United States v. Nunez

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1384

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

M IGUEL N UNEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 09-CR-128— Rudolph T. Randa, Judge.

A RGUED S EPTEMBER 14, 2010 — D ECIDED N OVEMBER 30, 2010

Before B AUER, F LAUM, and H AMILTON, Circuit Judges.

F LAUM, Circuit Judge. Miguel Nunez pled guilty to

knowingly and intentionally possessing over 500 grams of

cocaine with intent to distribute. The district court sen-

tenced Nunez to sixty months imprisonment, the manda-

tory minimum sentence, after determining that Nunez

was not eligible for a “safety valve” adjustment to his

sentence, which would have permitted the court to set

a sentence below the mandatory minimum. Nunez argues

2 No. 10-1384

that the district court violated his due process right to be

sentenced on the basis of reliable information when it

considered hearsay information from two confidential

informants at sentencing. We affirm.

I. Background

An informant working under the direction and control of

law enforcement made four controlled purchases of

cocaine from Miguel Nunez between January 20, 2009, and

April 30, 2009. Three of the purchases took place either

inside or in the alley behind Nunez’s “stash house” in

Milwaukee, Wisconsin; the fourth occurred at the Omega

Restaurant in Milwaukee.

During the second purchase, which took place at Nunez’s

stash house, the informant observed Angie Schram,

Nunez’s girlfriend, inside the residence. Nunez told

the informant that he was living with Schram in a trailer

home. During the third purchase, Nunez told the infor-

mant that he was still living with Schram in her trailer

home. After the transaction, government agents observed

Nunez leave his stash house and briefly meet with Jose

Garza, one of Nunez’s co-defendants in this case, in

Nunez’s vehicle.

Nunez and the informant scheduled the fourth purchase

during a recorded telephone call on April 30, 2009. The

informant planned to purchase .5 kilograms of cocaine

from Nunez at the Omega Restaurant in Milwaukee,

Wisconsin. Agents surveilled Nunez before the meeting

and observed the following events: Nunez arrived at his

No. 10-1384 3

trailer home in Oak Creek, Wisconsin, with Garza follow-

ing in his own vehicle; both men then entered Nunez’s

residence, where they remained for approximately eight

minutes before leaving and driving towards the Omega

Restaurant in separate cars; upon arriving at the restaurant,

Nunez parked in the parking lot and Garza parked

across the street, where he had a direct view of Nunez and

the informant. The informant then met with Nunez

in Nunez’s car.

Government agents arrested Nunez and Garza at the

scene of the fourth purchase. The agents recovered .5

kilograms of cocaine from Nunez’s vehicle. Agents

searched Garza and his vehicle, discovering 1.5 grams of

cocaine, a small amount of marijuana, and $1,200 in cash.

Agents also conducted a consent search of Garza’s resi-

dence, finding two firearms and a digital scale. Finally,

agents searched Nunez’s and Schram’s trailer residence

pursuant to a search warrant, recovering three ounces of

powder cocaine, packaging materials, and two digital

scales. Agents also observed drugs and drug paraphernalia

scattered around their residence.

Nunez, Garza, and Schram were indicted on May 12,

2009. Nunez was indicted on five counts of drug-related

offenses. Count Five, the only Count relevant to this

appeal, was issued against Nunez and Garza for possessing

500 grams or more of cocaine with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18

U.S.C. § 2.

Nunez debriefed with government agents on June 25,

2009. During the debriefing, Nunez provided background

4 No. 10-1384

information about his involvement in the drug trade,

including, for example, when he first became involved in

selling drugs. He also discussed the names of individuals

from whom he obtained drugs, the prices he paid

for drugs, the amounts he dealt, and the locations at which

he stored drugs, among other information. But

Nunez refused to provide any information regarding his

customers, and he also failed to mention Garza’s and

Schram’s knowledge of and involvement in the above-

mentioned controlled purchases, other than to state that he

had given Garza some cocaine. Instead, when asked about

Garza’s presence near the scene of Nunez’s arrest, Nunez

stated that Garza was there because Nunez planned

to purchase lawn furniture from a store near the Omega

Restaurant, and Garza was going to help Nunez transport

the furniture back to Nunez’s house. Nunez stated

that Garza had nothing to do with the drug transaction for

which Nunez was arrested.

