*1 (quoting Corp., Brown v. Nucor Cir.2009)) quotation omitted).
marks
III.
Finding no error in district court’s decisions,
pre-trial judgment we affirm the
of the district court on Holmes’ convictions aggravated
for two counts of sexual abuse
of a child.
AFFIRMED America,
UNITED STATES of
Plaintiff-Appellee, AIDOO, Defendant-Appellant.
Frank
No. 10-4752.
United States Court of Appeals,
Fourth Circuit.
Argued: Oct. 2011.
Decided: Feb. 2012. *3 Hurson,
ARGUED: Brendan Abell Of- Defender, fice of the Federal Public Balti- more, Maryland, for Appellant. Mushtaq Zakir Gunja, Office of the United States Baltimore, Attorney, Maryland, Appel- for lee. ON BRIEF: Wyda, James Federal Defender, Baltimore, Maryland, for Public Appellant. Rosenstein, Rod J. Attorney, States R. Harding, Robert As- sistant Attorney, United States Office of Baltimore, the United Attorney, States Maryland, Appellee. for TRAXLER, Before Judge, Chief KEENAN, GREGORY and Circuit Judges.
Chief Judge TRAXLER majority wrote the joined. qualify KEENAN Judge in which opinion, valve, in a Adoo met with the dissenting wrote
Judge GREGORY session. Adoo told the opinion. ment that this incident was the first time OPINION smuggled he had ever heroin and $10,000 a man paid had Adoo been TRAXLER, Judge: Chief identify only as “Kofi.” Adoo did not could to unlawful guilty pleaded Frank Adoo in the say who his contact of 21 violation of heroin importation be, and he identified no one 952(a). sentencing, At the dis- U.S.C. *4 in being as involved the had not that Adoo trict court concluded 32-33, Athough scheme. J.A. 130-31. eligi- not therefore was truthful and been provided phone number for Adoo had “safety the valve” sentencing for under ble arrested, he was he Evans Twum when stat- otherwise-applicable exception to implicate smug- refused to Twum the minimum sentence. See U.S.C. utory gling. government The showed Adoo his 501.2(a). 3553(f); The court U.S.S.G. passport, stamps showing with dozens of imprison- months’ Adoo to 60 sentenced Ghana, and trips numerous out of told ment, permitted minimum sentence appeared to passport Adoo that be appeals, Adoo and we the statute. under drug smuggler. that of an international affirm. explained Europe Adoo that he traveled to buy and the United States to clothes at I. department outdoor bazaars and stores. intelligence sug- had officials Customs brought the clothes back in Adoo said Adoo, a native and resident of gesting then resold the clothes in his suitcase and Netherlands, and a citizen of Ghana 31-32, 55. The Ghana. J.A. smuggling. Ater drug involved in proffer informed Adoo at the session cash for a paid Adoo had learning that being he was truthful and did believe he boarded a just days a few before ticket requirements that he did not meet the Ghana, stopped the officers flight from he landed at Baltimore-Wash- Adoo when eventually pleaded guilty March to a sin- Airport on Adoo ington International importing plea heroin. The initially gle told the officers that count of 2009. Adoo agreement stipulation included a to facts in the States to visit his he was Twum,” prove beyond that the “would “Evans the name listed on nephew doubt,” 23, including a form. When a reasonable J.A. Adoo’s customs declaration “[intelligence [by obtained called Twum at the number statement the officers Adoo, answering showed that Adoo had person officials] Customs provided hung smuggling been involved in heroin activi- phone very seemed nervous back, to an per- and the ties. Adoo had traveled address up. The officers called by Nigerian York utilized heroin phone identified himself New answering son apprehended who were John again hung up. smugglers Michael as Jackson Kennedy Arport in- and Boston.” J.A. that he had F. finally Adoo admitted noted the heroin, eventually passed plea agreement 24. The and he gested to containing grams opposition 998.4 of heroin. ment’s pellets right to preserved valve but Adoo’s importing one count of He was indicted on qualified court that he argue with to the district possession one count of heroin and valve and Hoping sentencing for heroin. intent distribute agreement; large quantity his safe- her- appeal reject should the court ingested (just oin had Aidoo under a kilo- argument. ty-valve gram) suggested that he was an experi- (“PSR”) pre presentence report The smuggler; enced that Aidoo never had sentencing stated that in advance of pared States; contact in identified his the United meet the criteria set