United States Court of Appeals

For the First Circuit

No. 22-1473

UNITED STATES OF AMERICA,

Appellee,

v.

JESUS ARLEY MUNERA-GOMEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge] 

Before

Gelpí, Lynch, and Howard,

Circuit Judges.

David Eric Burdette, with whom Murat Erkan and Erkan & 

Associates were on brief, for appellant.

Alexia R. De Vincentis, Assistant United States Attorney, 

with whom Rachael S. Rollins, United States Attorney, was on brief, 

for appellee.

June 7, 2023
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GELPÍ, Circuit Judge. Defendant-Appellant Jesus Arley 

Munera-Gomez ("Munera") appeals his conviction and subsequent 

sentence for attempting to possess with intent to distribute five 

kilograms or more of cocaine, in violation of 21 U.S.C. § 846. 

Specifically, Munera contends that the district court erred by 

declining to order the government to provide use immunity to a 

defense witness, resulting in a violation of Munera's due process 

rights; precluding Munera's girlfriend from testifying about the 

undue pressure placed on Munera by a confidential source, thus 

undermining his entrapment defense; refusing to apply safety valve 

relief at sentencing, despite Munera satisfying the eligibility 

criteria; and impermissibly considering Munera's immigration 

status at sentencing. Finding his first three challenges lacking 

and his final argument waived, we affirm. 

I. Background

We begin by laying out the basic facts and procedural 

history of the case, with elaboration as needed in our analysis of 

the legal issues.

A. Facts

In August 2019, a confidential source ("CS") for the 

U.S. Drug Enforcement Administration ("DEA") approached Munera in 

a Colombian billiards bar in East Boston after hearing someone 
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refer to him as "Pikachu."1 CS testified that he recognized the 

nickname as belonging to someone who had supplied cocaine to his 

former business partners, Fabio and Girado Quijano. After CS 

introduced himself to Munera, the two interacted on several 

occasions at the billiards bar -- none of these conversations were 

recorded. During one of these interactions, CS broached the 

subject of doing a drug transaction with Munera, and the two agreed 

to meet away from the bar to discuss the details. 

The first recorded meeting occurred on October 23, 2019, 

where CS, at the DEA's direction, arranged to meet Munera at a 

restaurant to discuss the drug transaction. During the meeting, 

Munera told his friend (who had accompanied him) that he had talked 

to CS before but "didn't even know who he was." During the 

conversation, Munera acknowledged seeing the unusual round discs 

of cocaine (as opposed to typical bricks) that CS had distributed 

in East Boston at the beginning of 2019. Munera also told CS that, 

at that time, he was getting twenty to thirty kilograms of cocaine 

from a Mexican supplier. CS informed Munera that, if they closed 

a deal, Munera would have to cover the transportation cost for the 

cocaine up front, and Munera agreed, responding, "That's the way 

it is. Yes." 

1 During his testimony, Munera acknowledged going by the 

nickname "Pikachu." 
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The next meeting between Munera and CS, which was also 

recorded, occurred on November 7, 2019, in a cafe. CS told Munera 

that he could get a few hundred kilograms of cocaine but that he 

did not want to "spread [him]self around" -- which he explained 

meant selling kilograms to multiple people, which is 

riskier -- and inquired what Munera thought of the risk. Munera 

responded, "I don't have a problem." Munera explained that his 

interest in the deal depended on the price because he was currently 

buying cocaine at "twenty-nine and a half" -- meaning $29,500 per 

kilogram. CS and Munera discussed pricing the cocaine at 

twenty-eight, meaning $28,000 per kilogram, and Munera told CS to 

give him eight days' notice before the cocaine arrived so that he 

could have $150,000 to $250,000 ready for him. When CS explained 

that his supplier preferred to sell 100 kilograms of cocaine at a 

time, Munera said, "I understand. It's better for them. They 

can't be all over the place with twenty, ten . . . ." Finally, 

they discussed the profits earned from selling a kilogram of 

cocaine, with Munera stating, "many times you're making six 

thousand, four thousand but with a lot of back and forth." 

