Appellant, Jose Patron-Montano, appeals the sentence he received for his role in a conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Patron-Montano pleaded guilty and sought a three-level decrease to his base offense level under the acceptance of responsibility provision found in § 3El.l(b) of the United States Sentencing Guidelines
I. FACTUAL BACKGROUND
Patron-Montano was the object of a drug investigation conducted by the Oklahoma City Police Department and the Drug Enforcement Agency. As part of this investigation, an undercover officer met with Patron-Montano and Norman Aguirre 1 on May 28, 1998. At this meeting, the undercover officer showed Patron-Montano and Aguirre $185,000 in cash and expressed an interest in purchasing ten kilograms of cocaine. Patron-Montano told the officer he was uncertain he could obtain ten kilos but believed he could obtain five kilos. Surveillance officers observed Patron-Montano and Aguirre leave the meeting, travel to a residence at 1413 Southwest 35th Street, use pay telephones at two businesses, travel to 2108 Southwest 66th Street, go to a restaurant, drive to a residence at 1549 Southwest 46th Street, use a pay telephone at a retail establishment, and finally arrive at the residence the two shared.
Later that day, Patron-Montano contacted a confidential source assisting the undercover officer and informed the source that he had obtained the five kilos of cocaine. Patron-Montano also expressed his desire that the transaction be conducted at his residence. The confidential source communicated this information to the undercover officer. The undercover officer, however, refused to meet at Patron-Mon-tano’s residence. A series of telephone calls ensued while the parties attempted to reach an agreement as to the location of the meeting. During one of these calls, Patron-Montano informed the undercover officer that the suppliers of the cocaine had arrived at his residence. Ultimately, however, the parties were unable to agree on a location to complete the sale of the cocaine. Patron-Montano eventually telephoned the undercover agent and informed him that the suppliers were angry and were leaving his residence.
During the course of the telephone conversations, surveillance officers observed a vehicle arrive at Patron-Montano’s residence. When the vehicle left, a marked police car followed it. A traffic step was initiated and officers conducted a search of the vehicle. During the search, officers found a semi-automatic pistol, two cellular telephones, a pager, an address book, and 3993 grams of cocaine. The driver of the vehicle was identified as Modesto Sicairos and the passenger as Ramon Aguilar. After surveillance officers observed Patron-Montano and Aguirre leave their residence, officers also stopped their vehicle. The officers obtained consent to search the residence and found marijuana, cocaine residue, and a sawed-off shotgun.
A four-count indictment was returned against Patron-Montano, Sicairos, Aguilar, and Aguirre. Patron-Montano was charged in Count 1 of the indictment with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Patron-Montano was not named in any of the remaining three counts. Patron-Montano pleaded guilty to the offense charged and a Presentenee Investigative Report (“PSR”) was prepared prior to his sentencing. In the original PSR, Patron-Montano’s total
Three witnesses were called at Patron-Montano’s sentencing hearing. The probation officer who prepared the PSR testified that the sole basis for not recommending the acceptance of responsibility decrease in the amended PSR was the government’s contention that Patron-Mon-tano had been untruthful in his statements about the extent of his co-conspirators’ involvement in the conspiracy. The probation officer further testified that he determined Patron-Montano was not eligible for the safety valve decrease based on the government’s statement that Patron-Mon-tano had not disclosed all information he knew relating to the conspiracy.
The second witness, the undercover officer, testified that Sicairos, Aguilar, Aguirre, and Patron-Montano had given conflicting statements to investigators after them arrest. The officer testified that in his statement, Patron-Montano claimed he had obtained the cocaine from an individual named Ernesto. Specifically, Patron-Montano maintained that he went to Aguilar’s residence to ask Aguilar if he knew anyone from whom he could obtain the cocaine and Aguilar reminded him of a potential supplier named Ernesto Garbo-nio. Patron-Montano then stated he contacted Garbonio who arranged to have Aguilar deliver the drugs to Patron-Mon-tano. The officer testified that he checked computerized police records but was unable to locate the individual implicated by Patron-Montano. The officer also checked Patron-Montano’s wallet but was unable to locate the telephone number for Garbonio that Patron-Montano claimed was in the wallet. The officer also testified that although Aguilar also implicated Garbonio in the conspiracy, no co-conspirator mentioned Garbonio’s name until months after they were arrested. The officer testified that after considering all the statements given by Patron-Montano and his co-conspirators, he believed that Sicairos was the source of the cocaine and that Patron-Montano lied when he claimed to have contacted someone named Ernesto Garbo-nio.
Aguirre also testified at Patron-Monta-no’s sentencing hearing. Aguirre testified that after he and Patron-Montano met with the undercover officer on the morning of May 28th, he drove Patron-Montano to Aguilar’s residence. Aguirre stated that Patron-Montano told Aguilar he needed some drugs and Aguilar told Patron-Mon-tano he would call him later. Aguirre testified that Patron-Montano gave Aguilar his pager number and then he and Patron-Montano left. Aguirre further testified that Aguilar and Sicairos later arrived at the residence he shared with Patron-Montano and that they brought the cocaine with them. The undercover officer had earlier testified that he believed Aguirre’s statement over those made by Patron-Montano, Sicairos, and Aguilar because Aguirre’s statement was most con
After listening to all the testimony including an audiotape of the interview Patron-Montano gave to investigators, the district court concluded that Patron-Mon-tano lied when he claimed he had contacted Garbonio to supply the drugs. Based solely on Patron-Montano’s lie about the source of the drugs, the district court overruled both of Patron-Montano’s objections to the amended PSR and sentenced Patron-Montano to ninety-seven months’ imprisonment and four years’ supervised release. Patron-Montano filed this appeal.
