FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 September 19, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-11597

Non-Argument Calendar

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D. C. Docket No. 01-01138-CR-JEM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DAVID BRIAN ORSINI, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 19, 2005)

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

David Brian Orsini appeals his 70-month prison sentence in connection with

his plea of guilty to one count of attempted possession with intent to distribute 100
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kilograms or more of marijuana. Orsini contends that the district court erred when

it denied him the benefit of the safety valve provision of the Sentencing Guidelines

and plainly erred when it sentenced him under a mandatory Guidelines regime. 

We conclude that Orsini was not entitled to a reduction in his sentence under the

safety valve of section 5C1.2 of the Guidelines, and although the district court

erred, under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), when it

sentenced Orsini using mandatory Guidelines, that error did not affect Orsini’s

substantial rights. We affirm. 

Orsini, a Connecticut resident, was arrested as part of a sting that disrupted a

massive marijuana smuggling operation between Jamaica and Florida. At the time

of his arrest, Orsini was purchasing approximately 2000 pounds of marijuana from

an informant. Orsini pleaded guilty to one count of the four-count indictment

against him. Orsini’s plea agreement provided that he would be entitled to a

reduction in his sentence, under the safety valve of section 5C1.2, if he provided

the government a complete statement of any information he had regarding the

course of conduct of which his crime was a part. 

Orsini makes two arguments on appeal: first, he contends that the district

court erred when it denied the safety valve reduction in his sentence; and second,

Orsini contends the district court committed statutory error, under Booker, when it
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sentenced him under a mandatory Guidelines regime. We address each argument

in turn.

Regarding the decision to deny Orsini safety valve relief, we review the

factual findings of the district court for clear error and its legal conclusions de

novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004). To earn a

reduction based on the safety valve, Orsini must have “truthfully provided to the

[g]overnment 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.” U.S.S.G. § 5C1.2(a)(5). Orsini failed to satisfy that condition. 

Orsini admits that he did not provide the government information regarding

any of his past drug activities in Connecticut, nor did he disclose his plans for

distributing in Connecticut the 2000 pounds of marijuana he was buying in Florida. 

Orsini’s distribution plan was information that the government expected Orsini to

disclose under section 5C1.2(a)(5). Johnson, 375 F.3d at 1302. Orsini’s failure to

reveal that information led to the denial of relief under the safety valve, but Orsini

argues that this application of section 5C1.2 violated his privilege against selfincrimination under the Fifth Amendment. 

Although this Court has not addressed the issue whether section 5C1.2

violates the Fifth Amendment provision against self-incrimination, we have
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concluded that section 3E1.1, the acceptance of responsibility provision of the

Guidelines, does not violate the Fifth Amendment. Untied States v. Henry, 883

F.2d 1010, 1011 (11th Cir. 1989). “Section 3E1.1(a) is not a punishment; rather,

the reduction for acceptance of responsibility is a reward for those defendants who

express genuine remorse for their criminal conduct.” United States v. Carroll, 6

F.3d 735, 740 (11th Cir. 1993). Several of our sister circuits have concluded that

the same is true for section 5C1.2. United States v. Cruz, 156 F.3d 366, 374 (2d

Cir. 1998); United States v. Warren, 338 F.3d 258, 266 (3d Cir. 2003); United

States v. Washman, 128 F.3d 1305, 1307 (9th Cir. 1997); United States v.

Arrington, 73 F.3d 144, 149 (7th Cir. 1996). We agree with our sister circuits, and

we conclude, based on our previous decisions in Henry and Carroll, that denial of

the reward provided by section 5C1.2 did not violate Orsini’s rights under the Fifth

Amendment. 

We next turn to Orsini’s Booker argument. Orsini argues that the district

court committed statutory error, but he did not preserve this objection in the district

court. Our review is for plain error. United States v. Dowling, 403 F.3d 1242,

1245-47 (11th Cir. 2005). “An appellate court may not correct an error the

defendant failed to raise in the district court unless there is: (1) error, (2) that is

plain, and (3) that affects substantial rights. If all three conditions are met, an
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appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 1247 (internal citations and quotation marks omitted). 

Orsini’s argument regarding statutory error under Booker fails. Although

the district court erred when it sentenced Orsini under a mandatory Guidelines

system and, after Booker, that error is plain, United States v. Rodriguez, 398 F.3d

1291, 1298-99 (11th Cir. 2005), Orsini cannot establish that the error made a

difference and affected his substantial rights. The district court suggested that

Orsini’s sentence would have been lower if the safety valve applied, but even

under that condition, the district court explained that it would have sentenced

Orsini to approximately the same term of imprisonment. Nothing in the record

suggests that the district court would have entered a more lenient sentence under an

advisory Guidelines system. Id. at 1301; United States v. Fields, 408 F.3d 1356,

1361 (11th Cir. 2005). 

AFFIRMED.