United States v. Altamirano-Quintero

Defendant-Appellant Luis Altamirano-Quintero appeals the district court’s imposition of a statutory mandatory minimum ten-year sentence for his drug conspiracy conviction. Altamirano-Quintero asserts *1089that the district court should have applied 18 U.S.C. § 3553(f)’s safety valve to impose a sentence less than the mandatory minimum. The district court, however, determined that Altamirano-Quintero was not eligible for the safety valve because he had not provided the Government with all the information he had concerning his offense. That determination was not in error. Having jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we therefore AFFIRM.

I. BACKGROUND

Law enforcement officials found over 670 grams of a substance containing methamphetamine in Altamirano-Quintero’s car. As a result, he and a companion, his co-defendant, were arrested for drug trafficking. Altamirano-Quintero pled guilty to one count of conspiring to possess, with the intent to distribute, 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, in exchange for the Government’s agreement to drop a second charge.1 Altamirano-Quintero faced a statutory mandatory minimum ten-year sentence for this conviction. See 21 U.S.C. § 841(b)(l)(A)(viii).2

Altamirano-Quintero had two means available to him to avoid that mandatory minimum ten-year sentence. First, his plea agreement anticipated that he would be debriefed by, and would cooperate with, the Government. If, as a result, he provided the Government with “substantial assistance,” then the Government agreed to move, under U.S.S.G. § 5K1.13 and 18 *1090U.S.C. § 3553(e),4 for a downward departure at sentencing. Such a motion would have enabled the court to impose a sentence below the mandatory minimum ten-year sentence, see 18 U.S.C. § 3553(e), and below the advisory guideline range, see U.S.S.G. § 5K1.1. See United States v. Belt, 89 F.3d 710, 714 n. 5 (10th Cir.1996).

Second, Altamirano-Quintero could qualify for the statutory safety valve that 18 U.S.C. § 3553(f) provides from mandatory minimum sentencing. Section 3553(f) permits the district court to disregard a statutory mandatory minimum sentence and instead impose a sentence within the advisory sentencing guidelines range, if the defendant meets five criteria.5 The only one of those criteria at issue in this case is § 3553(f)(5)’s requirement that Al-tamirano-Quintero “truthfully provide[ ] to the Government all information and evidence [he] ha[d] concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.”6 18 U.S.C. § 3553(f)(5).

*1091After he pled guilty, Altamirano-Quinte-ro decided not to be debriefed by the Government. At sentencing, therefore, the Government did not make any motion under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. Defense counsel acknowledged that the Government’s decision not to make such a motion was warranted under the circumstances. Nevertheless, counsel argued that Altamirano-Quintero still qualified for the safety valve under 18 U.S.C. § 3553(f), based upon the facts Al-tamirano-Quintero had admitted in his plea agreement.

The district court, however, found that Altamirano-Quintero was not eligible for the safety valve:

Paragraph 5 of subsection F of Section 3553 provides in relevant part as follows, and I quote, “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.”

On this record, that fifth requirement has not been satisfied by the defendant, *1092and therefore, the defendant is not entitled to safety valve relief under 18 U.S.C. Section 3553(f), and therefore the defendant’s request for downward departure for a sentence below the statutory minimum should be denied.

The court then sentenced Altamirano-Quintero to the statutory mandatory minimum 120 months’ imprisonment.

II. DISCUSSION

On appeal, Altamirano-Quintero challenges only the district court’s imposition of the mandatory minimum ten-year sentence, arguing that the district court erred in finding him ineligible for the safety valve. In support of that contention, he asserts three arguments, which are addressed below.

A. Whether the district court erred as a matter of law in concluding Alta-mirano-Quintero was not eligible for the safety valve solely because he was not debriefed by the Government.

Altamirano-Quintero first argues that the district court incorrectly held, as a matter of law, that the safety valve provision required, that he submit to a Government debriefing. This court reviews de novo the district court’s statutory interpretation of the safety-valve provision. See United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir.2006).

Both Altamirano-Quintero and the Government agree that § 3553(f)(5) does not specifically require that a defendant undergo a government debriefing.7 See also United States v. Montanez, 82 F.3d 520, 522-23 (1st Cir.1996) (drawing this same conclusion). But in this case, the district court did not hold that § 3553(f) required such a debriefing.