II. DISCUSSION
A. Standard of Review
In this appeal, Patron-Montano contends the district court erred when it concluded he lied about the source of the cocaine. Patron-Montano further contends that because he truthfully provided investigators with all information he had concerning the offense of conviction, the district court erred when it denied him the two-level safety valve decrease. PatronMontano also argues that the district court erroneously believed it was legally prohibited from granting him the three-level decrease for acceptance of responsibility because of the lie. This court reviews “the district court’s legal interpretation of the [sentencing] guidelines de novo and review[s] its findings of fact for clear error, giving due deference to the district court’s application of the guidelines to the facts.”
United States v. Janusz,
B. Safety Valve Provisions
Patron-Montano was sentenced under the 1998 version of the sentencing guidelines. Patron-Montano argues that he is eligible for a two-level decrease in his base offense level under U.S.S.G. § 2D1.1(b)(6) because he meets the criteria found in the “safety valve” provisions of U.S.S.G. § 5C1.2. U.S.S.G. § 2Dl.l(b)(6) states, “If the defendant meets the criteria set forth in subdivisions (l)-(5) of § 5C1.2 ... decrease by 2 levels.” The applicable criteria set forth in U.S.S.G. § 5C1.2 are as follows:
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and
(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.
U.S.S.G. § 5C1.2.
The government does not contest that Patron-Montano satisfied the first four criteria found in § 5C1.2 but argues only that Patron-Montano has failed to meet the fifth criterion because he lied about the source of the cocaine and, thus, necessarily lied about the involvement of a co-conspirator.
See United States v. Acosta-Olivas,
A defendant has the burden of demonstrating, by a preponderance of the evidence, that he qualifies for relief from a minimum mandatory sentence under the safety valve provisions of § 5C1.2.
See United States v. Verners,
The sole factual issue presented to the district court at sentencing was whether Patron-Montano lied when he identified Garbonio as the source of the cocaine. By overruling Patron-Montano’s objections to the PSR, the district court necessarily found that Patron-Montano had lied when he told investigators he had contacted Garbonio and arranged for Garbonio to supply the cocaine. A fair reading of Aguirre’s testimony at the sentencing hearing supports the conclusion that it was Aguilar, not Patron-Montano, who contacted the supplier.
See United States v. Jackson,
C. Acceptance of Responsibility
A defendant bears the burden of demonstrating he is entitled to the decrease for acceptance of responsibility under § 3E1.1 of the sentencing guidelines.
See United States v. Nelson,
Patron-Montano argues that a lie about the actions of a co-conspirator can never be considered by the district court when determining a defendant’s eligibility for the acceptance of responsibility decrease. Admittedly, a defendant’s failure to admit relevant conduct
beyond the offense of conviction
does not render him ineligible to receive the acceptance of responsibility decrease.
See United States v. Contreras,
Here, the lie told by Patron-Montano involved the identity of a participant in the conspiracy. Under the sentencing guidelines, Patron-Montano is accountable for any reasonably foreseeable acts committed by others “in furtherance of the jointly undertaken criminal activity.” Id. When a defendant falsely identifies a participant in the criminal activity, investigators are hindered or precluded from determining all acts committed in furtherance of the jointly undertaken criminal activity. Common sense, therefore, dictates that Patron-Montano’s false identification of the source of the cocaine necessarily constitutes a lie about relevant conduct. 5
The district court made the following statement at the sentencing hearing when it denied the § 3E1.1 decrease:
The Court finds that the points that are being claimed by the defendant; that is, the three points for acceptance of responsibility and the two points under 5C1.2 are based upon the same information, that they cannot be separated. That it would be inconsistent for this Court to say that this defendant did not accept responsibility and then on the other hand to say that he should get the two-point reduction for the safety valve because of subsection 5 of 5C1.2.
III. CONCLUSION
The district court’s denial of the three-level decrease for acceptance of responsibility under U.S.S.G. § 3E1.1, and the court’s denial of the two-level decrease under the safety valve provisions of U.S.S.G. §§ 2Dl.l(b)(6) and 5C1.2 are affirmed.
Notes
. This court notes that Aguirre's name is spelled “Aquirre” in several places in the record. We refer to him as "Aguirre” throughout this opinion.
. The statutory mandatory minimum sentence in this case was less than the sentence calculated under the sentencing guidelines. If the statutory mandatory minimum sentence had been greater than the minimum sentence under the guidelines, the district court also would be relieved from imposing the statutory mandatory minimum if it had determined Patron-Montano met the five criteria set out in U.S.S.G. § 5C1.2. See 18 U.S.C. § 3553(0; U.S.S.G. § 5C1.2.
. The government does not argue that Patron-Montano was required to voluntarily provide information about his co-conspirators to qualify for the acceptance of responsibility decrease. That issue, therefore, is not before this court. The government, in fact, maintains that Patron-Montano could have remained silent with respect to his co-conspirators' participation in the charged offense without affecting his eligibility for the acceptance of responsibility decrease.
. Specifically, the application notes to the sentencing guidelines provide that a defendant can show his eligibility for the acceptance of responsibility decrease by
truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § IB 1.3 (Relevant Conduct). Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under [§ 3E1.1], A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.
U.S.S.G. § 3E1.1, comment, (n.l).
. At the sentencing hearing, the government contended Sicairos was the source of the cocaine. In reaching its conclusion that Patron-Montano lied when he claimed Ernesto Garbonio supplied the cocaine, the district court necessarily agreed with the government's position. Although nothing in the record indicates Patron-Montano denied that Sicairos was involved in the conspiracy, Patron-Montano’s lie about the source of the cocaine, nonetheless, constitutes a lie about relevant conduct.