CS and Munera next met on January 21, 2020. During this 

recorded meeting, CS told Munera that the cocaine was set to arrive 

in February. When CS asked how much Munera wanted, Munera again 

reiterated that it depended on the price and stated that he was 

currently getting it at "two eight," meaning $28,000 a kilogram,
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and that he got around twenty kilograms of cocaine monthly. CS 

believed that Munera, in an attempt to get a better deal for 

himself, was giving him a fake price to try and get CS to sell to 

him even lower. Munera told CS that the cocaine also had to be 

good quality. After some back and forth, CS agreed to a price of 

$27,000 a kilogram. He informed Munera that if he could front 

$200,000 to cover the transportation cost of the cocaine, there 

would be no rush to pay back the rest of the money. 

On February 12, 2020, CS and Munera met again in 

anticipation of the drug transaction set to occur the following 

day. They discussed logistics, including how much money Munera 

was going to pay up front and where the transaction would occur. 

Munera mentioned that he had been shorted on cocaine in the past. 

During the meeting, undercover DEA agents, posing as CS's cocaine 

suppliers, showed Munera fake kilogram packages of cocaine, as 

well as a photo of an open kilogram package.2 

CS and Munera met the following day, February 13, 2020, 

at Munera's apartment building to complete the transaction. Munera 

did not want to conduct the deal on the street, so CS, wearing a 

recording device, went up to his apartment to check that Munera 

had the promised $200,000 in cash. CS observed the cash, which 

2 CS testified that he made realistic-looking fake kilogram 

packages for the DEA to show Munera by wrapping wood in plastic 

wrap. 
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was packaged in bundles of $10,000 and $50,000, and testified at 

trial that drug money is usually packaged like that. Munera told 

CS to take a photo of the cash as proof for the drug suppliers. 

CS then left the apartment, without the money, and returned to the 

undercover agents. Eventually, CS reentered the apartment 

building with the undercover agents to conduct the transaction. 

The agents carried in the bag containing the fake cocaine, and 

Munera reassured them that "[t]he money [is] all good. It's 

there." After the agents handed Munera the bag, he left the lobby 

to bring it back to his apartment and to retrieve the $200,000. 

Munera was arrested in the stairwell, still carrying the bag of 

sham cocaine, and $200,000 was later recovered from his apartment. 

B. Procedural History

Following his arrest, a grand jury indicted Munera on 

one count of attempting to possess with intent to distribute five 

kilograms or more of cocaine. During pretrial proceedings, the 

government, at Munera's request, interviewed CS to learn more about 

why he decided to approach Munera at the billiards bar. CS 

explained that when he worked with Fabio Quijano ("Quijano") in 

2016 and 2017, Quijano purchased kilograms of cocaine from a man 

called "Pikachu," whom he had grown up with in Colombia. CS stated 

that he never met Pikachu in person. After CS heard someone refer 

to Munera as Pikachu in the bar, CS approached him. 
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Subsequently, the government interviewed Quijano, who 

was then under indictment for drug trafficking and money laundering 

offenses committed between 2018 and 2020. During his proffer, 

Quijano acknowledged that he knew Munera but did not conduct drug 

activity with him. Anticipating that Quijano would assert a Fifth 

Amendment privilege if called to testify, Munera requested use 

immunity for Quijano. After the government refused to provide 

said immunity, Munera requested that the district court order the 

government to do so. The district court denied Munera's request 

at the final pretrial conference, explaining that "there [wa]s no 

evidence that the prosecution withheld immunity in an attempt to 

distort the factfinding process." 

At trial, Munera admitted to the underlying offense 

conduct but advanced an entrapment defense. Munera called his 

girlfriend, Estefania Holguin Builes ("Holguin"), to testify about 

the pressure CS placed on Munera leading up to the transaction in 

February 2020. During her testimony, the government objected to 

various responses based on her lack of personal knowledge or on 

hearsay grounds. Most of the government's objections to Holguin's 

testimony were sustained. After a four-day trial, the jury 

convicted Munera on the sole count. 

At sentencing, Munera argued that he met the eligibility 

criteria for safety valve relief based on his trial testimony. 

