U.S. v. Matos, 01-2431.

• Decision Date: 07 May 2003
• Docket Number: No. 01-2432.,No. 01-2431.,01-2431.,01-2432.
• Citation: 328 F.3d 34
• Parties: UNITED STATES of America, Appellee, v. Illio MATOS, Defendant, Appellant. United States of America, Appellee, v. Carlos Ovalles-Torres, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

328 F.3d 34

UNITED STATES of America, Appellee, v. Illio MATOS, Defendant, Appellant.

United States of America, Appellee, v. Carlos Ovalles-Torres, Defendant, Appellant.

No. 01-2431.

No. 01-2432.

United States Court of Appeals, First Circuit.

Heard March 3, 2003.

Decided May 7, 2003.

Luis Rafael Rivera for appellant Matos.

Rafael F. Castro Lang for appellant Ovalles-Torres.

Aixa Maldonado-Quiñones, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

Congress enacted the so-called "safety valve," 18 U.S.C. § 3553(f), as a vehicle for shielding certain first-time offenders from the draconian effects of mandatory minimum sentences. But the safety valve is not available upon demand; to qualify for it, a defendant must make a multifaceted showing (including a showing that he has disclosed to the government, truthfully and completely, all relevant information concerning the offense of conviction and any related offenses).

Defendants-appellants Illio Matos and Carlos Ovalles-Torres attempted to make that showing.¹ The district court methodically weighed their proffers and determined that they were ineligible for relief under the safety valve. United States v. Ovalles Torres, 161 F.Supp.2d 55, 58-60 (D.P.R.2001). Having reviewed the record with care, we find no clear error in the district court's determination. We therefore affirm the stated terms of imprisonment.

There is, however, a secondary issue. The lower court also ordered each appellant to serve a ten-year term of supervised release following the end of his incarceration. The appellants challenge both the legality of the elongated supervised release terms and the manner in which they were imposed. On this issue, we conclude that ten-year terms of supervised release were within the court's authority. Nevertheless, we agree with the parties that a procedural irregularity occurred: in imposing the ten-year terms of supervision, the court made what amounted to an upward departure without giving the appellants adequate notice of its intentions. Consequently, we vacate that aspect of the sentences and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The second superseding indictment in this case implicated the appellants, along with others, in an elaborate drug-smuggling and drug-trafficking operation. On January 25, 2000, the appellants pleaded guilty to a single count of that indictment, thus admitting that they had conspired with others to possess and distribute large quantities of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Each appellant entered into a written plea agreement. These agreements contemplated the possibility — but only the possibility — that the district court might impose a sentence without regard to any statutory minimum "if the Court finds that the defendant meets the criteria established in [the safety valve statute, 18 U.S.C. § 3553(f)]."

This brings us to the statute. With its enactment, Congress specifically excepted from statutory minimum sentences any defendant who meets the following criteria:

(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 section 408 of the Controlled Substances Act; 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.

18 U.S.C. § 3553(f) (2000).

Against this statutory backdrop, we return to the case at hand. Law enforcement agents debriefed the appellants, one by one, in order to gain whatever information they might possess concerning the offense of conviction — the conspiracy — or any other offenses that were part of the same scheme or course of conduct. See id. § 3553(f)(5). After comparing the appellants' stories with information gleaned elsewhere, the interrogators concluded that the appellants had been neither completely truthful nor especially forthcoming during their debriefings. As a result, the government promptly notified the appellants that it intended to oppose their attempt to invoke the safety valve.

Although the appellants have separate attorneys on appeal, both of them were represented below by the same counsel. That lawyer pressed the government to disclose the basis for its belief that the appellants had not fully complied with the statute, but the government refused to elaborate. It likewise refused a request that it conduct another round of debriefings. Instead, the prosecutors noted that it was a defendant's burden to prove his eligibility for the safety valve; warned that, if nothing more was forthcoming, they would present evidence at the appropriate time and place to rebut any claim of eligibility; and reminded defense counsel that the sentencing court would make the ultimate eligibility determination. The government added that a defendant knows when he has withheld information during a debriefing, and that such a defendant is free to augment his disclosures at any time prior to the sentencing hearing. Finally, the prosecutors took the position that the law did not require them to make agents available to extract such additional information by question and answer.

The district court subdivided the sentencing hearings into two parts. It began with separate hearings for each appellant on the question of safety valve eligibility. After holding evidentiary hearings on August 14 and September 14, 2000 — the first for Matos and the second for Ovalles-Torres — the court found that neither man had proven that he had timely furnished the government with truthful and complete information. Ovalles Torres, 161 F.Supp.2d at 58-60. These findings, which we discuss infra, precluded access to the safety valve.

On September 5, 2001, the court convened a joint hearing dedicated to the imposition of sentences. Each appellant stipulated that he bore responsibility for at least five but less than fifteen kilograms of cocaine. The government and the district court accepted the stipulations, which triggered ten-year mandatory minimum sentences. See 21 U.S.C. § 841(b)(1)(B). The court thereupon sentenced each appellant to an incarcerative term of that duration, to be followed by ten years of supervised release. These appeals ensued.

II. ANALYSIS

The appellants jointly maintain that the district court committed no fewer than three significant errors. The first assignment of error challenges the court's determination that they were ineligible for the safety valve. The second involves a claim that the appellants did not receive the process that was due. The third questions the imposition of ten-year periods of supervised release.² For efficiency of analysis, we address each of these claims of error separately.

A. Safety Valve Eligibility.

In the court below, the appellants asserted that they had truthfully and completely answered all the questions that the government had asked, and, therefore, that the burden had shifted to the government to show that they were ineligible for the safety valve. The appellants added that if the government believed that either of them was withholding information, it had a duty to come forward with the basis for that belief so that the affected defendant would have a fair chance to explain away the alleged omission. The district court rejected this contention as turning the statute upside down. The court stated in pertinent part:

The statute says that the defendant has to come forth and truthfully testify as to everything he knows. Now if he is going to sit back and say "Well, they didn't ask me that," then that is not what the statute requires. The statute requires an affirmative step on his part to come in and say, "I want to be debriefed because I want to tell you everything that I know." ... [T]he affirmative steps have to be taken by the defendant if he wants to have an opportunity to qualify for [the safety valve].

Ovalles Torres, 161 F.Supp.2d at 58-59 (quoting court's comments during initial phase of sentencing hearing).

In assaying a sentencing court's determination that a defendant failed to qualify for the safety valve, the standard of appellate review varies according to the foundation upon which that determination is based. See United States v. Marquez, 280 F.3d 19, 22 (1st Cir.2002). To the extent that the determination rests on conclusions of law, appellate review is plenary. Id. To the extent, however, that the determination hinges on differential factfinding, appellate review is for clear error. Id. The district court's determinations in this case are challenged both on legal and factual grounds, so both standards are in play.

It is too elementary to warrant citation of authority that we must test the district court's determination of safety valve ineligibility against the five requirements limned in section 3553(f). The parties agree that the first four criteria have been satisfied. The...