for “appears Aidoo his international-clothes-buying- and that ... without re of a sentence imposition and-reselling story was not believable. minimum sentence.” any statutory gard The noted that while counsel accep Applying 104. a three-level J.A. for Aidoo had stated in his reduction and the tance-of-responsibility letter that some of Aidoo’s international defen reduction two-level trips had to obtain been medical treat- require the safety-valve meet who dants ment, Aidoo himself had not mentioned 2D1.1(b)(11), ments, see U.S.S.G. trips during such session. advisory calculated that Aidoo’s sen PSR for Aidoo Counsel asserted that Aidoo tencing range was 57-71 months. completely had been truthful about PSR, for Ai- receiving After counsel *5 led conduct that to his arrest and was letter outlin- doo submitted to the court a sentencing entitled to under the his view of Counsel con- ing sentencing. Although valve. counsel evi- presented no that all tended Aidoo had satisfied of the support story, dence to Aidoo’s did counsel safety-valve requirements and noted that represent to the court that had counsel government objected to the the had not Congressional read certain and testimony finding eligible in the that was PSR Aidoo newspaper indicating various articles letter, safety-valve. for the In the counsel drug ingest, just on average, mules that several of Aidoo’s interna- asserted drugs. a of kilogram Counsel also noted trips purpose had been for the of tional had Aidoo medical records in pos- un- obtaining medical treatment that was session he was when arrested that showed day available to Aidoo in The Ghana. he had received medical in treatment Bel- filed, govern- after Aidoo’s letter was the gium at four times. argued least Counsel filed a sentencing ment memorandum ob- in stipulation plea agreement jecting application prior about Aidoo’s activities an was not Aidoo truthful because had not been smuggled admission that Aidoo had previ- specifying believing its reasons for Aidoo merely ously, agreement but reflected his ineligible. to be had previously Aidoo listed an address At the sentencing hearing, point that at some was associated with explained opposition ment its drag smugglers.1 When asked the dis- valve, reiterating points trict court how Aidoo paid had for all of his in made its travel, memorandum. The international counsel stated had he government stated that claim that Aidoo’s spoken pastor to the in Aidoo’s church March 27 incident was the first time he that the church provided Ghana and had smuggled had heroin was inconsistent with some financial assistance. argued Counsel the information stipulated plea was free to disbelieve actually 1. We note that counsel’s statement seems to visited the Aidoo address associ- suggest previous trips that on to the United drug smugglers. ated precise with The States, Aidoo listed on his customs declara- connection to details of Aidoo’s the New York tion form an address New York that was address, however, are not relevant to de- our by Nigerian drug smugglers, used while the cision. stipulation plea agreement in the indicates II. clothes-buying story about his prior trips were not trips, but that A. plan with the a common scheme safety-valve requires statute The sen- and that Aidoo was of conviction offense tencing disregard any statutory courts to explain trips quali- those required to not if mandatory minimum sentence the defen- fy for (1) does not dant establishes that: he have concluded that Aidoo The district court (2) history point; more than one criminal sentencing under the entitled to was not violence or he did use or threaten im- safety valve because of the “inherent a possess dangerous firearm or other explanation of Aidoo’s of his plausibility” (3) weapon; the offense did not result The court travel. J.A. 53. international (4) bodily injury; death or serious he was explained: leader, organizer, manager, not an or su- (5) others; pervisor truthfully he was not a statement of some [T]hat with all evidence he was wholesale business that kind of and information about the offense and re- freight- on a shipments back arranging 3553(f). lated offenses. See 18 U.S.C. shipment, a bulk or that er or just simply from factories. It’s buying statute, Under person go that a can implausible given opportunity must be an to make a in Brussels or some department store recommendation, requires but the statute buy garments, put city, some other independently the district court to deter Ghana, *6 suitcase, go in back to them the requirements mine whether the have been price for a that covers the and sell them met, including whether the defendant was trips. expenses of the id.; Ivester, truthful. See States v. United (4th Cir.1996). 