United States Court of Appeals For the First Circuit ________________________

No. 06-2176

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN C. RODRIGUEZ-FERREIRA,

Defendant-Appellant. _____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge] _____________________

Before

Lipez, Circuit Judge, Selya, Senior Circuit Judge, and Howard, Circuit Judge.

Matthew M. Robinson and Robinson & Brandt, P.S.C. on brief, for appellant. Nelson Perez-Sosa, Assistant United States Attorney, and Rosa Emilia Rodriguez-Velez, United States Attorney, on brief for appellee.

June 30, 2008 Howard, Circuit Judge. Pursuant to a written plea

agreement, Juan C. Rodriguez-Ferreira (Rodriguez) pleaded guilty

to a two count indictment for conspiring to distribute in excess

of five kilograms of cocaine, in violation of

(a)(1), 841(b)(1)(A), and 846, and to possession with intent

to distribute approximately thirty kilograms of cocaine, in

violation of

(a)(1), 841(b)(1)(A). The agreement

stipulated various sentencing base level reductions so long as

Rodriguez met all the safety valve requirements under the

sentencing guidelines. See U.S.S.G. § 5C1.2(a). At the change

of plea hearing Rodriguez was informed, and he acknowledged, that

he could not be sentenced below the mandatory minimum sentence of

120 months unless he satisfied the five requirements of §

5C1.2(a).

It is uncontested that Rodriguez satisfied four of the

five safety valve requirements. The government contends, and the

district court agreed, that Rodriguez did not fulfill the fifth

requirement under 5C1.2(a), and thus Rodriguez did not fulfill

his obligations under the plea agreement. The court imposed a

120 months’ sentence on July 15, 2003. Rodriguez appeals,

raising "the lone question of whether the district court

incorrectly determined that Rodriguez [] did not satisfy each of

-2- the factors under

(f) and U.S.S.G. § 5C1.2, the

'safety valve.'"

I. SAFETY VALVE

U.S.S.G. § 5C1.2(a) provides in part:

[T]he court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in

(f)(1)-(5) set forth verbatim below:

(1)... (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or 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.

Emphasis added.

We focus on the requirement that Rodriguez was

truthfully to provide all of the information and evidence he had

concerning the offense or offenses not later than the time of the

sentencing hearing.

II. STANDARD OF REVIEW

We review the sentencing court's factual findings

supporting the adverse determination of safety valve eligibility

for clear error. United States v. Marquez,

(lst

Cir. 2002). Our review is thus deferential.

. "[A]n

appellate court ought not to disturb either findings of fact or -3- conclusions drawn there from unless the whole of the record

compels a strong, unyielding belief that a mistake has been

made." United States v. Matos,

(1st Cir. 2003).

The district court’s determination of an issue of statutory

interpretation is reviewed de novo. Marquez,

.

III. BURDEN OF PROOF

Rodriguez bears the burden of showing that he made

appropriate and timely disclosures to the government.

;

United States v. Richardson,

(1st Cir. 2000).

This burden obliges Rodriguez to prove that the information he

supplied in the relevant time frame was both truthful and

complete. Marquez,

. "[A] safety valve debriefing

is a situation that cries out for straight talk; equivocations,

half-truths, and veiled allusions will not do." Matos,

. "Nothing short of truthful and complete disclosure will

suffice [] and, therefore, [] truthful and complete disclosure is

a condition precedent to relief under the safety valve."

"Full disclosure is the price that Congress has attached to

relief under the [safety valve] statute." United States v.

Montanez,

(lst Cir. 1996).

IV. HEARINGS

The government debriefed Rodriguez. Finding his

disclosures lacking, the government filed a notice with the court

-4- that Rodriguez had not complied with § 5C1.2(a). Rodriguez asked

the government to detail the specific areas in which he was not

truthful or complete. The court held a hearing on Rodriguez’s

compliance on October 11, 2002. To assist it in deciding whether

or not Rodriguez was compliant, the court requested memoranda on

the arguments and case law. Subsequently, the court entered an

order denying Rodriguez's request for a second debriefing. But,

in light of the deadline established by § 5C1.2(a), the court

also allowed Rodriguez to submit a writing in compliance by

February 12, 2003. A hearing would then be scheduled, at which

the government would be allowed to give voice to its position on

Rodriguez’s compliance with the safety valve requirement based on

his written statement.

The originally scheduled April 1, 2003, sentencing

hearing was called but was converted into an evidentiary hearing

on Rodriguez’s safety valve compliance. The court questioned

Rodriguez directly. The government, having acquired Rodriguez’s

written statement shortly before the hearing, maintained its

position that Rodriguez had not provided a truthful and complete

statement regarding his criminal offense. Distilled to its

essence, the government had evidence – pilot's logs - indicating

Rodriguez's involvement with approximately 19 flights importing

contraband. Rodriguez had maintained his involvement was limited

-5- to four or five flights, "more or less." The government also had

a notarized statement from co-defendant Domingo Garcia that

indicated Rodriguez was involved in the importation of some 290

kilograms of cocaine. The court asked the government to provide

copies of the pilot's logs that the government maintained proved

Rodriguez was not forthcoming. On April 8, 2003, the government

submitted the logs, Garcia's statement, and other evidence.