The district court disagreed, finding that the safety valve 
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adjustment did not apply because Munera failed to prove by a 

preponderance of the evidence that his testimony at trial was 

truthful and because "he certainly did not give all of the 

background information with respect to his participation in this 

offense during the trial." Munera received a sentence of 120 

months' imprisonment. This appeal followed. 

II. Discussion

A. Use Immunity

We begin with Munera's claim of error related to use 

immunity. Munera contends that the district court's refusal to 

order the government to grant Quijano use immunity resulted in a 

denial of due process and an unfair trial. Specifically, Munera 

argues that, had Quijano testified, his testimony would have 

directly contradicted CS as to Munera's predisposition to engage 

in drug trafficking -- thereby corroborating Munera's own 

testimony in support of his entrapment defense -- and would have 

called the credibility of CS, the main government witness, into 

question. 

On appeal, we review the denial of immunity de novo and 

the factual findings underpinning the district court's decision 

for clear error. See United States v. Catano, 65 F.3d 219, 224, 

226 (1st Cir. 1995); see also United States v. Straub, 538 F.3d 

1147, 1156 (9th Cir. 2008) (explaining that "[t]he question of 
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whether a district court erred by refusing to compel use immunity 

is a mixed question of law and fact"). 

We have previously explained that "[t]he power and 

discretion to immunize witnesses lies primarily with the 

prosecution." United States v. Berroa, 856 F.3d 141, 159 (1st 

Cir. 2017); see United States v. Angiulo, 897 F.2d 1169, 1191 (1st 

Cir. 1990) (recognizing "that the power to grant witness immunity" 

is vested in the executive branch). A district court may 

circumvent the government's discretionary call only in the rare 

circumstance that "a prosecutor abuses [his or] her discretion by 

intentionally attempting to distort the fact-finding process," 

thus violating a defendant's due process rights. Angiulo, 897 

F.2d at 1191-92; see Berroa, 856 F.3d at 159. Such distortion can 

occur "if the prosecutor purposefully withholds use immunity to 

hide exculpatory evidence from the jury." Berroa, 856 F.3d at 159 

(quoting United States v. Castro, 129 F.3d 226, 232 (1st Cir. 

1997)). 

At the outset, we note that our case law makes clear 

that where the government offers a plausible reason for denying 

use immunity to a defense witness, such an assertion "adequately 

deflects any insinuation that the government's handling of [the] 

witness was motivated by the sole purpose of keeping exculpatory 

evidence from the jury." See Castro, 129 F.3d at 233 (crediting 

"government's desire not to hinder 'state or federal charges of 
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possession of controlled drugs and trafficking [that] could still 

be brought [against the witness]'" (first alteration in 

original)). Here, the government's stated reason for refusing to 

give Quijano use immunity -- avoiding potential obstacles to 

Quijano's prosecution on pending federal charges -- is exactly the 

type of rationale that we have continuously recognized as fending 

off a claim of prosecutorial misconduct. See Curtis v. Duval, 124 

F.3d 1, 10 (1st Cir. 1997) ("[W]e cannot peer behind the 

prosecution's plausible assertion of a legitimate interest in 

keeping the way clear for a possible future prosecution [of a 

witness]."); Angiulo, 897 F.2d at 1193 (explaining that the 

government's "desire not to hinder possible state and federal 

prosecutions . . . show[s] that the government's conduct was 

motivated by something other than the sole desire to keep [the 

witness]'s exculpatory testimony from the jury"); United States v. 

Mackey, 117 F.3d 24, 28-29 (1st Cir. 1997) (recognizing the 

government's interest in avoiding risk to possible future 

prosecution of a witness as a legitimate justification for denying 

use immunity). Notably, Munera does not contend that the 

government acted in bad faith in denying Quijano use immunity. 