182, for inter- In All the thousands of dollars 75 F.3d 185 this case, staying dispute travel and in hotels is there is no that Aidoo satis national and, reason, requirements first four simply implausible, for that fied of 3553(f). eligible only question is I conclude that Mr. Aidoo is not The whether requirement by the fifth for the valve. Aidoo satisfied “truthfully providing] to the Government explained for Aidoo then J.A. 53. Counsel all information and evidence the defendant proffer the court that Aidoo had that concerning has the offense offenses clothes at primarily buying talked about of of conduct or were the same course had men- outdoor bazaars and fairs and plan.” of a common scheme or 18 U.S.C. store. The only department tioned one 3553(f)(5). accepted proffer but district court The defendant bears the burden of change that it did not its conclu- explained “proving] prerequisites appli signal event [is] sion: “[T]he provision, back to cation of the valve includ go go clothes into a suitcase disclosure, met.” Ghana, anything ing truthful have been so we don’t have Beltran-Ortiz, 91 F.3d oper- as a wholesale United States could be characterized 665, Cir.1996); accord United accepting proffer, my 669 ation. So even Alvarado-Rivera, 412 F.3d 55. The district States v. view is the same.” J.A. (8th Cir.2005) (en banc); sub- 947 United States thus concluded Aidoo was court (1st Cir.2002); 19, 23 mandatory Marquez, minimum v. ject five-year to the Gambino, sentence, him to States v. and the court sentenced United (2d Cir.1997); v. Ra- imprisonment. 60 months’ (7th Cir.1996). mirez, government if only arises the defendant credibility story: And because the burden is on the defen has established the of his dant, obligation has no plainly The defendant has the burden evidence of the defendant’s failure present proving, by preponderance of the satisfy requirements evidence, entitlement to relief under Sanchez, valve. States v. See United 3553(f). However, section where a de- (“The (8th Cir.2007) 978, 980 F.3d in her credibly submissions fendant has no burden to refute a defen States demonstrates that she has dant’s assertion that his information is all with the information she if proffer inadequate.”); truthful reasonably expected possess, was (“Were Marquez, 280 F.3d 24-25 we to claim, order to her defeat evidence, upon ... insist extrinsic district ment must at least come with forward accept courts would be bound to even the some suggest sound reason to other- most arrant nonsense from a defendant’s wise. long mouth so as the could not added; (emphasis Id. at 529 n. 25 citation directly byit independent proof. contradict omitted). Miranda-Santiago Since
A rule to that effect would turn the burden decided, the First Circuit has repeatedly out.”). persuasion inside emphasized the narrowness that hold
ing. For example, Marquez, the First rejected Circuit the defendant’s claim that B. Miranda-Santiago govern appeal, argues On Aidoo that the district present ment to showing evidence that his by concluding court erred he was not enti- disclosure was untruthful or incomplete. sentencing tled to Marquez, See at 24. F.3d The Mar acknowledges While Aidoo that the burden quez court reiterated the established rule proving compliance with the statute be- may reject that “a court a safe him, longs to argues prove that he did ty based on its reasoned as *7 compliance his and that government the sessment of the credibility defendant’s obligated therefore was to come forward light of the that may facts—and the court showing with evidence that he had not do so without the independent benefit of been truthful or that his disclosure was rebuttal evidence.” Id. As to the defen complete. less than Because the dant’s understanding of Miranda-Santia present evidence, ment did not such Aidoo go, the court explained that contends that the district court had no Miranda-Santiago merely stands for basis for refusing apply the valve. record, the proposition that when the whole, taken a support as will not a support
In
of his claim that the govern
finding that the defendant has failed to
required
ment was
disprove
story,
provide a truthful
complete proffer,
and
primarily
Aidoo relies
on
v.
