Case Information
*1 Before W OOD Chief Judge R IPPLE B ARRETT Cir cuit Judges .
R IPPLE Circuit Judge
. Maurice pleaded guilty distributing crack cocaine violation U.S.C. § 841(a)(1). Because prior felony conviction, faced statutory minimum ten years prison, unless qualified “safety valve” 3553(f)(5). initially denied benefit ground later determined be erroneous. Consequently, we vacated his sentence and re manded for further proceedings. Collins 368–69 2017).
On remand, the court again determined that Mr. Collins did qualify for safety valve. court fo cused on statement his proffer interview about what he intended significant amount of cash found his car his arrest. Doubting veracity of his claims about cash, concluded Mr. Collins established “truthfully provided Government all concerning offense or offenses were part same course conduct common scheme or plan.” 3553(f)(5). Accordingly, did give him ben efit resentenced him statutory mandatory minimum.
Mr. Collins again appeals sentence. He contends erred assessing relative burdens proof respect eligibility valve. He also submits provided complete dis closure before sentencing. For rea sons stated below, affirm judgment.
I
BACKGROUND fall cooperating individual working Drug Enforcement Administration (“DEA”) informed agents Mr. Collins involved distribution Danville Champaign, Illinois area. informant related sold him ounce quantities co caine multiple occasions. He said and another individual pooled their cash and they paid $32,000 for a kilogram of cocaine. Following initial interview, same informant participated, over a five month period in four controlled buys of ounce quantities of cocaine from Mr. Collins. On another occasion, agents attempted to arrange a buy of three quarters of a kilogram of cocaine, Mr. Collins unable acquire amount. May agents arrested Mr. Collins outside Cham
paign, Illinois, while he driving eastbound toward Dan ville away from Clinton. At arrest, DEA agents seized vehicle about $40,000 cash. Follow ing arrest, agents learned through a different source working a separate local law enforcement task force Mr. Collins planned use cash buy a kilogram cocaine Danville. Government charged distributing crack cocaine violation U.S.C. §
841(a)(1). He subsequently pleaded guilty. Because prior felony conviction, he faced statutory minimum ten years prison. See id. § 841(b)(1)(B). A few weeks before sentencing, met Government prof fer interview; hoped would earn entitlement sentencing under “safety valve” exception statuto ry minimum. U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a)(5). This exception requires “truthfully provide[] all defend ant concerning offense or offenses were part same course conduct common scheme or plan.” 3553(f)(5).
During proffer interview, Special Agent Joe Green asked Mr. Collins what he intended $40,000 found in his vehicle his arrest, at least $15,000 which, Mr. Collins admitted, were proceeds sales. Mr. Collins explained he had planned buy nice car Clinton Auto Auction denied any intent purchase kilogram cocaine. Mr. Collins told agent: “I going Danville first gym. Then I was go ing auction during evening.”
At original sentencing in May determined Mr. Collins had played supervisory role in offense, see U.S.S.G. § 3B1.1(c), which rendered him inel igible for safety valve reduction, see § 3553(f)(4); U.S.S.G. 5C1.2(a)(4). therefore im posed statutory minimum sentence months’ im prisonment indicated would chosen lower sentence had Mr. Collins been eligible for valve. Collins appealed. We held erred in applying supervisory role enhancement. We therefore remanded resentencing. See 368–69.
At resentencing hearing May Govern ment maintained still ineligible been fully his terview. particular, asserted made three false statements. first two statements con cerned working relationship another trafficker nature involvement particular transaction involving crack cocaine instead powder cocaine. dis trict disagreed with and concluded Mr. Collins been untruthful with respect these matters. third falsehood, according Government, con
cerned Mr. Collins’s statements about what planned $40,000 cash was carrying when arrested. On issue, took heard argu ment. Testifying Government, Special Agent Green pointed out Mr. Collins arrested on a Tuesday, Clinton Auto Auction held auctions Wednesdays Saturdays only. He also testified $40,000 would been “reasonable price” kilogram cocaine at time Mr. Collins’s arrest, “every once while,” traffickers found large amounts cash say they are “on their way purchase vehicle.” On cross examination, Special Agent Green agreed that, during investigation, largest amount Mr. sold at any one an ounce one half. Indeed, when Special Agent Green’s confidential formant attempted purchase three quarters kilo gram Collins, could acquire amount. Special Agent Green admitted invento ry Clinton Auto Auction might include some “decent” cars high end makers. After agent testified, recessed hearing so could watch videotape Mr. Collins’s interview. Mr. Collins did not testi fy.