At sentencing, the district court first addressed whether the Government would file a motion under U.S.S.G. § 5K1.1. The court specifically noted that

[i]n the Plea Agreement and Stipulation of Facts Relevant to Sentencing, ... the parties acknowledged that the defendant had expressed the intent to cooperate with the office of the United States Attorney for the District of Colorado by providing testimony, documents, and other information known to the defendant about the criminal wrongdoing of other persons.

The defendant in his plea agreement agreed that he shall cooperate fully with the government in the ways described in that plea agreement....

In that same plea agreement, the government reserved the sole right to evaluate the nature and extent of the cooperation if any of the defendant, and to *1093make the cooperation of the defendant, if any, known to the court at the time of sentencing.

At the time of the plea agreement, the defendant had not been debriefed. At that time, the parties stipulated that the defendant would submit to a proffer or interview by agents of the federal government between the date of the entry of the plea in June 2005, and the first [scheduled] sentencing hearing in September of 2005.

Due to actions of the defendant, that debriefing and that proffer did not occur. Had the defendant cooperated completely, had the defendant submitted to the debriefing and proffer included in the plea agreement, the government anticipated filing a motion under guideline Section 5K1.1, and the provisions of 18 U.S.C. § 3553(e), requesting a downward departure for substantial assistance.

Because the defendant breached that portion of his plea agreement, the government has not filed any such motion. And there is no request to depart downward from the guideline range based on substantial assistance.

The district court then immediately, but separately, turned to the question of whether Altamirano-Quintero was eligible for the 18 U.S.C. § 3553(f) safety valve.

The defendant requests that he be afforded the benefits of the so-called safety valve, which implicates 18 U.S.C. Section 3553(f). In turn, subsection (f) of Section 3553 has five components. No. 5 is at issue ... in the context of the request by the defendant.

Paragraph 5 of subsection F of Section 3553 provides in relevant part as follows, and I quote, “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.”

On this record, that fifth requirement has not been satisfied by the defendant, and therefore, the defendant is not entitled to safety valve relief under 18 U.S.C. Section 3553(f), and therefore the defendant’s request for downward departure for a sentence below the statutory minimum should be denied.

Contrary to Altamirano-Quintero’s argument on appeal, the district court did not specifically hold that § 3553(f)(5), as a matter of law, requires a debriefing. Therefore, the district court did not, as a factual matter, commit the error asserted by Altamirano-Quintero of requiring a debriefing with the Government before Alta-mirano-Quintero could qualify for the § 3553(f) safety valve.

B. Whether the Government conceded in the plea agreement that Altami-rano-Quintero had already complied with § 3553(0(5) based upon the facts he admitted in the plea agreement.

Altamirano-Quintero next argues that the Government stipulated, in the plea agreement, that he had, at the time he pled guilty, already complied with § 3553(f)(5)’s requirement that he truthfully disclose all the information that he had regarding his offense. We disagree.

This court reviews the terms of the plea agreement de novo.8 See United *1094States v. Rodriguez-Delma, 456 F.3d 1246, 1250 (10th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 1338, 167 L.Ed.2d 134 (2007). In interpreting a plea agreement, we apply “[gjeneral principles of contract law ..., looking to the [agreement’s] express language and construing any ambiguities against the government as the drafter of the agreement.” Id. at 1250-51 (quotation omitted); see also United States v. Burner, 134 F.3d 1000, 1003 (10th Cir.1998). “The plea agreement must be construed according to what [the] defendant reasonably understood at the time he made the agreement.” United States v. Prince, 204 F.3d 1021, 1023 (10th Cir.2000).

The plea agreement Altamirano-Quinte-ro had with the Government contained five sections.9 The first section stated the “Plea Agreement”; the second set forth the statutory penalties that Altamirano-Quintero faced by pleading guilty to the drug conspiracy count; the third set forth the parties’ “Stipulation to Relevant Facts” underlying Altamirano-Quintero’s guilty plea; and the fourth section estimated how the guidelines might apply, predicting Al-tamirano-Quintero would be subject to an advisory sentencing range of between 87 and 108 months, were he not subject to the statutory mandatory minimum ten-year sentence. The plea agreement’s fifth and final section was entitled “Why the Proposed Plea Disposition is Appropriate.” In the first paragraph of that two-paragraph section,10 the plea agreement stated:

The parties believe that the sentencing range resulting from the plea agreement is appropriate because all relevant conduct is disclosed; that the stipulated facts by the parties take into account all pertinent sentencing factors with respect to this defendant; and that the charge to which the defendant has agreed to plead guilty adequately reflects the seriousness of the actual offense behavior.