United States
government’s
lack of confidence in
(1st
Miranda-Santiago,
“simply by Id.; saying, We don’t believe the see also United States v. Padilla- defendant,’ Colon, (1st Cir.2009) (reaf- doing nothing 23, and more.” Id. 578 F.3d 31 clear, however, 529. The court made it firming Marquez court’s understand- obligation on part ing of the of Miranda-Santiago); United States
607
Cir.1997)
(“The
(1st
70,
court’s conclusion in favor of
White,
at 1100
F.3d
v.
suggests
necessarily depends upon
in no sense
the defendant
(“Miranda-Santiago
arrive at
ability
court cannot
to dem-
persuasive
the defendant’s
a
regarding
determination
independent
eligible
onstrate to the court that he is
an
truthfulness, based on
sentence.”);
criminal defendant’s
the reduced
United States v.
Rather, we there
(1st Cir.1996)
before it.
Montanez,
the evidence
error to
merely
(“It
it was clear
held
up
persuade
to the defendant to
had
un-
that the defendant
been
conclude
truthfully provid-
district court that he has
truthful,
a
di-
solely on PSR which
based
required
ed the
information and evidence
court’s de-
contradicted the district
rectly
government.”
quotation
to the
termination.”).
omitted)).
marks
At least
cases like
one,
government opposes
this
where the
any obligation
on the
Since
valve,
a defendant
Miranda-Santiago
government
carry
proof
cannot
his burden of
without
has carried
only after
defendant
arises
some kind of evidence. See
presenting
argu
various
proof,
his burden
Cervantes,
was
ments
(10th Cir.2008) (“Absent a
favorable
story
disproving
evidence
present
government,
recommendation from the
a
on his assertion
dependent
are thus
put
defendant needs to
on evidence at the
proof
and estab
he carried his burden
sentencing hearing to meet his burden of
sentencing hearing
at the
he
lished
showing
truthfully
fully
that he
dis-
complete
a truthful and
disclo
provided
everything
closed
he knew and to rebut
information. The rec
sure of all relevant
contrary.”);
claims to the
ord, however,
support
does not
this asser
Martinez,
States v.
tion.
(7th Cir.2002) (explaining
that a defen-
for Aidoo insisted at
Counsel
gov-
“cannot meet this burden if the
dant
truthfully
sentencing that Aidoo had
told
truthfulness,
challenged
ernment
accu-
everything he knew about
racy,
completeness
of his statements
A de
leading
the incident
to his arrest.
produced nothing
persuade
and he
“bare assertion that
fendant’s
court
that his
were
district
disclosures
truthful,” however,
to “satis
is insufficient
complete”).2
truthful and
by preponderance
a
fy
prove
his burden to
Aidoo, however,
testify
full
at the
of the evidence that he
did
sentencing hearing,
presented
and he
no
honest disclosure.” United States v.
*8
(7th Cir.2004).
Montes,
631,
showing
pro-
other
that he had
381 F.3d
637
evidence
safety
government
complete
under the
vided the
with
and
The defendant’s burden
sure,
rests,
To
proof
truthful disclosure.
be
counsel
valve is a true burden
times,
carry
To
for Aidoo talked about evidence—the
at all
on the defendant.
burden,
persuade
showing
must
medical records
Aidoo received
the defendant
full,
newspaper
in Europe,
that he has made
treatment
and the
the district court
testimony
required
Congressional
articles and
indi-
truthful disclosure of information
Ramirez,
drug
cating
94 F.3d
is not unusual for
by
valve. See
2008) (noting
“may
sentencing proceedings,
that defendant’s evidence
2.
the nature of
Given
documents,
facts,
stipulated
proffer
supporting a defendant's claim
include
the evidence
or,
likelihood, testimony from the defen-
need not be as formal as
in all
of truthful disclosure
government
representative
dant
might
required in a trial. See United States
be
1254,
cross-examination”).
Cervantes,
(10th
subject to
v.
