. 

1999) (when district court fails to comply with § 3553(c), remedy is to remand for 

resentencing that complies with § 3553(c)). Indeed, if this court were to interpret the 

phrase “at the time of sentencing” in § 3553(c) to exclude resentencing hearings, the 

result would be unsupportable—a district court at resentencing could impose a sentence 

without stating reasons for the sentence imposed. 

 1

 Although the government does not make this distinction, the dissent suggests 

there is significance to § 3553(f)(5)’s reference to “the sentencing hearing.” 18 U.S.C. 

§ 3553(f)(5) (emphasis added); Dissent Op. at 4. Typically, use of the definite article 

“the” suggests that its noun is singular or unique. See Colorado v. Sunoco, Inc., 337 F.3d 

1233, 1241 (10th Cir. 2003). But while it might sometimes be a “reasonable linguistic 

inference,” to interpret “the” in such a manner, here, the reference to “the” does not draw 

a substantive distinction between a first, second, or subsequent “sentencing hearing.” See 

United States v. DeGasso, 369 F.3d 1139, 1147 (10th Cir. 2004). 

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Given the linguistic similarities between §§ 3553(f), 3553(f)(5), and 3553(c), we 

decline to assign the word “sentencing” a different meaning in these provisions. See

United States v. West, 671 F.3d 1195, 1200 (10th Cir. 2012) (explaining “absent good 

reason to the contrary, ‘when the same words are used in different sections of the law, 

they will be given the same meaning.’” (quoting In re Harline, 950 F.2d 669, 674 (10th 

Cir. 1991))). 

The government not only fails to provide a good reason to construe the term 

“sentencing” differently in § 3553(f)(5), it conceded at oral argument that § 3553 

generally applies at resentencing hearings. But, instead of accepting the plain meaning of 

§ 3553(f)(5), the government suggests in its response brief that we look to 18 U.S.C. 

§ 3742(f)(1) for guidance as to the meaning of “the sentencing hearing.” That statute 

provides authority for appellate courts to remand for resentencing and, as the government 

points out, specifically refers to proceedings on remand as “further sentencing 

proceedings.” The government thus reasons that a resentencing following remand is 

really just a continuation of the initial sentencing, and not a separate “sentencing 

hearing.” 

But to arrive at this conclusion, the government overlooks relevant statutory text 

and context. Under § 3742(f)(1), we remand for “further sentencing proceedings” if we 

conclude the district court erred in imposing a sentence. The plain language of § 3742(g) 

controls the district court’s actions on remand: “A district court to which a case is 

remanded pursuant to subsection (f)(1) . . . shall resentence a defendant in accordance 

with section 3553 and with such instructions as may have been given by the court of 

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appeals . . . .” (Emphasis added.) Because the safety-valve provision is found in § 3553, 

the district court was required, on remand, to resentence Figueroa in accordance with 

§ 3553, which necessarily included consideration of Figueroa’s safety-valve eligibility 

under § 3553(f). See United States v. Verners, 103 F.3d 108, 110 n.3 (10th Cir. 1996) 

(finding that safety-valve relief under U.S.S.G. § 5C1.2 “is not discretionary; it requires a 

departure from the minimum sentence on finding that certain conditions are met”). Even 

our dissenting colleague agrees on this point. Dissent Op. at 1-2. 

Simply stated, there is no textual support for interpreting § 3553(f)(5)’s phrase 

“not later than the time of the sentencing hearing,” as referring only to “the original

sentencing hearing.” See Dissent Op. at 4. Unlike the district court, the government, and 

our dissenting colleague, we decline to augment the statute with language not found 

therein. See Christner v. Poudre Valley Co-op. Ass’n, 235 F.2d 946, 950 (10th Cir. 1956) 

(“Courts should confine themselves to the construction of a statute as it is written and not 

attempt to supply omissions or otherwise amend or change the law under the guise of 

construction.”). 

Rather, we read § 3553(f)(5)’s requirement as clarifying that because the district 

court must make safety-valve findings “at sentencing,” and because the government must 

have an opportunity to make a recommendation, the defendant must make the necessary 

disclosures before “the sentencing hearing” at issue begins, regardless of whether it is an 

initial, second, or subsequent sentencing hearing. See United States v. Galvon-Manzo, 

642 F.3d 1260, 1267 (10th Cir. 2011) (“[G]enerally speaking, any and all disclosures for 

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safety-valve purposes are timely only if they occur prior to the commencement of the 

sentencing hearing.”). 

Applying our plain-language interpretation of § 3553(f) to the narrow 

circumstances before us, we conclude the statute permits a defendant to make safetyvalve disclosures for the first time on remand before a resentencing hearing. And that 

same statutory provision, read in conjunction with § 3742(g), requires a district court to 

consider such disclosures in determining safety-valve eligibility at resentencing following 

remand. 

II. This court’s precedent as well as the decisions of our sister circuits do 

not address the question presented here. 

The government relies heavily on United States v. Galvon-Manzo, 642 F.3d 1260 

(10th Cir. 2011), and United States v. Acosta-Olivas, 71 F.3d 375 (10th Cir. 1995), to 

support its position that to be eligible for a safety-valve sentence a defendant must satisfy 

the § 3553(f) factors before his initial sentencing hearing. Neither case sheds any real 

light on the question presented here. 

Galvon-Manzo concerned two defendants’ attempts during their initial sentencing 

hearings to alter untruthful information they previously provided to the government in 

support of their safety-valve requests. The district court denied the defendants’ requests 

and this court affirmed, holding the district court did not err in determining the 

defendants failed to satisfy § 3553(f)’s requirement to provide truthful and complete 

statements to the government. 

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In affirming the district court, the Galvon-Manzo panel noted, “generally speaking, 

any and all disclosures for safety-valve purposes are timely only if they occur prior to the 

commencement of the sentencing hearing.” 642 F.3d at 1267 (emphasis added). Contrary 

to the government’s assertion, this simple restatement of the statute’s text says nothing 

about whether the phrase, “not later than the time of the sentencing hearing,” requires the 

district court to ignore truthful and complete information a defendant provides for the 

first time on remand before his resentencing hearing. 

