USCA1 Opinion

[Not for Publication]

United States Court of Appeals
For the First Circuit
____________________

No. 96-1312

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

REYNALDO GONZALEZ-VEGA,

Defendant, Appellant.

No. 96-1313

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

SANTOS OTERO-ROLON,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Coffin, Senior Circuit Judge,
____________________

and Stahl, Circuit Judge.

_____________

____________________

Luis Rafael Rivera,

___________________

by Appointment

of the

Court, for appell

Reynaldo Gonzalez-Vega.
Miguel A.A. Nogueras-Castro, by
____________________________

Appointment of

the Court,

whom

Benicio Sanchez-River, Federal

______________________

Public

Vazquez-Alvarez, Assistant Federal Public

_______________

Defender

and Carol
______

Defender, were on brief

appellant Santos Otero-Rolon.

Jacabed Rodriguez Coss,
_______________________
whom

Guillermo Gil, United

______________

Assistant United
States

Attorney,

States Attorney,

and Jose A. Quil

______________

Assistant United States Attorney, were on brief for appellee.

____________________

MAY 1, 1997
____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

Defendants-appellants

Reynaldo Gonzalez-Vega and Santos Otero-Rolon

to

one

count

of aiding

possession, with intent to

and

abetting

At sentencing, the

defendant

the

statutory

other in

the

distribute, of three kilograms of

cocaine, in violation of 21 U.S.C.

2.

each

pleaded guilty

841(a)(1), and 18 U.S.C.

district court

imposed upon

minimum

of

term

sixty

each

months'

imprisonment.

See 21 U.S.C.
___

841(b)(1)(B).

They now appeal

the

court's finding that they failed to meet the criteria of

the

"safety

valve"

minimum sentences.

5C1.2.

provision

See
___

Finding no

for

18 U.S.C.

relief

from

mandatory

3553(f)(1)-(5); U.S.S.G.

clear error in

the court's sentencing

determination, we affirm.

I.
I.
__

Pertinent Facts and Prior Proceedings

Pertinent Facts and Prior Proceedings
_____________________________________

The

to

which the parties agreed

are as follows.

Hato

facts as set forth

in the plea agreement, and

at the change

of plea hearing,

On August 21, 1995, postal employees at

Rey Post Office in

San Juan, Puerto

the

Rico, noticed two

suspicious Express

York.

Upon investigation, both return

to be nonexistent.

detected

packages.

packages

Mail parcels addressed to

the

Rochester, New

addresses were found

In addition, a U.S. Customs

presence of

controlled

Canine Unit

substance in

both

Pursuant to a search warrant, the contents of the

were field

tested

and determined

-22

to be

cocaine.

Postal

agents forwarded

Rochester,

New

York

one

for

package ("package

a controlled

No. 1")

delivery.

to

Postal

inspectors retained the other package ("package No. 2") for a

possible "reverse delivery."

Surprisingly, three days later

to effectuate the reverse delivery.

copy of the Express

package No.

Otero-Rolon decided

Armed with

Mail receipt, he claimed and

2, which the authorities

contained approximately three kilograms

the customer

signed for

had already determined

of cocaine.

At that

time, a postal inspector surveilling the customer parking lot

outside

the post

the facility's

office noticed Gonzalez-Vega

exit doors.

Gonzalez-Vega then

loitering at

entered the

post office

and made eye contact with

later, both men exited

Otero-Rolon.

with package No. 2.

Moments

Agents arrested

the two men and subsequently charged them with respect to the

drugs

in

that

package.

Gonzalez-Vega as

the

Post

person who

office

clerks

mailed package

identified

No. 1

and

Otero-Rolon as the person who mailed package No. 2.

Thereafter, both men pleaded

plea

agreement in

which the

sentencing recommendations,

of 28 under

their

U.S.S.G.

mitigating roles

three level reduction for

plea

guilty pursuant to

parties stipulated

including: a base

2D1.1, a three

in

the offense,

to various

offense level

level reduction

and an

for

additional

acceptance of responsibility.

agreement acknowledged

possible further relief

The

if the

-33

defendants met

provision.

the criteria contained in

See 18 U.S.C.
___

the "safety valve"

3553(f)(1)-(5); U.S.S.G.

5C1.2.