(Emphasis added.)

Based upon this language in the last section, Altamirano-Quintero argues on appeal that the Government conceded in the plea agreement that he had already satisfied § 3553(f)(5)’s requirement that he “truthfully providef] to the Government all information and evidence [he] has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” We reject Alta-mirano-Quintero’s interpretation of the plea agreement.

The paragraph in the plea agreement on which Altamirano-Quintero relies does not address 18 U.S.C. § 3553(f) at all, but instead clearly concerns the application of the sentencing guidelines to Altamirano-Quintero.11 This is logical because this *1095fifth section of the plea agreement immediately follows the fourth section’s estimation of the advisory sentencing range to which Altamirano-Quintero would be subject.

Moreover, the particular phrases in the agreement to which Altamirano-Quintero cites in support of his interpretation&emdash; “[t]he parties believe that the sentencing range resulting from the proposed plea agreement is appropriate because all relevant conduct is disclosed” and “the stipulated facts by the parties take into account all pertinent sentencing factors with respect to this defendant”&emdash;directly concern the “relevant conduct” on which the sentencing guidelines calculate an advisory sentencing range. See U.S.S.G. § 1B1.3. More specifically, the guidelines calculate a defendant’s offense level based on his “relevant conduct,” which in pertinent part, includes the following:

Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,

that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for the offense;

(3) all harm that resulted from the acts and omissions specified in subsection[ ](a)(l) ... above, and all harm that was the object of such acts and omissions; and

(4) any other information specified in the applicable guideline.

U.S.S.G. § 1B1.3.

Relevant conduct for sentencing purposes, therefore, “comprises more, often much more, than the offense of conviction itself, and may include uncharged and even acquitted conduct.” United States v. Allen, 488 F.3d 1244, 1254-55 (10th Cir.2007). This relevant conduct, however, still “must relate to the offense of conviction.” Id. at 1255. And where, as here, the offense of conviction involves criminal activity undertaken jointly with others, the relevant conduct includes “ ‘all reasonably foreseeable acts and omissions of others in *1096furtherance of the jointly undertaken criminal activity.’ ” Stephenson, 452 F.3d at 1180 (quoting U.S.S.G. § lB1.3(a)(l)(B)).

Courts addressing the requirements for a defendant to meet the safety valve under 18 U.S.C. § 3553(f) have incorporated the sentencing guidelines’ concept of relevant conduct. See Stephenson, 452 F.3d at 1180; see also Virgen-Chavarin, 350 F.3d at 1130. Thus, this court has held that § 3553(f)’s requirement that a defendant “provide ... the Government [with] 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,” 18 U.S.C. § 3553(f)(5), “is defined as ‘the offense of conviction and all relevant conduct,’ ” Stephenson, 452 F.3d at 1180 (quoting U.S.S.G. § 5C1.2, cmt. n. 3); see also Virgen-Chavarin, 350 F.3d at 1130. Thus, the offense of conviction and the related relevant conduct establish the parameters of the criminal activity about which a defendant must give the Government all the information he has in order to qualify for the safety valve under 18 U.S.C. § 3553(f). See Stephenson, 452 F.3d at 1180; Virgen-Chavarin, 350 F.3d at 1129-30; Acosta-Olivas, 71 F.3d at 377-78; see also United States v. Sanchez, 475 F.3d 978, 981 (8th Cir.2007); United States v. Montes, 381 F.3d 631, 635-36 (7th Cir.2004); United States v. Johnson, 375 F.3d 1300, 1302-03 (11th Cir.2004) (per curiam); United States v. Salgado, 250 F.3d 438, 459 (6th Cir.2001); United States v. Cruz, 156 F.3d 366, 371 (2d Cir.1998); United States v. Miller, 151 F.3d 957, 958, 959-61 (9th Cir.1998); United States v. Sabir, 117 F.3d 750, 753 (3d Cir.1997).