519 F.3d
1258
Cir.
matively
provided
to a
that he
com-
smugglers
ingest up
kilogram
to
establishes
documents, however,
and truthful
plete
govern-
were
disclosure to the
narcotics. The
ment,
that,
reject
arguments
court,
we
Aidoo’s
to the district
and
presented
not
Miranda-Santiago,
government
under
stipulate
government
did
present
showing
evidence
proffered by counsel
of the information
that he had not been truthful or that his
Nonetheless, even if we treat
for Aidoo.
than complete.
disclosure was less
counsel’s statements about
documents
evidence, they do little to further Ai-
as
Our conclusion that the
had
explain
doo’s claim. The medical records
obligation
present
rebutting
no
evidence
only a few of the “dozens and dozens” of
leaves little room for Aidoo
trips
pass-
on
international
shown Aidoo’s
rejection
challenge
the district court’s
32,
ability
port, J.A.
and the
of some
sentencing
valve. At the
hear-
ingest
a kilo of
smugglers
narcotics
ing,
government,
with its
accordance
says nothing
that a
recommendation,
about
likelihood
statutory right to
amake
“body packer,”
3553(f),
as Aidoo
first-time
see
pointed
18 U.S.C.
out the
be,
ingest
large
shortcomings
proffer,
claimed to
could
such a
of Aidoo’s
such as
evidence,
best,
implicate
his refusal to
quantity.
may
This
be
Evans Twum or to
identify
story,
otherwise
his contact
the Unit-
consistent with Aidoo’s
but the evi-
States,
suggested
ed
and
that Aidoo’s
proving
dence falls far short of
that Ai-
clothes-buying story was not believable.
full
truthful
doo
and
disclosure.
(“The
Ramirez,
gov-
See
court is free to consider
lies the defen
A.
may
dant
evaluating
have told when
In the
ruling,
course of its
defendant’s
truthfulness.
See United
district court stated that “if Mr. Aidoo was
Nuzzo,
States v.
119 n. 25
an experienced
smuggler,
heroin
then he
(2d Cir.2004) (“While a
may
district court
required
was
to advise the
fifth
find the
criterion of the
that fact
explain
experience,
and
how
omissions,
despite prior
satisfied
lies and
this,
many times he has done
who he
did
neither a district court nor this Court is
for,
operandi.”
his modus
J.A. 52. Aidoo
precluded
considering
prior
from
those
lies
argues that
description
this
of the disclo
in determining
omissions
whether the
obligation effectively
sure
requires disclo
defendant
met
has
his burden of proving
every
sure of
criminal act the defendant
information
as of sen
has ever committed. While a defendant
truthful.”);
tencing
complete
seeking a substantial-assistance reduction
Brownlee,
(“[T]he
B. pose regard a sentence ... without to any The included a determination sentence, PSR minimum if statutory the court “ap- officer that Aidoo probation sentencing, finds at the Government after the criteria” for pealed] meet sentenc- opportunity has been to make afforded ing recommendation,” valve. J.A. 104. The under that defendant satis- Rules of Criminal Procedure re- statutory Federal requirements (emphasis fied the objections quire added)), to the PSR to be filed apparent and it is not us that PSR, days receipt within fourteen statutory obligation court’s to seek out 32(f)(1); neither see Fed.R.Crim.P. government’s views should be affected any nor Aidoo filed formal by government’s timely failure to ob- objections days to the PSR. Six before ject safety-valve to a PSR’s recommenda- however, sentencing, filed tion. objecting
its memorandum event, assuming In the time application of the 32(f)(1) apply, limits of Rule we note that appeal, Aidoo contends that the district court Rule has
On by entertaining authority change the district court erred the time limits for 32(b)(2). untimely objection to government’s good cause. See Fed.R.Crim.P. safety-valve question PSR’s determination. Aidoo Given Aidoo’s failure to the time government’s objection, did not raise the timeliness of the liness *12 612 govern- the the evidence that he is entitled to it. The court’s decision to hear