Thus, given Munera's concession, the government's good faith 

justification for denying use immunity to Quijano would normally 

end our inquiry. 
- 11 -

Nevertheless, relying primarily on Ninth Circuit 

jurisprudence,3 Munera asks us to balance his interest in Quijano's 

immunized testimony against the government's interest in 

withholding immunity to decide whether a due process violation 

occurred. In effect, this argument invokes the so-called 

"effective defense" theory, which "posits that a strong need for 

exculpatory testimony can override even legitimate, good faith 

objections by the prosecutor to a grant of immunity." Mackey, 117 

F.3d at 28. We have repeatedly rejected this theory; Castro, for 

example, explained that the theory "is not good law in this circuit 

and [a defendant] cannot profit by it." 129 F.3d at 232 (stating 

that the effective defense theory has been "interred"); accord

Curtis, 124 F.3d at 9; Mackey, 117 F.3d at 28. To the extent the 

Ninth Circuit's doctrine embraces the effective defense theory, we 

reject it. 

3 Citing United States v. Westerdahl, 945 F.2d 1083 (9th Cir. 

1991), Munera argues that the factfinding process may be distorted 

when the government relies on immunized testimony for its case but 

then refuses to grant use immunity to defense witnesses. However, 

Munera fails to reconcile the Ninth Circuit's more lenient 

prosecutorial misconduct standard with this circuit's existing 

precedent. Compare id. at 1086 (requiring a defendant to "show 

that the evidence sought from the nonimmunized witness was relevant

and that the government distorted the judicial fact-finding 

process by denying immunity to the potential witness" (emphases 

added)), with Angiulo, 897 F.2d at 1193 (requiring a defendant to 

show that the government "intentionally distort[ed] the factfinding process by deliberately withholding immunity from certain 

prospective defense witnesses for the purpose of keeping 

exculpatory evidence from the jury" (emphases added)).
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Without in any way undercutting our rejection of the 

effective defense theory, we acknowledge that Mackey may have left 

open the possibility of an exceedingly narrow "exception" to that 

rejection in circumstances involving "very extreme facts." 117 

F.3d at 28. But see Castro, 129 F.3d at 232 (categorically 

rejecting the effective defense theory without any reference to a 

possible exception). That case described a hypothetical situation 

in which "the prosecutor has only a trivial interest in withholding 

immunity and -- to avoid a complete miscarriage of justice -- the 

defendant has an overwhelming need for specific exculpatory 

evidence that can be secured in no way other than through the grant 

of immunity." Mackey, 117 F.3d at 28. Munera's arguments do not 

bring this case anywhere close to Mackey's hypothetical. 

First, the government's interest in withholding use 

immunity for Quijano was far from "trivial." Id. On the contrary, 

we have routinely recognized as nontrivial the government's 

"legitimate interest in keeping the way clear for a possible future 

prosecution." Curtis, 124 F.3d at 10 (emphasis added); see Mackey, 

117 F.3d at 28 (same); Castro, 129 F.3d at 233 (same); Angiulo, 

897 F.2d at 1191 (same). Here, Quijano was already under 

indictment for serious offenses, and the government had a 

legitimate interest in avoiding potential obstacles to his 

prosecution. Munera argues that the government's interest in 

safeguarding its then-ongoing prosecution of Quijano should have 
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given way because Quijano was not under indictment for the 

activities in question, which occurred in 2016 and 2017; the 

prosecution of said activities would soon be barred by the statute 

of limitations; the government has not made any effort to prosecute 

Quijano for these alleged activities; and use immunity would not 

necessarily bar prosecution based on evidence obtained independent 

of his testimony. But none of the first three points make it 

implausible that a future prosecution of Quijano, which would be 

hampered by immunization, was "possible" at the time of the 

immunity decision, see Curtis, 124 F.3d at 10, and the final point 

would be true in any case involving use immunity. The government's 

strong interest in withholding immunity alone brings this case 

outside the Mackey hypothetical, which in turn ends the matter. 

Even going beyond that, Munera has not shown "an 

overwhelming need for specific exculpatory evidence that can be 

secured in no way other than through the grant of immunity" and 

that is necessary "to avoid a complete miscarriage of justice." 