The government scheduled a second debriefing to learn

more about the charged offense. But Nunez indicated that

he was unwilling to discuss his customers and co-defen-

dants, and that he was only willing to discuss particular

suppliers. The government ended the debriefing because

it was not interested in Nunez’s proposed limits.

On August 5, 2009, government agents interviewed a

confidential informant (“CI-1”) who was housed at

Waukesha County Jail with Nunez. During his interview,

CI-1 stated that he knew Nunez and Garza through

affiliations with gangs, and that he had purchased mari-

juana from Garza on various occasions. CI-1 stated that

No. 10-1384 5

Nunez told him details about his arrest, including that it

occurred at the Omega Restaurant. CI-1 also indicated that

Nunez told him that Garza was aware of the drug transac-

tion for which Nunez was arrested, and that Garza

was across the street from the site of the transaction

to serve as a lookout. CI-1 provided government agents

with various other details that Nunez told him about

the case, including that Garza had roughly one gram

of cocaine on him when he was arrested; that the police

seized two firearms while searching Garza’s residence;

that the police searched Nunez’s residence and recovered

three ounces of cocaine; that Nunez had a trailer home

that was different from his stash house; that Nunez spoke

to a police officer on one occasion, but the officer to

whom he spoke was not the officer who arrested him;

and that Schram knew that Nunez was selling cocaine

and that he kept cocaine at their residence. CI-1 stated

that Nunez told him that Nunez and Garza were opti-

mistic that they would receive the money from the fourth

controlled purchase and that they used the same cocaine

source. CI-1 also stated that Nunez told him that

Nunez lied about Garza’s involvement in the offenses

at issue to government agents during his debriefing

because “there was no need for both of them to go to jail,”

and that he was not going to tell the police about his

drug source because he was going to need the source

again when he got out of jail. CI-1 also explained that

Nunez admitted to him that he intended to lie to govern-

ment agents about Garza’s and Schram’s participation in

the cocaine transactions to make it seem like they were not

involved.

6 No. 10-1384

On October 27, 2009, government agents interviewed a

second confidential informant (“CI-2”). Although CI-2 did

not know Nunez or Garza, he identified Nunez from

a photograph as an individual with whom he had recently

been housed at Waukesha County Jail. CI-2 stated that

he saw a person who was also housed in jail with him

conversing with Nunez while in jail. It is unclear

whether CI-2 stated that the person he observed talking to

Nunez was CI-1; the notes documenting the government’s

interview with CI-2 redact both informants’ names. CI-

2 stated that he did not hear most of the conversation

between the person and Nunez, but that he knew that

Nunez discussed his arrest related to a federal cocaine

case.

Nunez pled guilty to Count Five in October 2009. Prior

to sentencing, the United States Probation Office (“USPO”)

interviewed Nunez for a Presentence Investigation Report

(“PSR”). The PSR found that Nunez was eligible for

a safety valve adjustment pursuant to 18 U.S.C. § 3553(f),

which permits the district court to impose a sentence below

the mandatory minimum.

The government filed a written objection with the USPO

via email on January 17, 2010, asserting that Nunez did not

satisfy the fifth requirement of safety valve eligibility,

which requires that defendants “truthfully provide[ ] to

the Government all information and evidence the defen-

dant 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). The government argued

that Nunez was not eligible for a safety valve designation

No. 10-1384 7

because he limited the scope of his debriefing, and thus

failed to provide full and complete information about his

and his co-defendants’ relevant conduct. In particular, the

government asserted that Nunez attempted to falsely

exculpate Garza, and that he failed to discuss Schram’s

involvement in the offense. To support its objection, the

government attached to its email notes from Nunez’s

first debriefing, and from its interviews with CI-1 and CI-2.

