UNITED STATES of America, Plaintiff-Appellee v. Angelo Carlinn HOLMES, Defendant-Appellant
No. 16-40145
United States Court of Appeals, Fifth Circuit.
May 26, 2017
933
Angelo Carlinn Holmes, Pro Se
Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
Angelo Carlinn Holmes was convicted of possession with intent to distribute meth-
I
Holmes was charged with one count of possession with intent to distribute more than 500 grams of a substance containing methamphetamine, a violation of
According to Holmes‘s Presentencing Report (PSR), Holmes travelled to Texas to visit a woman he had met in New Orleans two months earlier. The woman‘s friend gave Holmes drugs to smuggle to a bus station in Houston. When Holmes‘s Greyhound bus stopped at a U.S. Border Patrol checkpoint in Texas, a border patrol agent who suspected that Holmes was concealing drugs patted him down and discovered two bags of a “white powdery substance.” Laboratory testing determined that the substance was methamphetamine. The PSR did not describe any other drug trafficking.
The PSR calculated Holmes‘s total offense level at 29. With his criminal history category of I, Holmes‘s Guidelines sentencing range was 87- to 108-months’ imprisonment, but Holmes was subject to a statutory minimum term of 10-years’ imprisonment.
Holmes was first called for sentencing on January 20, 2016. The parties informed the court that Holmes was eligible for relief under the “safety-valve” provision in
At the rescheduled sentencing hearing, the DEA agent testified that he conducted Holmes‘s debrief on December 3, 2015, and that he believed that Holmes “was being as truthful as he could.” The agent testified that Holmes said that he had met a woman named Cheyenne at a club in New Orleans and that Cheyenne connected Holmes with the drug supplier in Texas. Holmes admitted that the instant offense was his second load of drugs involving Cheyenne. Holmes said that he sold the first load of drugs “on the streets” in New Orleans, but did not specify where.
The district court asked whether the agent had questioned Holmes about his plans to sell the second load of drugs. The agent responded that he had asked but Holmes “wasn‘t forthcoming as far as that.” The agent elaborated that he “asked [Holmes] where he was going to sell it and he just didn‘t provide that information.” Quoting the relevant statutory language, the district court asked the agent to confirm whether “[Holmes] . . . truthfully provided to the Government all information and evidence the Defendant has concerning the offense or offenses that were part of the same course or scheme.” The agent answered that Holmes had not.
After the agent‘s testimony, the prosecutor argued that the Government had been “misguided in [its] request . . . that the Court allow a safety-valve adjustment. . . .” The prosecutor said she had thought Holmes was just a transporter with no knowledge beyond where he was supposed to pick up and deliver the drugs. Instead, Holmes was a street dealer who
Defense counsel asked for “more time . . . to do a follow-up [with the agent,]” which the district court denied after it confirmed that defense counsel‘s investigator attended Holmes‘s debrief. The district court allowed defense counsel to consult with Holmes who declined to testify. In light of the DEA agent‘s testimony, the court denied the requested safety-valve relief. The court explained that it could not in “good conscience” find that Holmes had truthfully provided everything he could when it was clear that Holmes was not merely a transporter but was in fact a seller and that Holmes had not been forthcoming about the details of his planned drug sales.
The court sentenced Holmes to the mandatory minimum of 10-years’ imprisonment, explaining, “[t]ruthfully disclosing all that you know is required. Apparently [you were] given that opportunity and [were] not forthcoming, according to the witness. So—that‘s the sentence—basis of the sentence.” Defense counsel reiterated her objection to the denial of safety-valve relief.
Holmes now appeals the district court‘s judgment.
II
We review the district court‘s legal interpretation of the safety-valve provision de novo and its findings of fact as to the application of the provision for clear error. United States v. Flanagan, 80 F.3d 143, 145 (5th Cir. 1996). “A factual finding is not clearly erroneous if it is plausible, considering the record as a whole.” United States v. King, 773 F.3d 48, 52 (5th Cir. 2014), cert. denied, — U.S. —, 135 S.Ct. 1865, 191 L.Ed.2d 741 (2015) (internal quotation marks and citation omitted); United States v. Contreras, 597 Fed.Appx. 265, 266 (5th Cir. 2015) (unpublished) (“The district court‘s finding that [the defendant] was not truthful was plausible in light of the record as whole and not clearly erroneous.“).
The safety-valve provision permits a district court to disregard the statutory mandatory minimum sentence under certain drug statutes, including
In support of his argument, Holmes primarily relies on United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996). In Miranda-Santiago, 96 F.3d at 527-30, the First Circuit held that the district court clearly erred in denying the safety-valve reduction. Id. at 527-30. The First Circuit explained that “mere conjecture” could not alone bar application of the safety-valve reduction. Id. at 529. The court elaborated that the “district court‘s bare conclusion that [the defendant] did not ‘cooperate fully,’ absent either specific factual findings or easily recognizable support in the record, cannot be enough to thwart her effort to avoid imposition of a mandatory minimum sentence.” Id. at 529-30. In a later case, the First Circuit clarified its holding in Miranda-Santiago: ”Miranda-Santiago in no sense suggests that the sentencing court cannot arrive at an independent determination regarding a criminal defendant‘s truthfulness, based on the evidence before it.” United States v. White, 119 F.3d 70, 74 (1st Cir. 1997).
Our court has relied on Miranda-Santiago as well. In United States v. Miller, 179 F.3d 961 (5th Cir. 1999), the Government argued that denial of safety-valve relief was justified by the defendant‘s supposedly false claim that he first learned how to dry cocaine during his most recent drug offense. Id. at 967. Citing Miranda-Santiago, we found the Government‘s assertion that the defendant was untruthful to be “pure speculation,” because the only plausible support for this assertion was the defendant‘s prior drug trafficking experience and the complexity of the cocaine drying process. Id. at 968-69.
This case is distinguishable from Miranda-Santiago and Miller. The district court‘s denial was not based on “mere conjecture” or “bare conclusion[s],” see Miranda-Santiago, 96 F.3d at 529-30, but on specific evidence in the record supporting a finding that Holmes did not “truthfully provide[ ] . . . all information” about his offense. See
Even if we found the agent‘s testimony to be ambiguous, as Holmes appears to suggest, there is still no basis to second guess the district court. It was Holmes‘s burden to demonstrate applicability of the safety-valve provision, including that he “truthfully provided . . . all information” about his offense. See Flanagan, 80 F.3d at 145-47. Holmes offered no evidence to rebut the DEA agent‘s testimony, and the district court did not clearly err in relying on that testimony to deny safety-valve relief.
Holmes also argues that “[the agent] did not provide any evidentiary basis to believe that [he] had particular plans for the
III
In addition to his appeal of the district court‘s denial of safety-valve relief, Holmes also appeals his conviction. Holmes argues that the evidence presented at trial was insufficient to support his conviction under
IV
For all the foregoing reasons, we AFFIRM the judgment of the district court.