At the sentencing hearing, the district court found

the

stipulated base

offense level and

applicable to the defendants.

downward adjustments

The court determined, however,

that

neither

Gonzalez-Vega

provided

the

government

offense,

as

required

Consequently,

any relief

nor

all

by

Otero-Rolon

information

18

the court declined

truthfully

concerning

U.S.C.

the

3553(f)(5).

to afford either defendant

from the statutory minimum

term of imprisonment.

This appeal ensued.

II.
II.
___

Discussion
Discussion
__________

Gonzalez-Vega

district

and

Otero-Rolon

court clearly erred in finding

meet the five

argue

that

the

that they failed to

criteria listed in the safety valve provision.

That provision, if applicable, requires a sentencing court to

disregard the statutorily

imposed mandatory minimum sentence

and impose

sentence pursuant

See 18 U.S.C.
___

men met

3553(f).

the first

3553(f)(1)-(4).

requires

Government all
___

the criteria.

dispute is

defendant

Guidelines.

The government concedes

four of

In

to the Sentencing

to

the fifth

"truthfully
__________

information and evidence

-44

See 18
___

that both

U.S.C.

criterion, which

provide[]

to

the defendant

the

has"

regarding

the

offense.

18

U.S.C.

3553(f)(5) (emphasis

added).1

In order

defendant

to qualify

must persuade the court

requirements.

See United States

___ _____________

523 (1st Cir. 1996).

court's

for safety valve

factual

We review

determinations

whether a defendant is

relief, the

that he meets

all of the

v. Montanez, 82
________

F.3d 520,

for clear error the district

underlying

the

entitled to such relief.

question

See United
___ ______

States v. Miranda-Santiago, 96 F.3d 517, 527 (1st Cir. 1996).

______
________________

"Where

there

is

circumstances,

supportable

more

the

than

one

sentencing

alternatives

cannot

plausible

court's

be

view

of

choice

clearly

the

among

erroneous."

United States v. D'Andrea, 107 F.3d 949, 958 (1st Cir. 1997).
_____________
________

Previously, we have found clear error in the denial

of safety

valve relief where

"the government did

____________________

1.

In full, the fifth criterion requires that

not later than the time of the sentencing

hearing,

the

provided

to

information
has

defendant

and

concerning

that were

part

conduct or
but the

the

has

truthfully

Government

evidence the
the offense
of the

of a

relevant or useful

defendant
or offenses

same

common scheme

fact that the

all

course

of

or plan,

defendant has

no

other information

to

not rebut

provide or that the Government is already

aware

of

preclude

the
a

information

determination

shall
by the

not
court

that the defendant has complied with this

requirement.

18 U.S.C.

3553(f)(5).

-55

[defendant's]

facially plausible tale of limited involvement

by pointing to information

[the] defendant must have known."

Miranda-Santiago, 96 F.3d at 529.

________________

"bare

conclusion"

that the

within the meaning of

such a

finding "absent

Thus, a sentencing court's

defendant

failed to

3553(f)(5) is insufficient to support

either specific factual

easily recognizable support in the record."

We

consider

cooperate

the facts

findings or

Id.
___

and legal

challenges with

respect to each defendant in turn.

A. Otero-Rolon
_______________

At his

agreement,

identified

change

Otero-Rolon

him

as having

of plea

hearing

admitted

that

mailed package

before the sentencing hearing,

the

government, he denied that

and in

No.

his

postal

2.

plea

clerk

The day

however, at a debriefing with

he mailed the

package.

The

court found the later denial incredible and concluded that it

created

the

concerning the

and

likelihood

of

an

absence

of

information

identity of the person who supplied the drugs

other particulars

surrounding the

package.

Presented

with Otero-Rolon's recantation, the resulting factual vacuum,

and other

district

inconsistencies in his informative

court

found that

Otero-Rolon

did

proffers,2 the

not truthfully

____________________

2.
that

For

example, Otero-Rolon originally

Gonzalez-Vega

package, then
upon

asked him

later stated

to pick

told the government

up the

that an acquaintance

Express Mail
he chanced

at a shopping mall hired the two defendants to retrieve

the parcel.

-66

provide all information to

of

3553(f)(5).

See United States v. Wrenn, 66

___ ______________
_____

(1st Cir. 1995) (explaining

"all"

the government within the meaning

information regarding

F.3d 1, 3

that defendant failed to provide

convicted offense

where, after

claiming to have numerous drug customers, defendant "supplied

nary a name to the government").