The government did not call CI-1 to testify at Nunez’s

sentencing because CI-1 received death threats from

members of Nunez’s gang.

Nunez filed a response to the government’s objection,

arguing that hearsay evidence may be considered at

sentencing only if it is reliable. Nunez argued that state-

ments made by an unidentified confidential informant

cannot be deemed reliable or accurate unless the govern-

ment could show good cause for not disclosing CI-1’s

identity, and that CI-1’s statement was sufficiently corrobo-

rated. Nunez asserted that the government failed

to adequately demonstrate good cause or sufficient corrob-

oration. Accordingly, he argued that he should remain

eligible for the safety valve designation since the govern-

ment’s objection rested upon unreliable and unverifiable

information obtained from a confidential informant.

The district court held a sentencing hearing on February

5, 2010, at which both Nunez and the government pre-

sented oral arguments. The district court concluded that

Nunez was not eligible for a safety valve adjustment. It

sentenced Nunez to sixty months imprisonment on Count

Five, the mandatory minimum. The court also sentenced

8 No. 10-1384

Nunez to four years of supervised release, and ordered

him to pay $4,500 in restitution for the buy money ex-

pended in the case and a $100 special assessment.

Nunez timely appeals. He also moves to strike portions

of the government’s opposition brief that reference

facts that he alleges are not part of the record on appeal.

II. Analysis

A. The Record On Appeal

Nunez moves to strike three portions of the govern-

ment’s opposition brief, arguing that the government

violated Federal Rule of Appellate Procedure 10(a) by

referencing facts that are not a part of the record on

appeal. First, Nunez argues that particular facts

the government references in the first two sentences of

the second full paragraph on page six, and in the third

sentence of the second full paragraph on page eighteen

do not appear in the sources to which the government

cites as support. Second, Nunez argues that the govern-

ment’s reference to its proffer at sentencing regarding

Nunez’s second debriefing with law enforcement in

the first full paragraph of page ten is improper. Nunez

concedes that the proffer itself is in the sentencing tran-

script. But he argues that the government never provided

him with notes from the second debriefing, and that

the content of the second debriefing was never presented

to the district court in any form other than the govern-

ment’s proffer at the sentencing hearing.

Rule 10(a) provides that “[t]he following items constitute

the record on appeal: (1) the original papers and exhibits

No. 10-1384 9

filed in the district court; (2) the transcript of proceedings,

if any; and (3) a certified copy of the docket entries pre-

pared by the district clerk.” FED. R. A PP. P. 10(a); see also

7th Cir. R. 10; Henn v. Nat’l Geographic Soc’y, 819 F.2d

824, 831 (7th Cir. 1987). The government concedes that it

cited to the wrong source on pages six and eighteen of

its opposition brief; it erroneously cited to the plea agree-

ment, while the challenged assertions on pages six

and eighteen of its brief appear in an affidavit attached

to the criminal complaint. In addition, the government

correctly points out that each of the challenged assertions

on page ten of its opposition brief regarding Nunez’s

second debriefing was presented to the district court at the

sentencing hearing, and thus they appear on the transcript

from that hearing. Accordingly, we deny Nunez’s motion

to strike; the portions of the government’s brief that Nunez

seeks to strike are all included in the record on appeal

pursuant to Federal Rule of Appellate Procedure 10(a).

B. Safety Valve Eligibility

Nunez argues that the district court violated his due

process right by basing its sentencing decision on unreli-

able information. He argues that the district court improp-

erly relied upon CI-1’s out-of-court statement when it

found Nunez ineligible for a safety valve adjustment.