Mackey, 117 F.3d at 28. Munera contends that he needed Quijano's 

testimony to contradict and discredit CS, since the government 

purportedly relied exclusively on CS's testimony to establish 

Munera's predisposition to engage in drug trafficking based on his 

prior work with Quijano. Munera's argument falls short for several 

reasons. His claim of "overwhelming need" is undercut by the fact 

that he testified to the same exculpatory evidence that he was 
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hoping to obtain through immunized testimony -- that he never sold 

drugs to Quijano -- thus establishing that the evidence was 

available other than through a grant of immunity. Nor did the 

government rely exclusively on CS for predisposition evidence. In 

fact, the government introduced transcripts of recordings where 

Munera is caught discussing, among other things, his Mexican drug 

supplier, how much a kilogram of cocaine costs him, his profits 

from drug sales, and other intricacies of the drug trade. Although 

Munera contends that CS coached him about the drug trade during 

their unrecorded meetings, he fails to adequately explain why he 

would then pretend to be an experienced drug dealer when 

interacting with CS given that CS allegedly knew that he was not.4 

These recordings evidenced Munera's predisposition to engage in 

drug trafficking and bolstered CS's credibility with respect to 

his testimony about his dealings with Munera. Given this evidence, 

Munera cannot show an "overwhelming need" for Quijano's immunized 

testimony to avoid "a complete miscarriage of justice." Id. 

B. Limiting Holguin's Testimony

Munera next contends that the district court erred when 

it precluded Holguin from testifying about the pressure CS placed 

4 When pressed at oral argument, Munera's counsel explained 

that Munera held himself out as an experienced drug dealer as a 

negotiation tactic to maximize his profits. We cannot square this 

desire to maximize profits with his claim that Munera lacked a 

predisposition to engage in drug trafficking.
- 15 -

on Munera, thus undermining his entrapment defense. He claims 

that Holguin was wrongfully prevented from testifying about what 

he told her CS said about his living conditions; the effect of 

CS's struggles on him; and his emotional state when discussing 

CS's struggles -- despite his proffer that the evidence was 

offered for his state of mind rather than the truth. 

We review the district court's evidentiary rulings for 

abuse of discretion. See United States v. Concepcion-Guliam, 62 

F.4th 26, 32 (1st Cir. 2023). "[W]hen judicial action is taken in 

a discretionary matter, such action cannot be set aside by a 

reviewing court unless it has a definite and firm conviction that 

the court below committed a clear error of judgment in the 

conclusion it reached upon a weighing of the relevant factors." 

United States v. Kilmartin, 944 F.3d 315, 335 (1st Cir. 2019) 

(quoting Schubert v. Nissan Motor Corp. in U.S., 148 F.3d 25, 30 

(1st Cir. 1998)). Further, "[w]e will not reverse if it is highly 

probable that the error did not contribute to the verdict." United 

States v. Ocasio-Ruiz, 779 F.3d 43, 47 (1st Cir. 2015). 

We first dispatch Munera's claim that Holguin was 

prevented from testifying about his emotional state and demeanor. 

Contrary to his assertion, Holguin was correctly permitted to 

testify about her observations of Munera's demeanor. See

Concepcion-Guliam, 62 F.4th at 32 (permitting detective's 

testimony about his observations). The district court even said, 
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"She can testify as to his demeanor." For example, the district 

court allowed the following from Holguin:

• "[Munera's] attitude, the way he felt, was, 

oh, it hurts me a lot to see [CS] when he 

tells me that, when I hear this." 

• "I noticed [Munera] to be very stressed. I 

noticed that he was having a lot of angst. 

Even like at times he didn't have -- he 

wasn't really willing to talk to me." 

• "[Munera] continued feeling with a lot of 

angst." 

• "[Munera] has always been a very calm type 

of person." 

While testimony about personal observations is 

permissible under our rules of evidence, the district court 

correctly drew a line by prohibiting Holguin from testifying about 

Munera's internal emotional state, which she had no personal 

knowledge of. See Fed. R. Evid. 602 ("A witness may testify to a 

matter only if evidence is introduced sufficient to support a 

finding that the witness has personal knowledge of the matter."); 

Concepcion-Guliam, 62 F.4th at 32 (permitting testimony about 

witness's observations where there was no mention of the 

defendant's state of mind). For example, she was prevented from 

testifying about how Munera was impacted by hearing CS's struggles 

and what emotional state he was in when he relayed that information 

to her. The district court also correctly prevented Holguin from 

testifying about what Munera told her he was feeling since such 
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testimony was clearly offered for the truth -- proving that CS's 

alleged pleas to do a drug deal impacted Munera -- and thus 

constituted inadmissible hearsay.5 See Fed. R. Evid. 801; United 

States v. Tuesta-Toro, 29 F.3d 771, 776 (1st Cir. 1994) (explaining 

that admission of an out-of-court statement offered for proving 

the truth of the matter asserted constitutes error). 