The Galvon-Manzo panel further explained that the underlying purpose of the 

safety-valve serves to “‘benefit only those defendants who truly cooperate.’” 642 F.3d at 

1268 (quoting United States v. Marin, 144 F.3d 1085, 1094 (7th Cir. 1998)). Thus, by 

requiring disclosures “not later than the time of the sentencing hearing,” Congress 

intended to prevent a situation where “‘a defendant may lie to the government and still 

qualify for safety valve relief merely by altering his story at sentencing in order to 

comport with the evidence presented by the government during the hearing.’” Id.

(quoting Marin, 144 F.3d at 1095). 

The government urges the court to address these policy concerns by contorting the 

statute to forbid a district court from considering a defendant’s request for a safety-valve 

sentence for the first time on remand before his resentencing hearing. Notably, in so 

doing, the government ignores significant factual differences between this case and 

Galvon-Manzo, namely that Figueroa made no disclosures before or during his initial 

sentencing hearing whereas both defendants in Galvon-Manzo admitted making 

untruthful disclosures before their initial sentencing hearings and sought to provide 

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additional information during their sentencing hearings. Had the district court properly 

considered Figueroa’s disclosures and found them to be untruthful or incomplete, the 

district court would have been within its discretion to deny Figueroa’s request. But that is 

not what happened here, and Galvon-Manzo does not instruct interpreting the statute in 

the manner the government suggests. 

Acosta-Olivas is similarly inapt. There, the district court interpreted § 3553(f)(5) 

to require a defendant to reveal only information regarding his own involvement in the 

crime, not information he possessed regarding other participants. Based on this 

interpretation, the district court determined the defendant “qualified under § 3553(f) for 

relief from the minimum mandatory sentence” because he had written “a letter describing 

his own involvement in the conspiracy.” Acosta-Olivas, 71 F.3d at 377. The government 

appealed, contending the defendant’s letter describing only his own involvement in the 

drug conspiracy did not satisfy § 3553(f)(5), which requires a defendant to “truthfully 

provid[e] 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 . . . .” 18 U.S.C. § 3553(f)(5) (emphasis added). This court agreed with 

the government and remanded the case with the following instructions: 

[W]e REMAND this case with instructions to vacate the sentence 

and resentence. If, at resentencing, the court makes a factual finding that, in 

deciding what information to disclose to the government, Mr. AcostaOlivas relied upon the district court’s interpretation of § 3553(f)(5), the 

court shall allow him the opportunity to comply with the statute as this 

court has interpreted it in this opinion. 

Acosta-Olivas, 71 F.3d at 379-80. 

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 The government and our dissenting colleague rely heavily on Acosta-Olivas’

remand instruction. Dissent Op. at 3, 11-12. They interpret it to imply a general 

prohibition against permitting a defendant to comply with § 3553(f) by providing the 

government information on remand before resentencing. But they place more weight on 

the instruction than it can bear. Acosta-Olivas simply did not address, either in its holding 

or in its remand instruction, whether the phrase “the sentencing hearing” is limited to the 

original sentencing hearing. 

Like Galvon-Manzo, Acosta-Olivas neither states nor implies a general rule 

against allowing a defendant to comply with § 3553(f) by making disclosures for the first 

time on remand before a resentencing hearing. Rather, when a district court determines 

whether a defendant has satisfied § 3553(f), it must consider any information the 

defendant provided to the government for the first time before a resentencing hearing. Cf.

Verners, 103 F.3d at 111 (considering whether defendant’s statements on remand 

regarding her knowledge of criminal enterprise were truthful and complete). 

 Finally, we note that several of our sister circuits have assumed without deciding 

that § 3553(f)(5) permits consideration of the safety-valve provision at resentencing. See, 

e.g., United States v. Purnell, 361 F. App’x 384, 385 (3d Cir. 2010) (unpublished) (noting 

that defendant qualified for safety-valve sentence upon resentencing when he “met with 

law enforcement authorities following remand”);2 United States v. DeMott, 513 F.3d 55, 

58 (2d Cir. 2008) (assuming district court could consider defendant’s “additional safety 

 2 But compare United States v. Giraldo, 52 F. App’x 584, 586-87 (3d Cir. 2002) 

(unpublished) (holding a safety-valve disclosure made before resentencing, and not 

before the initial sentencing, is untimely). 

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valve proffer prior to a second resentencing,” and noting § 3553(f)(5) requires the 

resentencing judge to make factual findings as to whether defendant made complete and 

truthful proffer); United States v. Flanagan, 80 F.3d 143, 145 n.1 (5th Cir. 1996) 

(pointing out that government did not argue newly enacted safety-valve provision could 

not be considered at resentencing hearing and noting “without expressing an opinion 

regarding whether the [safety-valve] provision should apply at a resentencing,” that 

district courts have found the provision applies to a resentencing on remand). 

Moreover, the unpublished Ninth Circuit case cited by the government in support 

of its interpretation, United States v. Ferret-Castellanos, 108 F.3d 339, 1996 WL 733198 

(9th Cir. 1996) (Table) (unpublished), is distinguishable. There, the Ninth Circuit held 

that a defendant’s offer to truthfully provide information at two resentencing hearings 

was “too late” under § 3553(f)(5). 1996 WL 733198, at *2. But the court’s more 

significant concern seemed to be truthfulness, rather than timeliness of the disclosures, as 

the court emphasized that the defendant had already “lied to the court at his initial 

sentencing hearing.” 1996 WL 733198, at *2. This unpublished, out-of-circuit decision, 

based on threadbare analysis and distinct facts, has little persuasive value.3

 

On the whole, the cases discussed by the government do not dissuade us from 

interpreting § 3553(f) consistently with the plain language of the statute. Consequently, 

 3

 Although not specifically pertinent to our discussion here since this case does not 

involve prior untruthful disclosures, we note that Ferret-Castellanos appears inconsistent 

with a more recent Ninth Circuit case United States v. Mejia-Pimental, 477 F.3d 1100 

(9th Cir. 2007). There, the court held that a defendant remained eligible for the safety 

valve at resentencing despite his prior lies and omissions in support of his safety-valve 

request. 