Unlike

the

sentencing court

in Miranda-Santiago,
________________

here, the court

for concluding

identified specific and supportable

that

Otero-Rolon was

nor

forthcoming

Furthermore,

contrary to the defendant's proffer in Miranda________

rendered

face.

in

the

Otero-Rolon's later

his inexplicit

final

providing

truthful

completely

Santiago,
________

in

neither

reasons

denials and

version

information.

new explanations

implausible on

its

While the court could have found that Otero-Rolon had,

end,

provided

the government

with

all

pertinent

information he had, its rejection of that conclusion reflects

a readily plausible view of the evidence.

no

clear error

in

the court's

Otero-Rolon did not meet the fifth

valve provision.3

Therefore, we find

factual determination

that

requirement of the safety

____________________

3.

Otero-Rolon suggests

the opportunity
his sentencing
court queried
version
the

to provide
hearing.

court denied him

further relevant
He

also intimates

him, it would

shows

asked

information
submissions.

otherwise.

Otero-Rolon

information at
that, had

have found credible

of the facts surrounding the offense.

record

directly

that the district

At
whether

the

his latest

Our review of

hearing, the
or

not

the

he

had

court
any

to present other than that found in his previous

Otero-Rolon replied that he did not.

-77

The fact

B. Gonzalez-Vega
_________________

Like

Otero-Rolon,

Gonzalez-Vega

asserts that

he

truthfully disclosed all information that he might reasonably

have been expected to possess.

contention that

however,

copies of

is

the court's findings were clearly erroneous,

severely hindered

the sentencing

App. P. 10(b)(2)

when

by

his

failure to

hearing transcript.

insufficiency).

finding

We have

raises

on the

R.

transcript

of

evidentiary

repeatedly held that,

"[w]here an

issues that

are

basis

provide

See Fed.
___

(requiring appellant to provide

challenging

appellant

Our review of Gonzalez-Vega's

factually dependant

yet

fails to provide a transcript of the pertinent proceedings in

the

district

court,

we

will

not

review

the

allegations."

F.2d

1357,

Muniz Ramirez v.
_____________

1358

(1st

Cir.

Puerto Rico Fire Servs., 757

_______________________

1985);

Springfield Terminal Ry. Co., 5

_____________________________

Batistini v. Aquino, 890

_________
______

see
___

F.3d 1, 5

also
____

Plummer
_______

v.

(1st Cir. 1993);

F.2d 535, 539 (1st Cir. 1989).

We

see no reason to depart from that rule in this case.

We do note, however, that both the government's and

Gonzalez-Vega's appellate briefs indicate

not only told materially

offense, he may have

On

the record

before

that Gonzalez-Vega

inconsistent stories concerning the

purposely withheld information as well.

us, we

can

only conclude

that

the

____________________

that the court did not find his final story truthful does not

mean that

the court deprived Otero-Rolon

of the opportunity

to render that account.

-88

sentencing

court's

satisfy section

finding

3553(f)(5)

that

Gonzalez-Vega

was reasonable

evidence before it.4

III.
III.
____

failed

considering

to

the

Conclusion
Conclusion
__________

For the

the

reasons stated above, we

district court's

entitled

Affirmed.
Affirmed.
________

to

relief

finding that

under

the

will not disturb

the defendants

safety

valve

were not

provision.

____________________

4.

At oral argument before this court, Gonzalez-Vega claimed

that the
of

district court erroneously denied

the safety

withheld from
the charged

valve

provision because

him the benefits

the information

the government concerned conduct

offense.

See
___

Wrenn 66 F.3d at
_____

he

unrelated to

3 (declining to

define the scope of the phrase "offense or offenses that were

part

of the same course of conduct

or of a common scheme or

plan" within the meaning of 18 U.S.C.

not

consider

argument

this

unpreserved contention,

for the first

Ruiz, 47 F.3d
____
Gonzalez-Vega's

3553(f)(5)).

452, 455

time.

furnish a

1995).

Furthermore,

sentencing transcript

thwarts any meaningful analysis of this issue.

-99

at oral

See United States v. De Leon

___ ______________
_______

n.1 (1st Cir.

failure to

raised

We will