United States v. Espinosa

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED No. 96-5208 U.S. COURT OF APPEALS Non-Argument Calendar ELEVENTH CIRCUIT ________________________ 04/15/99 THOMAS K. KAHN D.C. Docket No. 95-142-CR-LCN CLERK

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

FIDEL ESPINOSA, Defendant-Appellant.

__________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (April 15, 1999)

Before HATCHETT, Chief Judge, and TJOFLAT and BLACK, Circuit Judges. PER CURIAM:

Fidel Espinosa, having been convicted by a jury of four offenses involving

cocaine trafficking, appeals the sentences he received in the district court for those

offenses. The only question he raises is whether the district court, in ruling on

Espinosa's request for a two-level reduction of his base offense level under

U.S.S.G. § 2D1.1(b)(6),1 improperly deferred to the Government.

Section 2D1.1(b)(6) provides a two-level decrease for a defendant who

meets the requirements of the safety-valve provision of 18 U.S.C. § 3553 (f)(1)-(5)

(listed verbatim in U.S.S.G. § 5C1.2.). At issue here is the district court's

deference to the Government's position on whether Espinosa complied with the

fifth safety-valve requirement. That requirement is as follows:

(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.

18 U.S.C. § 3553 (f)(5) (1994) (emphasis added).

1 Appellant was sentenced under the 1995 version of the sentencing guidelines, in which this provision was located at § 2D1.1(b)(4). The content of the subsection is unchanged; hence, we cite to the current version of the sentencing guidelines.

2 Prior to sentencing, Espinosa gave the Government a statement concerning

the cocaine trafficking that led to his and his confederates' indictment. Then, at the

sentencing hearing, he asked the district court to determine the truthfulness of the

information he had provided, and to give him the benefit of the safety-valve

provision. The Government objected, contending that Espinosa had not told the

truth regarding the quantity of cocaine involved in the trafficking scheme.

According to Espinosa, 30 kilograms were involved; according to the Government,

it was 300 kilograms. The court's response to this dispute was to say that because

Espinosa had not testified at trial, it had no way of knowing whether he was telling

the truth. The court therefore accepted the Government's position and denied

Espinosa's request for an offense-level reduction.

The district court erred in deferring to the Government; the responsibility for

determining the truthfulness of the information the defendant provided to the

Government was the court's. See United States v. White, 119 F.3d 70, 73 (1st Cir.

1997); United States v. Gambino, 106 F.3d 1105, 1110 (2d Cir. 1997); United

States v. Maduka, 104 F.3d 891, 895 (6th Cir. 1997); United States v. Thompson, 81 F.3d 877, 880 (9th Cir. 1996). The burden of proof on the truthfulness issue

lies, of course, with the defendant.

3 VACATED and REMANDED, for further proceedings not inconsistent with

this opinion.

4