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we hold the district court erred in concluding that because Figueroa had not made the 

requisite disclosures before his initial sentencing hearing, it was not required to consider 

whether the information Figueroa provided to the government otherwise satisfied the 

requirements of § 3553(f). 

III. The district court’s error was not harmless. 

Finally, the government argues the district court’s error was harmless because the 

district court indicated that had it reached the merits, it would have denied Figueroa’s 

safety-valve request. In support, the government cites several statements made by the 

district court on remand expressing skepticism about the truthfulness of Figueroa’s 

disclosures and the level of his involvement in the “drug operation.” 

 “Harmlessness must be proven by a preponderance of the evidence, and the 

burden of making this showing falls on the beneficiary of the error—in this case, the 

government. A harmless error is that which did not affect the district court’s selection of 

the sentence imposed.” United States v. Lente, 647 F.3d 1021, 1037-38 (10th Cir. 2011) 

(citations and internal quotation marks omitted). 

After carefully reviewing the sentencing transcript and the district court’s 

statements, we do not interpret those statements as a clear indication the district court 

would have denied Figueroa’s request for safety-valve relief had it considered the 

substance of Figueroa’s disclosures. 

First, the district court carefully distinguished its consideration of the “timeliness” 

of the disclosures and the truthfulness of the same. Second, the court generally prefaced 

its statements regarding Figueroa’s depth of involvement in the conspiracy with qualifiers 

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such as “it does seem” and the “facts here suggest.” Resent. Hr’g Tr., Doc. 412, at 30. 

Finally, we cannot ignore that at resentencing the government repeatedly characterized 

Figueroa’s statements as both truthful and complete. In fact, the prosecutor specifically 

represented to the court that prior to the resentencing hearing, Figueroa truthfully 

provided to the government all information and evidence he possessed concerning the 

offenses. 

In sum, the government has not shown by a preponderance of the evidence that the 

district court would have denied Figueroa’s request for safety-valve relief had it fully 

considered that request. Therefore, we remand this case for resentencing yet again. 

On this remand, we instruct the district court to resentence Figueroa “in 

accordance with section 3553,” as required by § 3742(g), which necessarily includes the 

determination of Figueroa’s eligibility for safety-valve relief. 

CONCLUSION

The district court erred in concluding, as a matter of law, that it could not consider 

Figueroa’s disclosures in support of his application of 18 U.S.C. § 3553(f) at resentencing 

simply because Figueroa failed to make the requisite disclosures before his initial 

sentencing hearing. Consequently, we reverse Figueroa’s sentence and remand for 

resentencing in accordance with § 3553, including a determination of Figueroa’s 

eligibility for a reduced sentence under § 3553(f). 

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United States v. Figueroa-Labrada, No. 13-6278 

PHILLIPS, Circuit Judge, dissenting: 

I agree with the majority that the text of 18 U.S.C. § 3553(f) permits a defendant to 

request safety-valve relief for the first time at a resentencing. But I disagree with the 

majority that a defendant may support that request with safety-valve information first 

provided to the government after the initial sentencing hearing. The plain language of 

§ 3553(f)(5), and our case law interpreting it, requires full and truthful disclosure before 

the initial sentencing hearing begins. Because I conclude that the district court did in fact 

consider Figueroa’s safety-valve request at the resentencing hearing and properly denied 

it because Figueroa had failed to disclose the necessary safety-valve information before 

his initial sentencing hearing, I respectfully dissent. 

I. Safety-Valve Relief and Resentencing 

Under 18 U.S.C. § 3742(f)(1), we remand for “further sentencing proceedings” if we 

conclude that a district court erred in imposing a sentence. Under § 3742(g), “[a] district 

court to which a case is remanded pursuant to subsection (f)(1) . . . shall resentence a 

defendant in accordance with section 3553 and with such instructions as may have been 

given by the court of appeals. . . .” Nothing suggests that a district court may pick and 

choose what parts of § 3553 to apply at resentencing. Because the safety-valve provision 

is found within § 3553, I conclude that a district court must consider safety-valve 

eligibility at any resentencing if a defendant seeks it.1 See United States v. Verners, 103 

 1

 Consistently with this view, I read § 3553(f)’s requirement that district courts 

consider safety-valve relief after the five listed showings “at sentencing” to mean at the 

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2 

F.3d 108, 110 n.3 (10th Cir. 1996) (finding that safety-valve relief under USSG § 5C1.2 

“is not discretionary; it requires a departure from the minimum sentence on finding that 

certain conditions are met.”). 

II. Timely Disclosures Under § 3553(f)(5) 

This appeal raises a single question:2

 What does 18 U.S.C. § 3553(f)(5) mean when it 

requires that “not later than the time of the sentencing hearing” a defendant has fully and 

truthfully provided to the government all information and evidence he has about his 

offense or offenses? The district court concluded, and the government now argues,3

 that 

the time for disclosing the necessary information ended when Figueroa’s original 

 

sentencing and any resentencing. And I also agree that this use of “at sentencing” is 

“within the same sentence” as § 3553(f)(5)’s use of “not later than the time of the 

sentencing hearing . . . .” See Maj. Op. at 7 (emphasis in original). But the majority must 

also recognize that subsection (f)’s “at sentencing” is separated by more than one 

hundred words—and four numbered conditions—from subsection (f)(5)’s “not later than 

the time of the sentencing hearing.” Because sentencings can be followed by 

resentencings, as here, I disagree with the majority that “at sentencing” and “the time of 

the sentencing hearing” must always refer to the same sentencing hearing. Indeed, if they 

do, one can forcefully argue that subsection (f)(5)’s quoted timing condition is 

superfluous. 