district recommendation of may probation an favorable the objection ment’s be treated as officer does not relieve him of the burden. finding good of the existence of implicit government’s the Archuleta, Neither does failure to v. cause. See United States (citation omitted)); object.” (10th Cir.1997) n. 12 (4th Cir.1989) White, v. (“[N]o explicit finding good cause is (district court’s give accep- decision to necessary” when defendant failed to con- tance-of-responsibility reduction “is object to consideration of temporaneously by presentence report controlled the rec- untimely objection to recom- government’s ommendation, nor is the district court re- PSR.). that, mendation in It seems to us it quired apply simply gov- to because the else, nothing government’s right if un- specifically object ernment did not to its express to on the der the statute its views application”). proposed of the valve would con- applicability good modify cause to the time lim- stitute Accordingly, govern- whether or not the government’s sentencing its and treat the formally objected, ment obligat- Aidoo was 3553(f) Aidoo, timely by operation memorandum as filed. how- ed itself to ever, prepared come to court attempt argue prove does not even to to his enti- cause, safety-valve sentencing by tlement to against good the existence of and he con- vincing pro- the district court that he had therefore has failed to establish that the complete, vided truthful disclosure to the erred, much plainly district court less government. While Aidoo now contends erred, by hearing government’s views that he would have been “better posi- safety-valve eligibility. on his respond tioned” to to the government’s Moreover, if even Aidoo could sat if the government timely, views had filed a isfy the prongs plain- first three of the PSR, objection formal to govern- standard, error the claimed error in this opposition safety-valve ment’s to sentenc- sufficiently require case is not serious to ing throughout was known proceed- tous exercise our discretion to correct it. ings. The informed Aidoo at (“Plain Robinson, See F.3d er the end of the session that did only ror review exists to correct the most statute, qualified not believe he under the errors.”). grievous previ of unnoticed As plea agreement spelled out the discussed, ously the district court was stat opposition safety-valve ment’s sentenc- utorily required to make an independent ing, and reiterated that eligibility, determination of Aidoo’s Ai opposition its memorandum doo bore the proving burden of to the days filed six before sentencing. Aidoo district court that he had satisfied the argue did not below he needed addi- 3553(f). requirements §of Neither gather tional time to evidence to counter obligation independently court’s deter government’s position or otherwise mine eligibility nor Aidoo’s obli suggest by that he was surprised gov- gation prove eligibility was affected opposition ernment’s by unobjected-to or relieved recom safety valve. And even on appeal, Aidoo mendation the PSR. See United States argument that identifies no he would have McLean, 1302-03 pre- made or evidence that he would have (D.C.Cir.1991) (A seeking defendant an ac support sented to his claim truthful ceptance-of-responsibility reduction “must disclosure if the had filed a prepared carry be objection his burden of con formal to the PSR that was time- 32(f)(1). vincing preponderance ly the court under Rule GREGORY, circumstances, Judge, dissenting: cannot Circuit we these Under fairness, integrity or conclude challenges Mr. Aidoo the district court’s *13 judicial proceedings of reputation public eligibility safety standard of valve re- affected the district seriously was 3553(f) § lief under 18 U.S.C. and U.S.S.G. govern to consider court’s decision 501.2(a) the court’s apply and failure to notwithstanding gov ment’s views to his provision sentencing. timely a formal failure to file
ernment’s
Both at
the scene of his arrest and
safety-valve
the PSR’s
rec
objection to
during
proffer,
pro-
his
valve
Aidoo
Hargrove, 625 F.3d
See
ommendation.
all
he
gov-
vided
information
could to the
carry
Aidoo has thus failed to
at 184.
ernment about the source of the narcotics
plain-error
under
review of
his burden
ingested,
itinerary,
his travel
his desti-
is entitled to relief
establishing that he
nation,
States,
contact in the
his
his
error.
See
for the asserted Rule 32
promised compensation,
quantity
and the
Byers,
v.
of narcotics involved
his offense. De-
Cir.2011) (“Plain
error
review
proffer,
spite his exhaustive
the district
circumscribed,
meeting
ineligible
all
court deemed Aidoo
for the safe-
strictly
is
ty
difficult,
upon
government’s
valve based
as
should be.”
prongs
four
that Aidoo
speculation
was untruthful
marks and alteration
quotation
—
previous
about
travel on his passport and
denied,
-,
omitted)), cert.