The plea agreement’s indication in this case that “all relevant conduct” has been disclosed sets the parameters for the criminal activity about which the safety valve required Altamirano-Quintero to give the Government all the information he had. But this language in the plea agreement did not further indicate that Altamirano-Quintero had already provided the Government with that information. Cf. Stephenson, 452 F.3d at 1180-81 (noting the relevant conduct about which the defendant was required to inform the Government, in order to qualify for the safety valve, included the drug trafficking the defendant undertook jointly with co-conspirators, but upholding the district court’s factual finding that the defendant had failed to give the Government all of the information he had about that jointly undertaken conduct).

Our conclusion here is bolstered by two facts. First, and most telling, this paragraph in the plea agreement makes no reference at all to 18 U.S.C. § 3553(f). In fact, the plea agreement as a whole makes only two fleeting references to 18 U.S.C. § 3553(f)’s safety valve, and those references are not made in connection with the language on which Altamirano-Quintero relies here. In the plea agreement’s fourth section, in which the parties estimated the advisory guideline range that would apply to Altamirano-Quintero, if he were not subject to the statutory mandatory minimum ten-year sentence, the plea agreement notes that, if Altamirano-Quintero “is otherwise eligible, the Government would stipulate to a ... 2-level ‘safety-valve’ reduction” in his offense level available under the guidelines. Later in that same fourth section, the plea agreement notes that, “because the offense of conviction in this case involve[s] 500 grams or more of a mixture and substance containing methamphetamine, the mandatory minimum sentence of 120 months is applicable to this defendant unless the defendant is eligible for the ‘safety valve’ reduction set forth above.” Those are the only references in the plea agreement to § 3553(f), and they do not suggest that the Government was conceding that Altamira-*1097no-Quintero had already satisfied the safety valve’s requirement that he “truthfully provide[] to the Government all information and evidence [he] has concerning” his offense. 18 U.S.C. § 3553(f)(5); cf. United States v. Reyes Pena, 216 F.3d 1204, 1211-12 (10th Cir.2000) (rejecting argument that Government had promised not to seek the application of a specific enhancement to the defendant’s offense level where the plea agreement never mentioned that specific enhancement); United States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199 (10th Cir.1997) (noting that the Government’s obligations under plea agreement “do not issue from mere silence”); Cunningham v. Diesslin, 92 F.3d 1054, 1059 (10th Cir.1996) (rejecting defendant’s argument that the plea agreement entitled him to mandatory parole because “application of mandatory parole to [his] sentence is neither an explicit nor an implicit part of the plea offer”).

Second, the language in the plea agreement on which Altamirano-Quintero relies is standard language prescribed by the local rule. See D.C.COLO.LCrR 11.1(C) and App. J. Of course, including this language in the plea agreement binds the parties to that agreement. But relying on the express language of the agreement, see Rodriguez-Delma, 456 F.3d at 1250-51, we cannot conclude that the Government, by using this standard language, meant to concede in every case that the defendant has satisfied the safety valve’s § 3553(f)(5)’s disclosure requirement.

Nor can we conclude that Altamirano-Quintero could have “reasonably understood” the plea agreement to include such a government concession. Instead, the plea agreement clearly contemplates that there would be additional information that the court would consider at sentencing:

With the exception of the stipulated facts set forth above, this statement of facts does not preclude either party from presenting and arguing, for sentencing purposes, additional facts or evidence which a party believes is relevant to sentencing. Further, the Court is not bound by the factual stipulations of the parties. In determining the factual basis for the sentence, the Court may consider not only the stipulations of the parties, but also the results of any pre-sentencing investigation that may be conducted by the U.S. Probation Department, together with any other relevant information that may be brought to the Court’s attention.

This language, then, in no way establishes that the parties believed that Altamirano-Quintero had already fully disclosed all of the information he had for § 3553(f) purposes.

For these reasons, we conclude that the language contained in the plea agreement’s fifth section does not amount to a Government concession that Altamirano-Quintero had already complied with 18 U.S.C. § 3553(f) at the time he pled guilty. Nor could Altamirano-Quintero, at the time he entered into the agreement, have reasonably understood this language to mean that he had already met § 3553(f)(5)’s requirements. Therefore, Altamirano-Quintero’s interpretation of the plea agreement, as he asserts it now on appeal, is not reasonable. See Prince, 204 F.3d at 1023 (rejecting defendant’s interpretation because it was not reasonable); cf. United States v. Brye, 146 F.3d 1207, 1211 (10th Cir.1998) (declining to give plea agreement “nonsensical” interpretation).