2

 I agree with the majority that the district court did not make sufficient findings that it 

would have denied Figueroa safety-valve relief for failing to provide a full account of his 

and his co-conspirators’ criminal activity. Maj. Op. at 15–16. That said, the district court 

did express skepticism about whether Figueroa had indeed fully disclosed all information 

and evidence required under § 3553(f)(5). R. vol. III at 46-47. This issue remains alive on 

remand. 

3

 As the majority notes, the government told the district court at resentencing that it 

considered Figueroa’s disclosures timely, stating that “the case law seems to suggest 

safety valve can be considered for re-sentencing.” Maj. Op. at 4; R. vol. III at 24, 29. At 

oral argument, the government’s counsel explained its change in position as resulting 

from “fresh eyes on the district court ruling and further legal analysis of the district 

court’s ruling.” 

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3 

sentencing hearing began. In other words, the district court concluded that § 3553(f)(5)’s 

time limit of “not later than the time of the sentencing hearing” did not stretch forward to 

allow disclosure of safety-valve information long after the initial sentencing commenced. 

I agree with this view. 

A. The plain language of § 3553(f) and our court’s precedent forecloses any 

opportunity for Figueroa to make first-time safety-valve disclosures on remand. 

I would affirm because I believe—as supported by a key Tenth Circuit case—that the 

district court properly interpreted the plain language of 18 U.S.C. § 3553(f)(5). In United 

States v. Acosta-Olivas, 71 F.3d 375 (10th Cir. 1995), the district court awarded safetyvalve relief4

 to Acosta-Olivas after requiring that he truthfully disclose only his own 

offense conduct, but not that of his co-conspirators. Id. at 377. Because the district court 

erred by limiting the required disclosure, this court remanded “this case with instructions 

to vacate the sentence and resentence.” Id. at 379–80. Because this court could not tell 

whether the district court’s legal error had caused Acosta-Olivas’s incomplete disclosure, 

we remanded as follows: “If, at resentencing, the court makes a factual finding that, in 

deciding what information to disclose to the government, Mr. Acosta-Olivas relied upon 

the district court’s interpretation of § 3553(f)(5), the court shall allow him the opportunity 

to comply with the statute as this court has interpreted it in this opinion.” Id. at 380. 

 

 4

 Section 3553(f) applies “to all sentences imposed on or after” September 23, 1994, 

ten days after the date of enactment. Pub. L. No. 103-322, § 80001(a), 108 Stat. 1796, 

1985-86 (1994). 

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4 

The upshot of this remand language from Acosta-Olivas seems straightforward. 

Because we allowed Acosta-Olivas to produce more evidence about his co-conspirators’ 

activities if the district court’s error had caused him to withhold that information, it 

sensibly follows that we disallowed him to produce the additional information if the 

district court’s error did not cause his deficient disclosure. For a variety of reasons, I 

conclude that Acosta-Olivas meant just exactly that. 

First, the plain language of § 3553(f)(5) requires full disclosure of information to the 

government “not later than the time of the sentencing hearing.” (emphasis added.) The 

majority treats the article “the” as unimportant, instead choosing to focus on the words 

“sentencing hearing.” Maj. Op. at 6-7. But “the” matters. After all, it is our duty to give 

effect, if possible, to every clause and word of a statute. Duncan v. Walker, 533 U.S. 167, 

174 (2001). The singular “the” lends support to an interpretation that “the sentencing 

hearing” refers to one sentencing hearing—which, because it is the first one, must be the 

original sentencing hearing. 

Second, other circuits examining Acosta-Olivas construe it the same way that I do. 

They view Acosta-Olivas’s remand instruction as carving an interest-of-justice exception 

to a general rule prohibiting a defendant from disclosing additional safety-valve 

information at resentencings. See United States v. Madrigal, 327 F.3d 738, 746-47 (8th 

Cir. 2003) (stating that “the Tenth Circuit [in Acosta-Olivas] has suggested that a 

defendant, under the right circumstances, may also qualify for safety valve relief if the 

defendant comes clean at resentencing.” (emphasis added)); United States v. Flanagan, 

80 F.3d 143, 147 (5th Cir. 1996) (citing Acosta-Olivas and allowing the defendant an 

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5 

opportunity on remand to disclose truthful information for safety-valve relief if the 

district court’s legal error in placing the burden of proof on the government led to 

Flanagan’s not fully disclosing information at his original sentencing hearing, and barring 

safety-valve relief if not). 

Third, I agree with the government that it would be an odd result to disallow Figueroa 

from proffering safety-valve disclosures after his original sentencing hearing had begun, 

but then to allow him to do so months later. See Appellee’s Br. at 17–18. In fact, our 

precedent emphasizes the sound policy of requiring a defendant to disclose information 

before the original sentencing. In United States v. Galvon-Manzo, 642 F.3d 1260, 1268 

(10th Cir. 2011), we approved of a general safety-valve policy as “serv[ing] the 

government’s interest in full, truthful disclosures from defendants about their own and 

related criminal conduct.” Clarifying this, we noted that “[f]orcing the government to 

wait until the middle of a sentencing hearing before it obtains such information interferes 

with that policy and forces the government to conduct further investigations to determine 

the truthfulness of the disclosures.” Id. 

Consequently, we did not permit a defendant to disclose additional safety-valve 

information—even during his original sentencing hearing—because “a defendant may lie 

to the government and still qualify for safety valve relief merely by altering his story at 

sentencing in order to comport with the evidence presented by the government during the 

hearing.” Id. (quoting United States v. Marin, 144 F.3d 1085, 1095 (7th Cir. 1998)). 