U.S.
previous
this
travel must have been
(2011).
468,
Although
5C1.2 does not define
government cited its disbelief of Aidoo’s
“course of conduct” or “common scheme or
justification by summarily contending it is
plan,”
advisory guidelines
do. Under
impossible
in
money
to make
this fashion.
advisory guidelines,
part
offenses are
evidence,
Absent data or other empirical
a
plan”
they
of
“common scheme or
when
the district court credited
speculation
this
“substantially
to each
are
connected
other
grounds
denying safety
as
for
valve relief.
least one common factor such as
victims,
accomplices,
common
common
assuming
Even
argument
for the sake of
purpose
operan-
common
or similar modus
that Aidoo did lie about his reasons for
(n.9(A)).
1B1.3,
di.” U.S.S.G.
comment.
travel,
past
there is
in
no detail
the record
that
qualify
part
“Offenses
do not
as
of a
activities,
regarding
prior
Aidoo’s
travel
plan may qualify
common scheme
as
.or
apart from passport stamps and an “im-
they
course of conduct if
part of the same
plausible” explanation,
support
the nec-
sufficiently
are
connected or related to
essary inference that Aidoo’s travel must
as to warrant
each other
the conclusion have been related
drug
activities. Ai-
they
part
single
that
are
of a
episode,
lying
doo could have been
smuggling
about
spree,
ongoing
or
series of offenses.” Id.
clothing or
his involvement in
number
(n.9(B)).
appropriate
at comment.
Factors
illegal
legal
of
or
activities of no relevance
degree
to this determination include the
of
to the
valve determination. The
similarity
offenses,
of
regularity
of
fact that Aidoo
sufficiently justify
failed to
offenses,
repetitions of the
and the time
prior stamps
passport
in his
sup-
does not
interval between the offenses. Id.
port the
leaping
district court’s
inference
case,
In
that Aidoo is “an experienced
smug-
this
heroin
conclusion
gler”
assumption
proffer
upon
false
defeated
which the dis-
reduc-
—an
(1)
requires
tion
trict court relied in articulating
three
its stan-
determinations:
travel,
eligibility
that Aidoo
dard of
lied about international
valve relief.
(2) that Aidoo’s
about international
lies
Finally,
if
even we were to credit the
in
prior
travel were
fact lies about
involve- government’s claim that Aidoo’s acknowl-
(3)
so,
drug activity,
ment with
if
edgment
the prior drug intelligence
in
prior
these
drug
qualify
part
activities
as
plea agreement
was somehow an ad-
of the “same course of conduct” or “com-
mission
he had been involved
drug
plan”
mon scheme or
as the offense of
smuggling
point
before—a
Aidoo vehe-
conviction.
mently denies—there is still no detail
As to the first
alleged prior drug activity
determination —whether
about this
Aidoo did in fact
permit
lie
would
the district court to make
—the
deny
necessary
“prior drug
determination to
held that because the
the third
activities
substantially
were not
connected or suffi-
Nothing
present
relief.
safety valve
ciently
conviction,
related
the offense of
speculated prior
about this
ac-
the record
they did not constitute a common scheme
court
tivity
permit
that would
the district
or
or the same
plan
course of conduct
an
Aidoo lied about
incident
to determine
5C1.2(5).”
meaning
within the
Id. at
of con-
the “same course
that was
965-66. The court also noted that “[i]n
plan”
a common scheme or
as
duct or
determining sufficient connection [between
required by the Guidelines. U.S.S.G.
offenses],
consider,
alia,
may
a court
inter
5C1.2(5).
deny
A recommendation to
(1)
following
factors:
degree
on a
simply
valve relief cannot
rest
(2)
offenses;
similarity between the
claim—even a substantiated one—that a
offenses;
regularity
repetitions
past drug
was involved in
activi-
defendant
(3)
the time interval between the of-
Miller,
ty.
UNITED STATES
Plaintiff-Appellee, HERNANDEZ, Defendant-
Melinda
Appellant.
No. 11-40201. Appeals, States Court of
Fifth Circuit.
Feb. 2012.