Munera next contends that Holguin was impermissibly 

constrained from testifying about CS's reported living conditions 

and his business proposition for Munera, but his contentions lack 

support. Here, too, the district court carefully policed the rules 

of evidence. As explained supra, the district court did not abuse 

its discretion by precluding Holguin from testifying to facts where 

there was no foundation laid for her personal knowledge of said 

facts, such as what CS was experiencing, how CS was describing his 

financial hardship, what CS's living conditions were, and what 

business CS was proposing to Munera. However, Holguin was 

permitted to testify to what Munera told her that CS told him about 

his financial and economic problems and about the business 

opportunity. For example, she was permitted to say that Munera 

recounted to her that CS told him that he "was in a lot of trouble," 

that "he was having financial hardship," "that his family was going 

5 Munera's sole argument on appeal is that Holguin's testimony 

was admissible as nonhearsay. Thus, we take no position on whether 

said testimony was admissible under an exception to the rule 

against hearsay, since any such argument is waived. 
- 18 -

through financial hardship as well," "that he would bring this up 

very often," that "[h]e needed to solve these financial problems 

at once," that "not only was he going hungry but his family was 

going hungry as well," that "he was not living in a very good 

living conditions [sic]," that "he was living worse than a rat," 

and "that it was business that was related to drugs." This 

testimony was properly admitted for its effect on the listener's 

state of mind -- here, Munera. See United States v. Feliz, 794 

F.3d 123, 132-33 (1st Cir. 2015) (explaining that 

"testimony . . . offered to show the effect of the words spoken on 

the listener . . . is a nonhearsay utterance because it is not 

being used to prove the truth of the matter asserted"). Despite 

Munera's claims to the contrary, the record makes clear that 

Holguin was permitted to testify about the topics now complained 

of, within the constraints imposed by the rules of evidence. Thus, 

we discern no abuse of discretion in the district court's 

evidentiary rulings. 

C. Sentencing

On appeal, Munera advances two sentencing challenges. 

We begin with his first argument: that the district court erred in 

denying him safety valve relief. 

1. Safety Valve

Before proceeding to the merits of Munera's claim, we 

pause to provide some context. In 1994, Congress enacted the 
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safety valve to provide relief to certain first-time drug 

trafficking offenders facing mandatory minimum sentences. See 18 

U.S.C. § 3553(f); United States v. Ortiz-Santiago, 211 F.3d 146, 

150 (1st Cir. 2000). When applicable, the safety valve reduces a 

defendant's offense level by two points and permits the sentencing 

judge to disregard the mandatory minimum sentence provided in 

certain drug trafficking statutes. See Ortiz-Santiago, 211 F.3d 

at 150. Although there are five requirements that a defendant 

must meet to obtain safety valve relief, only the fifth and final 

criterion of the statute, as amended in 2018, is at issue here. 

It requires that "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."6 § 3553(f)(5); U.S.S.G. 

6 The first four safety valve requirements are:

(1) the defendant does not have more than 1 

criminal history point, as determined under 

the [S]entencing [G]uidelines;

(2) the defendant did not use violence or 

credible threats of violence or possess a 

firearm or other dangerous weapon (or induce 

another participant to do so) in connection 

with the offense;

(3) the offense did not result in death or 

serious bodily injury to any person;
- 20 -

§ 5C1.2(a)(5). Munera, as the defendant, "bears the burden of 

proving, by a preponderance of the evidence, that he has satisfied 

this requirement." Padilla-Colón, 578 F.3d at 30. 

Turning to the case at hand, Munera contends that the 

district court failed to make an "independent determination" as to 

his eligibility for relief. As evidence, he points to the fact 

that the district court referenced a probation recommendation that 

did not exist, as well as the court's failure to make specific 

factual findings supporting its decision. He also claims that the 

district court erred by crediting the government's arguments 

opposing relief because said arguments were "insufficient." 