Accordingly, given the importance of the timeliness of fully truthful disclosure, 

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6 

contrasted with Figueroa’s long delay in disclosing, I believe these policy grounds also 

are consistent with my interpretation of Acosta-Olivas. 

Fourth, showing that Acosta-Olivas meant what it said, this court 16 years later said it 

again in Galvon-Manzo, 642 F.3d at 1268. That case involved two men stopped for 

speeding in a car containing 12 kilograms of cocaine in a hidden compartment. Id. at 

1262. The two men had been in regular contact with a California source subject to a Drug 

Enforcement Administration (DEA) wiretap; law enforcement had intercepted multiple 

calls between the defendants and the drug source. Id. When police arrested them, the 

defendants denied knowing the cocaine was in their car. Id. Then, afterward, both 

defendants failed to truthfully disclose information during debriefing proffers with the 

DEA—where agents specifically informed the defendants that a sentence reduction 

depended on their providing honest information. Id. at 1263. Before sentencing, GuzmanManzo emailed an affidavit to the government providing only limited details about his 

drug activity. Id. At sentencing, his counsel requested that Guzman-Manzo be “afforded 

another opportunity to provide a statement to the government,” which I understand to 

mean another chance to sit down for a debriefing proffer. Id. at 1264. 

The district court denied this request, saying that “in view of the fact that there have 

been two dishonest attempts, I would not be prepared to give any credence to what he 

said the third go around. . . .” Id. The district court declared the two defendants ineligible 

for safety-valve relief, pointing to their failed proffers and lack of credibility. Id. at 1265. 

In response to Galvon-Manzo’s statement that he was “prepared today at sentencing” to 

clarify his and his co-defendant’s role in the offense, the district court replied: 

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7 

[T]here comes a time when this ends. . . . Two opportunities, now when it is 

clear that his misstatements and omissions and flat-out falsehoods have 

been revealed, now is not the time when a defendant can come in and say, 

“All right, I was dishonest before, but now in front of you, judge, I’ll tell 

the truth.” I would view that with some skepticism, and that is not the 

purpose of this. 

Id. 

The Galvon-Manzo court held—as a matter of first impression—that “the resolution 

of disputes arising out of or relating to the debriefing process lies within the sound 

discretion of the district court.” Id. at 1267. In this regard, it explained that “the district 

court may exercise discretion to determine whether a particular defendant should be 

entitled to one, two or several debriefing sessions.” Id. Next, addressing a separate issue 

of timeliness of a defendant’s safety-valve disclosures, the court also held that “generally 

speaking, any and all disclosures for safety-valve purposes are timely only if they occur 

prior to the commencement of the sentencing hearing.” Id. (emphasis added) (citations 

omitted). Under these standards, the court concluded that the district court had not erred 

in its “refusal to allow Guzman-Manzo to make further disclosures after the sentencing 

hearing commenced, in an effort to obtain safety-valve relief.” Id. at 1268–69. 

On appeal, relying on Acosta-Olivas, Guzman-Manzo argued “if [the Tenth Circuit] 

conclude[s] that ‘disclosure at or during the sentencing hearing is not timely, such a 

pronouncement should be effective prospectively and should not preclude the defendant 

from attempting to comply with such a reading of the statute on remand.’” Id. at 1269 n.5 

(citation omitted). In essence, he argued that because any such rule was not effective at 

his sentencing, it should not bind him. 

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8 

Important for our purposes, the Galvon-Manzo court commented on the meaning of 

Acosta-Olivas: “We allowed the defendant in Acosta-Olivas on remand and at 

resentencing to comply with the safety-valve provision if the court, at resentencing, found 

that the defendant had relied upon an erroneous interpretation of the statute by the district 

court at the initial sentencing.” Id. (emphasis in original). The court declined to remand, 

concluding that the district court had “provided no such erroneous interpretation and we 

see no reason to remand the matter for resentencing.” Id. The court further concluded that 

the district court “did not decide against Guzman-Manzo because he was seeking to 

provide the information too late (i.e., after the sentencing hearing commenced) but 

because the district court decided that he was simply not reliable and truthful.” Id. 

I share the Galvon-Manzo court’s understanding of Acosta-Olivas. In Galvon-Manzo, 

the court italicized the “if”—emphasizing the condition on the district court’s allowing 

additional safety-valve disclosures at a resentencing. Id. As did Acosta-Olivas, the court 

spoke of when a defendant is “allowed” to do so. Here, like Guzman-Manzo and unlike 

Acosta-Olivas, Figueroa was not allowed a chance to offer new disclosures at a 

resentencing hearing because his deficient (completely lacking) safety-valve disclosures 

resulted from his own choice not to fully disclose at his original sentencing hearing, not 

from any legal error of the district court. 

B. Figueroa’s arguments are unavailing. 

As stated, I believe that the Acosta-Olivas court “allowed” Acosta-Olivas to disclose 

additional safety-valve information before his resentencing “if” he had failed to do so at 

the original sentencing hearing because of the district court’s legal error, but that it also 

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9 

otherwise disallowed any additional disclosures. Acosta-Olivas, 71 F.3d at 379–80. Yet 

Figueroa responds to this view with a rival interpretation. He reads Acosta-Olivas’s 

language as “simply set[ting] a limit on the district court’s usual discretion to refuse 

repeated proffers from a defendant.” Appellant’s Br. at 21. Along the same line, he says 

that “[a]ll this Court was saying in Acosta-Olivas is that this usual discretion didn’t apply 

if Acosta-Olivas’s failure to make a complete proffer could be innocently explained by 

his reliance on the district court’s interpretation. In that situation, the court was required 

to accept additional proffer.” Id. (emphasis in original). For a variety of reasons, I am 

unpersuaded by the reasoning underlying Figueroa’s creative argument. 