When hearing reconvened, court stated it had reviewed disputed section video “mul tiple times” “watched heard tones” an effort understand Mr. Collins’s “true intentions.” The court then set forth six undisputed facts informed its ruling: (1) Mr. Collins was “dealing in, more less, ounce quantities cocaine”; (2) “$40,000 was an approximate price kilogram powder cocaine”; (3) dealers typically “buy large quantities cocaine cash”; (4) confidential source “indicated [that Mr. Collins] intended purchase kilo … during operative frame”; (5) “there was Clinton Auto Auction day [Mr. Collins] was arrested”; (6) “he was driving away Clinton— towards it—with money.” was “skeptical [Mr. Collins] was being percent his tention $40,000” his explanation did “seem be reasonable.” acknowledged that, “[i]n lot ways, just ‘he said/she said’ sort thing,” stressed proving explana
tion truthful. Although “troubled,” concluded satisfied burden, *7 No. 18 ‐ 2149 7 thus, did qualify for safety ‐ valve relief. After sentenc ing months prison, “actively encourag[ed]” him appeal “want[ed] make sure [it had] interpreted law correctly proof.”
If been eligible valve, guideline range would been months.
II
DISCUSSION As part Mandatory Minimum Sentencing Reform Act (“MMSRA”), Congress created so ‐ called “safety ‐ valve” provision, § 3553(f), which abro gates mandated minimum sentences some first time, low level offenders federal cases. Before MMSRA’s enactment, could impose sen tence below statutory minimum only upon Govern ment’s motion, based substantial assis tance authorities. See id. 3553(e); U.S.S.G. § 5K1.1. Be cause these motions primarily benefited offenders greater criminal involvement — thus, more — lower level offenders often received longer sentences than their more culpable counterparts. See Arring ton 144, 1996). To remedy inequity, Congress enacted provision. H.R. Rep. 4–5 (1994). provision requires a waive the imposition of statutory minimum sentence if finds defendant meets following five criteria:
(1) defendant does not more than crim inal history point, as determined under sentencing guidelines …; (2) defendant did not use violence or credible threats violence or possess firearm or other dangerous weapon (or induce another partici pant so) connection offense; (3) offense did not result death or serious bodily injury any person; (4) defendant not an organizer, leader, manager, or supervisor others offense, as determined under sentencing guidelines engaged continuing criminal enterprise, defined 848; (5) later than sentencing hear ing, defendant has truthfully provided Government all information defendant has concerning offense or fenses were part same course conduct or common scheme or plan, fact has relevant or useful other provide already aware infor mation shall preclude determination complied requirement. ‐ 9 U.S.S.G. § 5C1.2(a); see § 3553(f). This appeal focuses the fifth criterion. We review the district court’s interpretation safety valve provision under the statute sentencing guidelines de novo. United States v. Mon ‐ tes F.3d 631, (7th Cir. 2004) (citing United States v. Ramirez F.3d (7th Cir. 1996)). We review court’s factual findings about a defendant’s eligibility for safety valve, well as its ultimate conclusion, for clear error. Montes 634; Aceve ‐ Fitz (7th Cir. 2014).
A.
At late date, there can be question that de ‐ fendant must carry burden establishing eligibility safety valve exemption a mandatory minimum sen ‐ tence. Thirteen years ago, Ramirez 1996), reviewed denial safety valve relief defendant who provided only “basic de ‐ tails” his offense responded specific ques tions posed Government. Id. 1103. case, defendant argued once defendant offers infor mation states he has fully pro vided all knows, “the burden must shift gov ernment proffer pro vided completely truthfully.” Id. We rejected “shifting burden theory” affirmed court’s denial valve. We analogized departure under sentenc ing guidelines reasoned party seeking departure bears proving meets criteria, “logically follows moving 5.C1.2 reduction would be responsible prove enti *10 10 18 ‐ 2149 tlement it.” Id. at We therefore held application valve requires “the defendant, gov ‐ ernment, prove defendant’s entitlement sentence reduction,” emphasized that, throughout proceed ings, “the remains on prove enti tlement.” Id. 1101, 1102 (emphasis in original) (quoting United States v. Montanez , 82 F.3d 520, 523 (1st Cir. 1996)). We noted, moreover, our approach was “compatible view taken in other circuits.” 1100–01 (citing cases).