We review a district court's safety valve determination 

de novo when the determination rests on conclusions of law and for 

clear error when it rests on findings of fact. See id. at 29. 

Clear error review is "exceedingly deferential"; thus we will not 

"disturb either findings of fact or conclusions drawn therefrom 

unless the whole of the record compels a strong, unyielding belief 

(4) the defendant was not an organizer, 

leader, manager, or supervisor of others in 

the offense, as determined under the 

[S]entencing [G]uidelines and was not engaged 

in a continuing criminal enterprise, as 

defined in section 408 of the Controlled 

Substances Act.

United States v. Padilla-Colón, 578 F.3d 23, 30 n.4 (1st Cir. 

2009); see § 3553(f)(1)-(4); § 5C1.2(a)(1)-(4).
- 21 -

that a mistake has been made." United States v. Matos, 328 F.3d 

34, 39-40 (1st Cir. 2003). Because "evaluating witness testimony 

typically involves fact-sensitive judgments and credibility 

calls," such decisions "fit comfortably within the margins of the 

clear error standard." Id. at 40. 

As to the district court's decision-making process, it 

is clearly established in our case law that a sentencing judge 

must independently determine whether a defendant is eligible for 

safety valve relief. See United States v. White, 119 F.3d 70, 73 

(1st Cir. 1997); United States v. Miranda–Santiago, 96 F.3d 517, 

529 (1st Cir. 1996). Additionally, such a finding should "rest[] 

on more than 'bare conclusions.'" United States v. Bravo 489 F.3d 

1, 12 (1st Cir. 2007) (quoting Miranda–Santiago, 96 F.3d at 529). 

Nevertheless, "bare conclusion[s]" may suffice if there is "easily 

recognizable support in the record" for the finding. Miranda–

Santiago, 96 F.3d at 529. 

Munera first argues that we cannot find that the district 

court made an independent determination where the court adopted a 

recommendation from the probation office that was nonexistent. 

While discussing the safety valve, the district court said, "The 

Court is satisfied that the recommendation of the Probation Office 

is appropriate." As Munera points out, the probation office did 

not take a stance on his eligibility for relief, thus this 

statement was made in error. Munera's contention might have had 
- 22 -

teeth if the district court stopped there, but the court continued 

on and stated the following: 

The safety valve adjustment does not apply 

here. The Court agrees with the government's 

argument that, based upon a preponderance of 

the evidence standard . . . the defendant's 

testimony was not truthful and that he does 

not satisfy the fifth criterion of the socalled safety valve application. He did not 

give completely truthful evidence and he 

certainly did not give all of the background 

information with respect to his participation 

in this offense during the trial. 

The record establishes that the district court did not merely defer 

to the probation office on the safety valve issue. Rather, it 

made an eligibility determination after overseeing a four-day jury 

trial, where the defendant testified, and after receiving 

sentencing memoranda and hearing oral argument from both sides on 

the safety valve issue. See Matos, 328 F.3d at 40 (affirming the 

district court's eligibility decision after noting that the 

district court "carefully examined" witness testimony and listened 

to the parties' credibility arguments); cf. Bravo 489 F.3d at 12 

(remanding the district court's safety valve determination where 

the defendant's eligibility arguments were summarily denied). 

While the district court did not make specific factual findings, 

their absence alone does not constitute error -- contrary to 

Munera's claim -- given that the court explicitly credited the 

government's argument opposing relief, and thus "easily 
- 23 -

recognizable support in the record" exists for the district court's 

decision. See Miranda–Santiago, 96 F.3d at 529.

Munera next argues that the district court erred when it 

credited the government's argument opposing relief because the 

government failed to "'come forward with some sound reason to 

suggest' that [Munera]'s proffer [wa]s untruthful or incomplete." 