First, starting with the basics, I agree that Galvon-Manzo held that “the resolution of 

disputes arising out of or relating to the debriefing process lies within the sound 

discretion of the district court” and that “the district court may exercise discretion to 

determine whether a particular defendant should be entitled to one, two or several 

briefing sessions.” 642 F.3d at 1267. But Galvon-Manzo set the time for exercising this 

discretion as sometime before the original sentencing hearing begins. Figueroa blithely 

overextends this discretion as also applying at resentencings. As mentioned, he explains 

Acosta-Olivas’s remand condition as “simply set[ting] a limit on the district court’s usual 

discretion to refuse repeated proffers from a defendant.” Appellant’s Br. at 21. He offers 

no supporting authority that this “usual discretion” applies when a defendant first 

requests safety-valve relief at a resentencing and, not until then, discloses the needed 

information. 

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10 

Second, Figueroa’s reading of the Acosta-Olivas court’s remand language is 

implausible. As mentioned, Figueroa asserts that Acosta-Olivas’s remand language 

impliedly says that the district court may also allow him the opportunity to disclose new 

information on remand even if it finds that he chose not to do so at resentencing without 

this reliance. See Appellant’s Br. at 21. The short answer is that this court in AcostaOlivas did not say that. Instead, it spoke of allowing further disclosures at resentencing 

“if” he would have provided the same information at his original sentencing absent the 

district court’s legal error. See Acosta-Olivas, 71 F.3d at 380. Acosta-Olivas’s tight 

remand language strongly supports a reading that, despite § 3553(f)(5)’s general 

prohibition against late disclosures, Acosta-Olivas got leeway to disclose safety-valve 

information after his original sentencing only if necessary to avoid any injustice caused 

by the district court’s legal error that he need not disclose the conduct of his coconspirators. See Flanagan, 80 F.3d at 147 (citing Acosta-Olivas and ruling that if 

defendant’s failure to fully disclose was not caused by the district court’s erroneous 

interpretation of the safety-valve statute, “the safety valve statute is not available” and the 

“district court should . . . proceed to resentence the defendant without the benefit of such 

provision.”). 

Third, we know that if Figueroa had tried to make safety-valve disclosures after his 

original sentencing hearing began, he would have run afoul of the general rule that “any 

and all disclosures for safety-valve purposes are timely only if they occur prior to the 

commencement of the sentencing hearing.” Galvon-Manzo, 642 F.3d at 1267. And had he 

tried to appeal on plain error that he was entitled to safety-valve despite not raising it in 

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11 

the district court, he would have lost. See United States v. Williams, 480 F. App’x 940, 

942–43 (10th Cir. 2012) (unpublished) (declining to reverse for plain error failure to 

award safety-valve relief even when substantial-assistance relief had been awarded under 

USSG § 5K1.1 “because a hearing on remand might show that the defendant who claims 

entitlement to a safety-valve reduction was in fact not so entitled.”). Figueroa’s “blinkoff, blink-on” switch for safety-valve disclosures makes little sense, results in disparities, 

and has no solid law behind it. 

Fourth, as the government notes, the Acosta-Olivas court had no reason to fear that 

the district court would treat Acosta-Olivas poorly on remand. Appellee’s Br. at 22. 

Indeed, the district court had treated him too kindly the first time around (at least under 

the plain language of § 3553(f)(5)). Under these circumstances, it is hard to imagine a 

need to guard Acosta-Olivas against the district court’s depriving him of an opportunity 

to fully disclose the details of his offense. I do not believe that the remand was to guard 

against this long shot. 

C. The Majority’s interpretation of Acosta-Olivas’s remand instruction is untenable. 

The majority disputes that Acosta-Olivas’s remand instruction “impl[ies] a general 

prohibition against permitting a defendant to comply with § 3553(f) by providing the 

government information on remand before resentencing.” Maj. Op. at 13. Yet without 

any analysis of the remand instruction’s language or the context in which Acosta-Olivas 

used it, the majority dismisses the instruction by concluding that it “did not address . . . 

whether the phrase ‘the sentencing hearing’ is limited to the original sentencing hearing.” 

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Maj. Op. at 13. The summary conclusion enables the majority to avoid addressing two 

problems. First, under Acosta-Olivas, the majority should acknowledge that a district 

court may at least sometimes refuse to consider safety-valve information disclosed after 

an initial sentencing but before a resentencing. This runs counter to the majority’s rule 

that § 3553(f)(5) always commands district courts on remand to allow defendants second 

opportunities to disclose additional safety-valve information and then to determine 

whether the delayed disclosures entitle defendants to safety-valve relief. Maj. Op. at 2, 

10. The majority points to nothing in § 3553(f) enabling district courts to condition—as 

this court did in Acosta-Olivas—what the majority views as an absolute statutory right to 

present safety-valve information on remand. I see nothing in §3553(f) doing so. Quite 

simply, the majority’s rule cannot accommodate Acosta-Olivas’s condition. If the 

majority’s rule is right, then Acosta-Olivas is wrong, and the majority should take the 

necessary steps to try to overrule it. 

Second, the majority’s interpretation of Acosta-Olivas and § 3553(f)(5) leads to an 

odd result—and one unlikely to be Congress’s intended result. Under the majority’s 

reading, someone like Acosta-Olivas is barred from supplementing his safety-valve 

disclosure despite already having at least partially disclosed the necessary information 

and now wanting to provide the rest (perhaps his coconspirators had pleaded guilty after 

his initial sentencing hearing), but someone like Figueroa can provide nothing and later 

have his earlier complete silence rewarded with an opportunity to disclose fully. In 

evaluating the sensibility of such a safety-valve scheme, we need to remember that 

Figueroa had every chance to seek safety-valve relief at his original sentencing and to 

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13 

make the necessary safety-valve disclosures before that hearing started.5

 Figueroa’s total 

failure to disclose information—as opposed to Acosta-Olivas’s partial failure—should 

not propel Figueroa to greater relief on appeal. 