By order dated June 11, 2003, the district court found

Rodriguez had failed to satisfy the fifth requirement of the

safety valve provisions and was ineligible for sentencing below

the statutory minimum. The sentencing hearing was called again

on July 2, 2003, but was continued until July 15 at Rodriguez's

request. Just prior to the final hearing, Rodriguez filed a

statement in which he confirmed that the pilot log entries were

accurate. His written statement also acknowledged that he had

engaged in several transactions with co-defendant Domingo Garcia

involving approximately 290 kilograms of cocaine. Rodriguez

insists that these admissions fulfilled his obligations under

section 5C1.2(a). The district court was less than impressed,

noting that Rodriguez "had ample opportunity before the

sentencing hearing to disclose information that he had on the

offense, in a timely manner...[a]nd this handwritten statement

-6- file[d] 20 minutes ago or 25 minutes ago is not a timely

disclosure...."

V. DISCUSSION

Rodriguez avers that he is entitled to another bite of

the apple, because under the express language of 5C1.2(a) he need

only provide a complete and truthful debriefing by the time of

the sentencing hearing. The argument fails on two grounds.

First, it ignores the fact that Rodriguez did not provide

complete disclosure by the time of the sentencing hearing.

Second, the safety valve provisions cannot mean that the

district court must let a defendant nibble at the apple so as to

frustrate the imposition of a sentence as justice demands. We

briefly explain.

Rodriguez was debriefed on April 26, 2002. On February 10,

2003, Rodriguez filed additional statements clarifying his

debriefing statements. The first sentencing hearing was

scheduled for and held on April 1, 2003. As far as Rodriguez

knew, he would be sentenced at that time. During the course of

that hearing, Rodriguez was directly examined by the court. The

following exchange took place concerning the declaration filed on

February 10, 2003:

THE COURT: What is stated there, is that all you know concerning this offense or any other scheme related to the offense that you were charged with?

-7- DEFENDANT RODRIGUEZ: This is everything I know about this crime, your honor. Virtually everything I know has been specified here.

Based on the government's contrary evidence the district

court denied the safety valve. In due course, sentencing was set

to proceed further on July 2, 2003, and then again continued to

July 15, 2003. Shortly before the July 15 sentencing hearing was

convened, Rodriguez filed a statement acknowledging as true both

the dramatically different statements of a co-conspirator, as

well as the veracity of the pilot logs. Thus, twice after the

initial sentencing hearing commenced, and after stating under

oath that he had disclosed all he knew, Rodriguez provided new

information and detail.

Even taking the language of 5C1.2(a) on the terms

Rodriguez urges -– that the district court was required to accept

debriefing information up to the time the sentencing hearing

began -- Rodriguez nevertheless plainly had not provided a

complete and truthful disclosure, and he thus defaulted on his

obligation under the plea agreement. The district court clearly

indicated, and the record clearly reflects, that the sentencing

hearing began April 1, 2003. During the course of that hearing –

after the sentencing hearing began – Rodriguez proffered new

information. Again during the July 3, 2003 hearing Rodriguez

attempted to maneuver into a new position, faced with the

-8- information provided by the government. Finally, mere minutes

before the July 15, 2003 continued sentencing hearing began,

Rodriguez yet again proffered new information. Having materially

amended his statement three times after the commencement of the

sentencing hearing, it is all too obvious that Rodriguez had not

been forthright.

In Matos, we held that the deadline for making truthful

and complete disclosure is the moment that the sentencing hearing

starts. Matos,

. See also, United States v. Marin,

(7th Cir. 1998); United States v. Long,

(8th Cir. 1996)(Per Curiam). Rodriguez's

three day sentencing hearing began April 1, 2003, but even

charitably viewing the hearing as commencing at a later date,

Rodriguez’s statements throughout his interactions with the court

and with the government were, up until the very last moment,

equivocations and half-truths. That the opportunity to provide

information pursuant to the safety valve provisions may become

foreclosed at the start of the sentencing hearing does not mean

that the defendant gets to withhold material information until

that moment. The obligation to provide truthful and complete

information was a continuing one throughout the debriefing

process.

-9- Where, as here, a defendant puts the government on a

starvation diet - providing morsels of information when the

defendant is presented with the truth – he is engaged in artful

manipulation, not complete and truthful disclosure. Rodriguez’s

conduct does not come close to timely straight talk.

The sentence imposed by the district court is affirmed.

-10-