Ramirez confirmed existing law circuit and, turn, have confirmed holding Ramirez many cases. See, e.g. , Montes , 381 F.3d 637; United States v. Gal braith, 200 F.3d 1006, 1016 (7th Cir. 2000); United States v. Martinez , F.3d 860, (7th Cir. 2002). If, after evaluating defendant’s submission, finds statements proffer interview be “inconsistent,” “suspicious,” or “implausible,” entitled deny relief. United States v. Rebolledo Delgadillo F.3d 870, (7th Cir. 2016). Our more recent cases testify durability principle. See, e.g. United States v. Sand oval 464, (7th Cir. 2014). To prevail, must meet court’s misgivings even when those misgivings are based on relatively weak rebuttal Government, when those misgivings are grounded fac tual assertions admissible under Rules Evidence. 18 2149 11 Most decisions of our sister circuits are consonant our approach. Certainly, every circuit have consid ered matter has held, as we have, initial burden proof safety valve eligibility lies defendant. [11] Some also specifically rejected, have, any form burden shifting. See, e.g. , United States v. Aidoo , 670 F.3d 600, 607 (4th Cir. 2012) (noting “[t]he defendant’s burden under true burden proof rests, all times, defendant”). These circuits accept “the government has obligation present evidence de fendant’s failure satisfy requirements valve.” 606; see United States v. Alvarado Rivera, 412 F.3d 942, 947 (8th Cir. 2005) (en banc) (rejecting defendants’ argument burden present additional if finds proffer inade quate).
( continued) ically insufficient “to call into question veracity [the defendant’s] testimony” “the government does bear proof”).
[11] United States v. Bolton , 858 F.3d 905, 913 (4th Cir. 2017); United States v. Carillo Ayala , 713 F.3d 82, 90 (11th Cir. 2013); United States v. Jimenez , 451 F.3d 97, 101–03 (2d Cir. 2006); United States v. Mathis , 216 F.3d 18, 29 (D.C. Cir. 2000); United States v. Morones , 181 F.3d 888, 890 (8th Cir. 1999); United States v. Vasquez , 161 F.3d 909, 912 (5th Cir. 1998); United States v. Sabir , F.3d 750, (3d Cir. 1997); United States v. Verners F.3d 108, (10th Cir. 1996); United States v. Miran da Santiago F.3d 517, & n.25 (1st Cir. 1996); United States v. Ramirez 1095, (7th Cir. 1996); Ajugwo Cir. 1996); Adu (6th 1996). 18 2149
Other circuits seemingly indicated that the shifts the Government after the defendant’s initial eviden tiary showing. First Circuit initially took view in United States v. Miranda Santiago , F.3d (1st Cir. 1996), where it rejected as inadequate the Government’s statement that did “believe” defendant in her proffer. Id. 529. That court required Government must least come forward “some sound reason suggest” could be credited. n.25. This language in Miranda Santiago suggesting a formal obligation meet defendant’s case caused First Circuit delineate true import of its holding in subsequent cases. United States v. Marquez F.3d (1st Cir. 2002), explicitly described several scenarios belied a sweeping interpretation problematic lan guage earlier case. First, reiterated its earlier holding United States v. White F.3d (1st Cir. 1997), “court may reject a proffer based on its reasoned assessment credibility light facts—and may so without benefit independent rebuttal evidence.” Marquez “ Miranda–Santiago stands,” First Circuit continued, “merely proposition when record, taken whole, will support finding failed provide complete proffer, gov ernment’s lack confidence proffer insufficient, itself, justify denial access valve.” Id.; see Padilla Colón (1st Cir. 2009) (reaffirming Marquez court’s understanding Miranda Santiago ); Bravo (1st 2007) (“The court’s finding on eligibility must be ‘an independent determination,’ resting more than ‘bare ‐ conclusions.’” (citation omitted) (quoting White , F.3d at and Miranda ‐ Santiago , F.3d at 528)). Notably, both Pa ‐ dilla ‐ Colón Bravo also stress that, end, is dis ‐ trict court’s “reasoned determination, light facts on record” that must determine propriety granting safety ‐ valve reduction. Padilla ‐ Colón F.3d at 31; see also Bravo at 12. Miller 1999),
Fifth Circuit found support Miranda Santiago its prog ‐ eny unexceptional proposition that, evaluating safety valve proffer, court cannot de ‐ termine defendant has rendered complete statement based solely on speculation, devoid any factual support, suggested Government. concluded had erred failing apply safety valve based only on Government’s un supported assertion had “surely lied” when he told authorities he only recently learned how dry cocaine. Id. 967. argued previously trafficked co caine, could “glean[]” record familiar process drying cocaine. Id. After discussing Miranda Santiago Fifth Circuit rejected Government’s assertion “merely speculative,” thus, an insufficient basis which deny valve re lief. 968–69.