 1. The Majority’s cases do not compel its result.

To bolster its view that § 3553(f)(5) requires a district court to allow a previously 

silent defendant to disclose the necessary truthful information at a resentencing, the 

majority relies on Flanagan, 80 F.3d at 145 n.1, for a footnote sentence saying that 

“without expressing an opinion regarding whether the [safety-valve] provision should 

apply at resentencing, we note that district courts have found the provision applies to a 

resentencing on remand.” Maj. Op. at 14. This portion of Flanagan addresses whether 

defendants with pending appeals when § 3553(f) was enacted can qualify for safety-valve 

relief on remand. Additionally, Flanagan cited just one district court case in support, 

United States v. Buffington, 879 F. Supp. 1220, 1222 (N.D. Ga. 1995). That case was 

before the district court for an original sentencing—there was no remand. Although not 

an issue at its sentencing hearing, the court remarked that “[a]t least one court, however, 

has found that the new law applies to a resentencing on remand from a court of appeals 

even if the initial sentence occurred prior to the effective date.” Id. (citing United States 

v. Ekwunoh, 888 F. Supp. 364, 365 (E.D.N.Y. 1994)). This offers Figueroa no help 

 5

 I recognize that Figueroa now blames his trial counsel for his not seeking safetyvalve relief at his original sentencing. As did the district court, I view this as an issue of 

ineffectiveness of counsel, one which is better addressed in a petition under 28 U.S.C. 

§ 2255. We have no way of knowing the reason Figueroa did not proffer, and ineffective 

assistance of counsel is just one of the myriad of possibilities. 

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14 

because it only considers when § 3553(f) may apply when the original sentencing took 

place before § 3553(f) took effect. 

In fact, as I explained earlier, Flanagan helps the government much more than it helps 

Figueroa. Flanagan did not allow the relief Figueroa now demands under § 3553(f)(5). 

Instead, that court simply allowed a remand on the question of safety-valve relief to 

ensure that Flanagan’s failure to establish safety-valve eligibility did not result from the 

district court’s erroneously placing the burden on the government to show ineligibility. 

Flanagan, 80 F.3d at 147 (citing Acosta-Olivas, 71 F.3d at 380). Accordingly, all told, 

Flanagan supports my view of Acosta-Olivas and offers Figueroa no help. 

The majority also contends that United States v. Mejia-Pimental, 477 F.3d 1100 (9th 

Cir. 2007), supports its holding. Maj. Op. at 14 n.3. In that case, the court vacated the 

defendant’s sentence and remanded a third time. Mejia-Pimental, 477 F.3d at 1102. In the 

midst of these lengthy proceedings, all of Mejia-Pimental’s co-defendants, including an 

uncle, had pleaded guilty. Id. at 1102-03. Before his third sentencing hearing, MejiaPimental sought to “provide an in-person safety valve proffer” with the government. Id.

at 1103. The government refused because Mejia-Pimental had previously lied and 

declined to proffer. Id. Soon before his third sentencing, Mejia-Pimental delivered a letter 

to the government detailing his involvement in the charged offenses and that of other 

persons too. Id. Although the government did not contest the truthfulness or completeness 

of the disclosure, the district court denied relief, concluding that Mejia-Pimental had not 

exhibited good-faith cooperation by awaiting pleas of his co-defendants before disclosing 

information. Id. The Ninth Circuit reversed, concluding that “the good faith inquiry 

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15 

focuses on the defendant’s cooperation in fully disclosing his knowledge of the charged 

offense conduct, not on identifying a defendant’s pre-sentencing delays in providing this 

information.” Id. at 1106. 

The majority can rightly cite this case as one allowing a first effort at obtaining 

safety-valve relief at a resentencing hearing.6

 But the case is not persuasive because the 

government never contested that issue,7

 leaving the court simply to allow it without 

analyzing any of § 3553(f)’s language. Rather, the Ninth Circuit focused on whether 

Mejia’s efforts to proffer were in “good-faith.” Id. at 1104–08. In addition, the Ninth 

Circuit did not need to consider the effect of Acosta-Olivas in its analysis. The same is 

true of the majority’s other cases in which the appellate court allowed safety valve 

eligibility to be considered for the first time on resentencing absent any objection from 

the government. See United States v. Purnell, 361 F. App’x 384, 385–86 (3d Cir. 2010) 

(unpublished) (summarily stating that “because Purnell met with law enforcement 

authorities following remand, he qualified for the safety valve provision in 18 U.S.C. 

§ 3553(f) and U.S.S.G. § 5C1.2(a). . . .”); United States v. DeMott, 513 F.3d 55, 58 (2d 

Cir. 2008) (although it is unclear from the opinion when the defendant first sought safety-

 6

 On the other hand, the government could cite Mejia-Pimental for disallowing any 

additional disclosures at the latest resentencing on remand: “Therefore, on remand, the 

district court must consider whether that final written proffer was in fact truthful and 

complete.” Id. at 1109. 

7

 Rather, the government opposed safety-valve relief because the government already 

knew the information the defendant would have provided. Id. at 1104–05. 

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16 

valve relief, the court noted that “[t]he government has agreed to allow Day to make an 

additional safety valve proffer prior to a second resentencing.”).8

 2. The Majority fails to undermine opposing cases.

In United States v. Ferret-Castellanos, 108 F.3d 339, 1996 WL 733198 (9th Cir. 

