To qualify for “safety valve” sentence adjustment, defendant must disclose offense-related information to prosecutor, not probation officer

SENTENCING United States v. Cervantes, No. 06-4172, ___ F.3d ___ (10th Cir. Mar. 24, 2008). Appeal of sentence for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) where district court refused to apply “safety valve” adjustment to defendant’s sentence as provided at 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. HELD: (1) District court did not err by refusing to grant defendant “safety valve” sentence adjustment for truthfully providing to government all information and evidence concerning offenses that were part of same course of conduct or of common scheme or plan as required by 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Defendant does not meet requirements of “safety valve” provisions by disclosing evidence to probation officer during presentence investigation. Presentence report may not be considered as “information and evidence” provided to government for purposes of “safety valve” adjustment under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, because “government” means prosecuting authority, or Assistant U.S. Attorney, not probation officer. (2) Representations of counsel are insufficient in absence of stipulations to support “safety valve” sentence adjustment to sentence. Credibility determinations cannot be based upon which lawyer is more believable. Absent a favorable recommendation from the government, a defendant needs to put on evidence at the sentencing hearing to meet his burden of showing that he truthfully and fully disclosed everything he knew and to rebut government claims to the contrary. This evidence may include proffer documents, stipulated facts, or, in all likelihood, testimony from the defendant or a representative of the government subject to cross-examination. It is axiomatic that he who has the burden of proof must put on some evidence at a sentencing hearing to allow the district court to find, by a preponderance of the evidence, that he is eligible for the safety-valve adjustment. Read the opinion here.