This case implicates three standards of review. First, we

review for clear error a district court’s denial of a safety

valve departure. United States v. Corson, 579 F.3d 804,

813 (7th Cir. 2009). “[A] sentencing court clearly errs

by considering hearsay evidence only if the evidence

10 No. 10-1384

was devoid of any indicia of reliability.” United States v.

Sanchez, 507 F.3d 532, 538 (7th Cir. 2007); see also United

States v. Hollins, 498 F.3d 622, 629 (7th Cir. 2007) (“Clear

error will be found when, on review of the entire evidence,

we are left with the definite and firm conviction that

a mistake has been made.”). Second, we review for abuse

of discretion a district court’s determination that a confi-

dential informant’s hearsay statement is sufficiently

reliable. United States v. Mays, 593 F.3d 603, 608 (7th Cir.

2010). Finally, we review de novo a district court’s sen-

tencing procedures. Corson, 579 F.3d at 813.

Title 18, Section 3553(f) permits courts to impose a

sentence below the mandatory minimum to defendants

who meet five requirements. The fifth requirement pro-

vides that defendants must “truthfully provide[ ] 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.” 18 U.S.C. § 3553(f)(5). “This plainly broad language

suggests that any and all information that the defendant

possesses concerning the offense must be provided to the

Government.” United States v. Montes, 381 F.3d 631, 636

(7th Cir. 2004) (internal quotation marks and citation

omitted); see also United States v. Ponce, 358 F.3d 466,

468 (7th Cir. 2004) (“[The fifth criterion of § 3553(f)]

requires a defendant to make a good-faith attempt to

cooperate with the authorities and volunteer all

the relevant information he has concerning his offense.”

(citations omitted)); United States v. Arrington, 73 F.3d 144,

149 (7th Cir. 1996) (“[Section] 3553(f) states that a defen-

dant must disclose ‘all information’ concerning the course

No. 10-1384 11

of conduct-not simply the facts that form the basis for the

criminal charge”). Even if the government did not specifi-

cally ask a defendant to provide particular information, it

is the defendant’s duty to satisfy the requirements in

§ 3553(f), and the defendant must at least offer the informa-

tion he has. See Arrington, 73 F.3d at 148; see also Ponce,

358 F.3d at 468; United States v. Ramirez, 94 F.3d 1095, 1101

(7th Cir. 1996). The sentencing guidelines explain that

“offense or offenses that were part of the same course of

conduct or of a common scheme or plan” includes

“the offense of conviction and all relevant conduct.”

U.S.S.G. § 5C1.2, cmt. n.3. In order to qualify for the safety

valve adjustment, the defendant bears the burden of

proving each of the five requirements by a preponderance

of evidence. Montes, 381 F.3d at 634. A defendant

“cannot meet this burden if the government challenged

the truthfulness, accuracy, or completeness of his state-

ments and he produced nothing to persuade the district

court that his disclosures were truthful and complete.”

United States v. Martinez, 301 F.3d 860, 866 (7th Cir.

2002). The district court concluded that Nunez did not

satisfy the fifth requirement for safety valve eligibility.

Nunez argues that the district court based its conclusion

on unreliable information.

Defendants have a due process right to be sentenced on

the basis of reliable information. United States v. Lanterman,

76 F.3d 158, 160-61 (7th Cir. 1996). Defendants who chal-

lenge their sentence on the ground that the sentencing

court considered unreliable information must demonstrate

both that unreliable information was before the sentencing

12 No. 10-1384

court, and that the sentencing court relied on that informa-

tion in reaching its sentencing decision. See Lechner v.

Frank, 341 F.3d 635, 639 (7th Cir. 2003) (citing United States

v. Tucker, 404 U.S. 443 (1972)); see also United States

v. Hankton, 432 F.3d 779, 790 (7th Cir. 2005). But

the evidentiary standards are relaxed at sentencing; judges

can consider a largely unlimited scope of evidence,

“as long as [the evidence] has ‘sufficient indicia of reliabil-

ity to support its probable accuracy.’ ” United States

v. Maiden, 606 F.3d 337, 339 (7th Cir. 2010) (quoting

Hankton, 432 F.3d at 790); see also Mays, 593 F.3d at 608;

United States v. Johnson, 489 F.3d 794, 796-97 (7th Cir. 2007).