See United States v. Martinez, 9 F.4th 24, 37 (1st Cir. 2021) 

(quoting Miranda–Santiago, 96 F.3d at 529 n.25). The record 

clearly establishes, however, that, in its memorandum and argument 

at sentencing, the government pointed out various ways -- citing 

specific examples -- that Munera's testimony was contradicted, 

implausible, or otherwise incomplete.7 We have previously held 

that such a showing by the government, if credited, is more than 

sufficient to justify denial of safety valve relief. See United 

States v. Marquez, 280 F.3d 19, 24-25 (1st Cir. 2002). 

7 For example, the government highlighted the inconsistency

between Munera's trial testimony -- where he claimed that, prior 

to the transaction with CS, he had never engaged in drug 

trafficking -- with his statements to CS during their recorded 

conversations -- where he claimed, among other things, that he had 

a Mexican cocaine supplier and discussed the drug trade like an 

experienced trafficker. The government also emphasized the 

implausibility of Munera's claim that he was going to temporarily 

hold the drugs for CS by pointing to the fact that Munera 

negotiated for a more favorable sale price and was concerned about

the quality of the drugs, both of which are inconsistent with him 

merely providing storage. Additionally, the government cited 

specific evidence that Munera did not provide during his testimony, 

including details about his Mexican source of supply, customers, 

and prior involvement with East Boston cocaine traffickers. 
- 24 -

Despite Munera's stated challenge, the essence of his 

argument appears to be that we should disregard the government's 

reasonable interpretation of the facts, which the district court 

credited, in favor of his own. We refuse to do so. "The default 

rule is that when more than one sensible interpretation of a 

particular set of circumstances can supportably be drawn, a 

sentencing court's decision to credit one alternative and reject 

another cannot be deemed clearly erroneous." Matos, 328 F.3d at 

40-41; see also United States v. Rodríguez-Ortiz, 455 F.3d 18, 25 

(1st Cir. 2006) (concluding that the district court did not err 

when it credited a government witness's testimony over the 

defendant's in denying safety valve relief); Marquez, 280 F.3d at 

24-25 (explaining that the district court did not err in finding 

the defendant ineligible for safety valve relief where his answers 

were "incredible" and strained credulity). Our review of the 

record reveals no error here. The government's evidence, and the 

record as a whole, provides ample support for the district court's 

finding that Munera failed to meet the safety valve's complete and 

truthful disclosure requirement. 

2. District Court's Sentencing Comments

Munera advances one final argument, raised for the first 

time on appeal. He contends that, because the district court did 

not advance a factual basis for denying safety valve relief, it is 

possible that improper bias may have tainted the court's decision. 
- 25 -

As evidence, Munera points to the following remarks from the 

district court during the sentencing hearing:

And to add insult to injury, you came into 

this country illegally and remained an illegal 

alien while you committed this and no doubt 

other crimes. For all of that, you deserve a 

long prison sentence, not only to deter you 

from ever committing a similar crime, but also 

to deter anyone else who thinks that he can 

abuse our immigration laws and spread poison 

in our midst without serious consequences. It 

won't happen on my watch. 

To the extent that Munera argues that his sentencing 

hearing may have been tainted by what he asserts was bias based on 

the judge's reference to his immigration status, we note that he 

failed to object below and thus we review for plain error on 

appeal. See United States v. Rondón-García, 886 F.3d 14, 20 (1st 

Cir. 2018) (explaining that a defendant's unpreserved claim that 

the sentencing court relied on an impermissible factor at 

sentencing is reviewed for plain error). To prevail, a defendant 

must establish: "(1) that an error occurred (2) which was clear or 

obvious and which not only (3) affected the defendant's 

substantial rights, but also (4) seriously impaired the fairness, 

integrity, or public reputation of judicial proceedings." United 

States v. Gilman, 478 F.3d 440, 445 (1st Cir. 2007). "In the 

sentencing context that translates to a requirement that a 

defendant must paint a picture that illuminates 'a reasonable 

probability that, but for the error, the district court would have 
- 26 -

imposed a different, more favorable sentence.'" Id. at 447 

(quoting United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st 

Cir. 2006)). Here, Munera makes "no attempt to bear his burden 

under plain-error review," and thus any such argument is waived. 

United States v. Franklin, 51 F.4th 391, 400 (1st Cir. 2022). 

III. Conclusion

For the foregoing reasons, we affirm.