FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 14, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-10731

Non-Argument Calendar

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D. C. Docket No. 05-20520-CR-UUB

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

HECTOR PEREZ-CORDOVA, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

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(December 14, 2007)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:
“When reviewing a district court’s safety-valve decision, we review for clear error a 1

district court’s factual determinations and de novo the court’s legal interpretation of the statutes

and sentencing guidelines.” United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir. 2006)

(alterations and quotation marks omitted).

2

After pleading guilty, Hector Perez-Cordova appeals his concurrent 120-

month sentences for conspiracy to possess with the intent to distribute a mixture

and substance containing a detectable amount of cocaine, and attempted possession

with the intent to distribute a mixture and substance containing a detectable amount

of cocaine, both in violation of 21 U.S.C. §§ 841(a)(1), 846. After review, we

affirm Perez-Cordova’s convictions and sentences.

On appeal, Perez-Cordova argues that the district court erred in denying him

safety-valve relief based on Perez-Cordova’s failure to provide complete and

truthful information about his offenses to the government. 

1

The safety-valve provision requires a district court to calculate the advisory

guidelines range of certain drug offense defendants without regard to any

mandatory-minimum sentence if the district court finds that the defendant meets

the five criteria set forth in U.S.S.G. § 5C1.2. 18 U.S.C. § 3553(f); United States

v. Quirante, 486 F.3d 1273, 1275 (11th Cir. 2007). In addition, a defendant who

meets the safety-valve criteria is entitled to a two-level reduction in his offense

level. U.S.S.G. § 2D1.1(b)(11).

Of the five criteria, the only one at issue in this appeal requires the defendant
We reject Perez-Cordova’s contention that the district court’s safety-valve ruling is 2

insufficient to permit meaningful appellate review. The district court made an explicit finding

that Perez-Cordova did not qualify for safety-valve relief because he did not truthfully provide

all of the information and evidence that he had concerning the offenses and that Perez-Cordova

was not being completely candid about his role in the offenses. 

Furthermore, we reject Perez-Cordova’s argument that the district court merely deferred

to the government’s assessment of the truthfulness of Perez-Cordova’s statement. The record

demonstrates that, after reviewing the transcripts of the taped conversations with the

government’s informant and hearing testimony from both Perez-Cordova and his co-conspirator,

Ramon Otero-Montijo, the district court made independent safety-valve findings, specifically

noting that its safety-valve determination was “based on what [it] heard” from Perez-Cordova at

the second sentencing hearing.

3

“not later than the time of the sentencing hearing” to provide truthful and complete

information concerning the offense or offenses that were part of the same course of

conduct or a common scheme or plan. U.S.S.G. § 5C1.2(a)(5); 18 U.S.C. §

3553(f)(5). “The question of whether the information [that the defendant] supplied

to the government . . . was truthful and complete . . . is a factual finding for the

district court.” United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000). 

“[L]ies and omissions do not, as a matter of law, disqualify a defendant from

safety-valve relief so long as the defendant makes a complete and truthful proffer

not later than the commencement of the sentencing hearing.” Id. The defendant

bears the burden of proving the truthfulness of his proffer. United States v.

Milkintas, 470 F.3d 1339, 1345 (11th Cir. 2006); United States v. Espinosa, 172

F.3d 795, 797 (11th Cir. 1999).

We find no clear error in the district court’s safety-valve ruling. Perez2
4

Cordova did not satisfy his burden of proving that his safety-valve statement

truthfully provided the government with all of the information he had concerning

his offense conduct. The government disputed whether Perez’s oral statement,

which was given to the government outside the presence of the district court and

was never reduced to writing, was truthful. In response, Perez-Cordova proffered

his testimony at the sentencing hearing. This testimony, which related to his role

in the drug conspiracy, was inconsistent with other evidence in the record. 

First, Perez-Cordova’s sentencing testimony was inconsistent with the facts

to which he stipulated at his change of plea hearing. Specifically, Perez-Cordova

admitted at his change of plea hearing that he asked one of the co-conspirators,

Ramon Otero-Montijo, to drive from Orlando to Fort Lauderdale and instructed

Otero-Montijo to be the driver for a third co-conspirator, Amador Suarez, who was

completing a drug transaction. At sentencing, however, Perez-Cordova testified

that it was Suarez, rather than himself, who asked Otero-Montijo to come to Fort

Lauderdale from Orlando to be Suarez’s driver and told Otero-Montijo about the

upcoming drug transaction. Perez-Cordova did not attempt to reconcile these

inconsistencies or explain which version of events was the truth.

Second, Perez-Cordova’s testimony at sentencing was inconsistent with the

testimony of Otero-Montijo as to whether Perez-Cordova recruited him to join the
5

drug conspiracy during a barbeque in Texas. Perez-Cordova did not demonstrate

that his testimony, as opposed to Otero-Montijo’s testimony, was the truth. 

Finally, Perez-Cordova’s testimony that he had nothing further to do with the drug

deal or with the government’s confidential informant after his wife was

hospitalized in Texas was inconsistent with the taped telephone conversations

submitted by the government at the sentencing hearing. For all of these reasons,

the district court did not clearly err in discrediting Perez-Cordova’s testimony

when it concluded that Perez-Cordova was not “being completely candid” about

his role in the offenses.

While earlier lies and omissions do not, as a matter of law, disqualify a

defendant from safety-valve relief, here, Perez-Cordova failed to provide any

explanation for his inconsistencies at sentencing. These inconsistencies and the

fact that Perez-Cordova’s sentencing testimony attempted to portray him as playing

a more limited role in the drug conspiracy provided a sufficient basis for the

district court to conclude that Perez-Cordova did not provide complete and truthful

information and to deny Perez-Cordova safety-valve relief.

AFFIRMED.