1996) (unpublished table decision), a drug-trafficking case, the Ninth Circuit required 

that a defendant’s disclosures under § 3553(f) occur before his original sentencing rather 

than allowing them before his two resentencings. Id. at *2. It found disclosures made 

before the resentencing had come “too late.” Id. The majority dismisses the case as being 

more concerned about the defendant’s truthfulness rather than untimeliness of his safetyvalve disclosures. Maj. Op. at 14. I do not read the case that way. After all, the court 

identified the issue before it as whether the defendant was ineligible for safety-valve 

relief “because he failed to disclose all information and evidence concerning his offense 

at his initial sentencing hearing.” Ferret-Castellanos, 1996 WL 733198, at *1. I see 

nothing in Ferret-Castellanos suggesting that the defendant’s disclosures at resentencing 

were untruthful. I simply see his explaining to the court his reason for delaying disclosure 

beyond his original sentencing hearing—“Ferret-Castellanos told the court that ‘for 

 8

 Consistent with that, I do not believe that United States v. Washman, 128 F.3d 1305, 

1306 (9th Cir. 1997), disallows a defendant from disclosing additional safety-valve 

information to the government before a resentencing, despite the district court’s deciding 

on remand that it would review safety-valve eligibility on the record as it stood before the 

remand. The Ninth Circuit had no reason to analyze the timeliness of pre-resentencing 

disclosures because the defendant had not raised that as an issue. Id. at 1308. Similarly, 

although United States v. Schreiber, 191 F.3d 103, 106 (2d Cir. 1999), certainly supports 

my position when it says that “[t]he plain words of the statute provide only one deadline 

for compliance,” I recognize that it concerned the timeliness of safety-valve disclosures 

before an initial sentencing and not a resentencing. 

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17 

reasons of family loyalty and/or for legal reasons’ he did not tell the Government prior to 

trial that his uncle had given him the car to drive.” Id. 

In addition, the majority tries to undercut Ferret-Castellanos by pointing to MejiaPimental, a later Ninth Circuit case that “appears inconsistent” with it. Maj. Op. at 14 n.3. 

I discussed Mejia-Pimental in some detail in the preceding section. Here, I would just 

note that Mejia-Pimental first tried to proffer before his original sentencing and then quit 

trying until soon before his third sentencing. Mejia-Pimental, 477 F.3d at 1102-03. The 

government did not challenge as untimely his attempt to gain safety-valve eligibility. Id. 

at 1103. Accordingly, the district and appellate court simply plowed forward without ever 

really considering the question. While I agree that the case does involve a defendant who 

tried to re-proffer at resentencing, I do not put much stock in the case as establishing a 

right to do so. Without the government’s objecting to timeliness, and without any 

analysis from the Ninth Circuit on that issue, I hesitate to treat Mejia-Pimental as more 

persuasive than Ferret-Castellanos, when Ferret-Castellanos at least resolved the issue 

after the government objected to the timeliness of the defendant’s disclosure of 

information. 

I also downplay Mejia-Pimental’s persuasiveness because it cited—but did not 

discuss—another published Ninth Circuit decision speaking to our issue. In United States 

v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996), Real-Hernandez was charged with 

offloading 13 duffel bags containing 971 pounds of marijuana. Id. at 358. RealHernandez pleaded guilty and, at his debriefing, he denied knowing that he had offloaded 

marijuana. Id. Two months later, Real-Hernandez was charged in a second case with 

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18 

loading about 1,800 pounds of marijuana on a boat two years earlier. Id. At his 

sentencing in the first case, Real-Hernandez sought safety-valve relief. Id. The 

government opposed this, pointing to the conduct underlying the second charge to show 

that at his proffer Real-Hernandez had not fully disclosed his criminal conduct. Id. at 359. 

Because Real-Hernandez was innocent until proven guilty, the court continued the 

sentencing hearing in the first case until the second case was resolved. Id. 

Four months later, Real-Hernandez pleaded guilty in the second case a day after 

proffering to a separate government attorney and winning a safety-valve recommendation 

from him in the second case. Id. at 359. At his sentencing for the first case, the 

government argued that it was too late for Real-Hernandez to qualify for safety-valve 

relief. Id. Although the opinion is unclear on this point, it says that the district court 

agreed, stating that it would not “exercise the prerogative . . . to go below the mandatory 

minimum in this case.” Id. at 360. The Ninth Circuit noted that it had “held in similar 

circumstances that such reasoning does not permit meaningful appellate review.” Id.

(citations omitted). Because the district court had not given reasons for denying safetyvalve relief, the Ninth Circuit vacated the sentence and remanded for resentencing. Id. 

As I read Real-Hernandez, the court remanded for the district court to determine 

whether he had fully disclosed information under § 3553(f)(5) at the time of his original 

sentencing. It held that “on remand Real-Hernandez must show that he ‘truthfully 

provid[ed] to the Government all information and evidence [he] ha[d] concerning the 

offense or offenses.’” Id. at 362. The court looked to the date of the original sentencing 

(April 17, 1995) to establish the “time of sentencing” under § 3553(c) and just a few lines 

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19 

later referred to “at sentencing” under § 3553(f). Id. at 360. Nothing suggests that the 

court thought its ordered resentencing hearing would fit under § 3553(f)(5)’s “not later 

than the time of the sentencing hearing” requirement, or allowed further disclosures of 

safety-valve information on remand. Based on Real-Hernandez, I cannot share the 

majority’s appraisal of Mejia-Pimental.

9

III. Conclusion 

I agree with the majority that § 3553(f) applies at resentencing hearings with the same 

force as at initial sentencing hearings. Accordingly, I agree that a district court must 

consider a defendant’s request for safety-valve relief, even if first made before 

resentencing. But I believe that a defendant is stuck with whatever information he 

disclosed before the original sentencing hearing started. Because Figueroa offered no 

safety-valve disclosures to the government before that time, the district court correctly 

denied Figueroa’s safety-valve request at the resentencing hearing. For the foregoing 

reasons, I respectfully dissent. 

 9

 The majority cites one case opposing its interpretation of § 3553(f)(5). Maj. Op. at 

13 n.2. In United States v. Giraldo, 52 F. App’x 584, 585–88 (3d Cir. 2002) 

(unpublished), the Third Circuit rejected the defendant’s argument that he could make a 

timely proffer at resentencing, when the defendant first requested safety-valve relief. At 

the same time, the Third Circuit looked to its own mandate rule to conclude that, “under 

the circumstances presented . . . [the defendant] waived his ability to avail himself of the 

Safety Valve provision.” Id. at 587–88. 

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