Similarly, Ninth Circuit has concluded once de fendant meets “initial burden” demonstrating eli gibility reduction, “it falls Gov ernment show supplied un true incomplete.” Shrestha *14 14 18 ‐ 2149 (9th Cir. 1996); see also United States v. Diaz ‐ Cardenas 351 F.3d 404, (9th Cir. 2003). [12] Read context, however, these cases stand for the proposition that, once a defendant makes a significant case, it is incumbent upon Government to rebut case if it does want defendant prevail. This so ‐ called “shifting” of burden Government simply means that, if is prevail face fact ‐ based submission by defendant, it must produce fact ‐ based rebuttal, rank speculation.
There doctrinal disagreement among circuits. A close examination these cases makes very clear authorities are compatible. No appeals questions fundamental proposition bears ulti mate burden proof establishing eligibility safe ty ‐ reduction. No circuit disputes can fail carry burden producing story so riddled inconsistencies implausibility the district court can ‐ not accept it. See, e.g. Montes 637. In such cases, the Government’s silence is immaterial. Some circuits simply taken the to emphasize when the defendant makes an initial submission appears credible com ‐ plete, Government cannot carry the day by simply telling district court it does believe or by inviting district indulge speculation. Government can hope rebut defendant’s credible showing only by giving district concrete, fact based rationale rejecting defendant’s case. It can by impeaching, court’s satisfaction, quality defendant’s submission or by introducing evi dence contrary. It cannot prevail, however, simply asserting its disbelief or its lack satisfaction. end, is court’s estimation submis sion, Government’s, counts.
B.
Confident our approach proof re sides comfortably among articulations our sister cir cuits there is substantive disagreement among circuits, proceed consider its application present case. Government does dispute pro
vided abundant information about his offense, cluding source other potential distributors. Rather, it argued that Mr. Collins’s ineligibility turned solely on whether he was respect his intentions $40,000 in cash he possessed when he was arrested. Government’s view, suggested that he lied when he told officers that he planned buy car, cocaine.
The court struggled issue, but concluded that Mr. carried his burden. The cited six facts considered in reaching its conclusion Mr. Collins’s explanation did “seem be reasonable.” noted generally dealt ounce quantities throughout term vestigation, he an amount cash approximate ly equal cost one kilogram dealers use cash. It discounted his explanation would be buying car, heading wrong direction there auction scheduled be held Clinton day his arrest.
Applying approach employed throughout United States, must conclude Collins’s sentence must be affirmed. understood ( continued)
Cf. United States v. Ortiz 964, 967–68 (7th Cir. 2015) (defendant gave limited post arrest statement, leaving “many facts [about offense] unknown”); Marin (7th Cir. 1998) (defendant “kept altering version events”); Thompson 1997) (defendants “contin ued cling false version events dispute their own culpabil ity”). R.60 establishing eligibility valve.
It weighed record statements before conclud ed established eligibility explanations were credible. This conclusion clearly erroneous. It difficult decision disputed facts. made hard call decided case according established law.
Conclusion judgment affirmed.
AFFIRMED
[1] R.31 (12:05–12:25 proffer video).
[2] R.59
[3] 35–36.
[4] R.60 at 3–4, 7–8.
[5] Id. 6–7.
[6] Id.
[7] 7–8.
[8] Id. 10.
[9]
[10] Alvarado Tizoc (7th Cir. 2011) (“The government’s strong, but didn’t be, there nothing other side say so … .”); Ponce 2004) (rejecting de fendant’s argument such non evidentiary presentations are categor (continued )
[12] District Columbia Circuit has articulated, albeit dicta, simi lar understanding Miranda Santiago United States v. Shrestha 935, Cir. 1996), respectively. Tate 194, (D.C. Cir. 2011) (citing Miranda Santiago favorably quoting it length); see Gales 54–55 (D.C. 2010) (holding neither Miranda Santiago nor Shrestha sup port altering burden proof defendant).
[13] As one commentator remarked, shifting Gov ernment regard can help “ensur[e] any challenges [a de fendant’s valve] eligibility stem actual untruthfulness their part, rather than simple government speculation govern ment’s dissatisfaction received.” Natasha Bronn, “Unlucky Enough Be Innocent”: Burden Shifting Fate Modern Drug Mule Under 3553(f) Statutory Safety Valve Colum. J.L. & Soc. Probs. (2013).
[14] Appellant’s Br. 16–17; Appellee’s Br. This little diffi culty affirming denial relief when opposite true— i.e. when provided only limited lied about or even denied involvement offense. (continued )