C. Whether the district court clearly erred in finding that Altamirano-Quintero was not eligible for safety-valve relief because he had not disclosed to the Government all of the information he had concerning his offense.

Lastly, Altamirano-Quintero asserts that the district court’s finding that *1098he did not qualify for § 3553(f)’s safety valve was clearly erroneous. The district court found that Altamirano-Quintero did not qualify because he had not truthfully disclosed all the information he had concerning his offense.

This court reviews the district court’s determination of a defendant’s eligibility for the safety valve for clear error. See Stephenson, 452 F.3d at 1180; see also United States v. Payton, 405 F.3d 1168, 1170-71 (10th Cir.2005) (noting this remains the standard even after Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621). The specific question posed by § 3553(f)(5), whether or not a defendant has provided the Government with truthful and complete information, is also a factual determination reviewed for clear error. See Gama-Bastidas, 142 F.3d at 1241-43. In conducting this clear-error review, “we are cognizant that the district court’s application of the safety valve is fact specific and dependent on credibility determinations that cannot be replicated with the same accuracy on appeal.” Stephenson, 452 F.3d at 1180 (quotation, alteration omitted). It was Altamirano-Quintero’s burden to prove, by a preponderance of the evidence, that he did truthfully provide the Government with all the information he had.12 See id. at 1179.

At sentencing, the district court had before it the facts to which the parties stipulated in the plea agreement. Altami-rano-Quintero argues that, because there is no indication that those facts are untruthful, they are sufficient to satisfy his burden under § 3553(f)(5). A defendant’s disclosure, however, “must not merely be truthful but also complete.” Stephenson, 452 F.3d at 1180 (quotation omitted).

Here, there are obvious informational gaps in the facts Altamirano-Quintero admitted when he pled guilty. Altamirano-Quintero admitted that he had “670.2 grams of a mixture” containing methamphetamine in his car, which he had driven from California to Denver with a co-defendant. But Altamirano-Quintero does not indicate how or where he got the methamphetamine, or what he intended to do with it. See Montanez, 82 F.3d at 523 (affirming district court’s finding that the defendant was not eligible for safety-valve relief on the basis of a similar gap in information).

More to the point, this court, on several previous occasions, has held that where, as here, a defendant pleads guilty to conspiring with his co-defendant “and with other persons, known and unknown to the Grand Jury,” the defendant does not comply with § 3553(f)(5) without identifying the other participants in the conspiracy, or at least explaining why he is unable to identify those other participants. See Stephenson, 452 F.3d at 1180-81 (holding that, “[w]hen the offense involves conspiracy or a jointly undertaken criminal venture, we require the defendant to disclose not only everything he knows about his own actions, but also everything he knows about his co-conspirators”); Virgen-Chavarin, 350 F.3d at 1130 (same); Acosta-Olivas, 71 F.3d at 377-78 (same).

In this case, Altamirano-Quintero has never identified any of the other participants in the charged drug conspiracy. Nor does he explain why he could not do so. See Stephenson, 452 F.3d at 1180-81 (upholding denial of safety-valve relief where it appeared “highly unlikely” that the defendant “did not know the identities of those individuals who were involved in *1099assisting” him and his named co-defendant as part of a drug trafficking conspiracy).

In addition, in this case, Altamirano-Quintero indicated in the plea agreement that he intended to cooperate with the Government and to provide “substantial assistance.” This further suggests that Altamirano-Quintero had additional information to disclose and bolsters the record’s already sufficient suggestion that he has failed to disclose all the information he had. For these reasons, the record before the district court was sufficient to support the district court’s finding that Altamira-no-Quintero had failed to prove by a preponderance of the evidence that he had made a complete and truthful disclosure to the Government of all the information he had concerning his offense.13 That factual finding, therefore, was not clearly erroneous. See Virgen-Chavarin, 350 F.3d at 1130.

III. CONCLUSION

For the foregoing reasons, this court AFFIRMS Altamirano-Quintero’s statutory mandatory minimum ten-year sentence.