Accordingly, we routinely hold that “hearsay is permit-

ted at sentencing if it is reliable[, and that] reliability may

be established by corroborating evidence.” United States

v. Martinez, 289 F.3d 1023, 1029 (7th Cir. 2002).

We have held that “[a] sentencing court demonstrates

actual reliance on misinformation when the court gives

‘explicit attention’ to it, ‘found[s]’ its sentence ‘at least in

part’ on it, or gives ‘specific consideration’ to the informa-

tion before imposing sentence.” Lechner, 341 F.3d at

639 (quoting United States v. Tucker, 404 U.S. 443 (1972));

see also United States v. Salinas, 365 F.3d 582, 586-87 (7th

Cir. 2004). The district court explained its decision that

Nunez was ineligible for a safety valve adjustment in three

forms. First, during the sentencing hearing on February

5, 2010, the district court stated:

Well, the Court has heard the arguments now and

the Court has read the submissions. The Court has

reviewed the authority that is relied upon by the

No. 10-1384 13

defense in the Cammisano case[, 917 F.2d 1057

(8th Cir. 1990)]. It is an Eighth Circuit case. The

Court is not bound by that precedent. But having

read all of this -- and the Court will make these as

part of the Court’s reasoning in the record, obvi-

ously -- the Court doesn’t think and feel that the

Defendant has been fully cooperative, truthful.

And, in fact, the sense of the Court is that it is just

the opposite in some of these encounters. And that

is all supported by the fact that . . . there was [sic]

limitations set upon this discussion of relevant

conduct here. So the Court is . . . going to find that

the Defendant is not eligible for the safety valve.

Second, in its Statement of Reasons, the district court

explained that Nunez was ineligible for a safety valve

adjustment because he did not meet the fifth requirement

in § 3553(f) of providing truthful information. Third, the

minutes from the sentencing hearing state: “Court does not

think the defendant has been fully cooperative or truthful.

In fact, it’s just the opposite. Court finds the defendant

is not eligible for the safety valve.”

The government urged the district court to conclude that

Nunez failed to satisfy the fifth requirement for safety

valve eligibility based on two sources of evidence. First,

the government argued that Nunez placed limits on the

scope of his second debriefing, indicating that he failed

to provide the government with all of the information he

had concerning the charged offense. Second, the govern-

ment argued that CI-1’s statement demonstrated both

that Nunez lied, and that he failed to provide the govern-

14 No. 10-1384

ment with enough information during his first debriefing

to satisfy the fifth safety valve requirement. Based on

the government’s arguments and the district court’s three

explanations above, the district court arguably relied

on both pieces of evidence. Accordingly, we discuss each

in turn. We conclude by addressing Nunez’s remaining

arguments on appeal.

1. The Second Debriefing

The government informed the district court that Nunez

placed limits on the topics he was willing to discuss during

his second debriefing: Nunez was unwilling to discuss

his customers and his co-defendants, and he was only

willing to discuss particular suppliers.

Nunez does not challenge the reliability of the govern-

ment’s proffer at the sentencing hearing concerning the

limits he placed on his second debriefing. Instead, he

argues that the district court must have relied solely on CI-

1’s statements when it concluded that Nunez was untruth-

ful and unwilling to provide the government with

all information he had concerning the charged offense.

At the sentencing hearing, the district court expressly

indicated that it considered the limits Nunez placed on

his second debriefing. It, thus, clearly relied, at least in

part, on the limits Nunez placed on his second debriefing

in reaching its sentencing decision. See Lechner, 341

F.3d at 639.

The limits Nunez placed on his second debriefing suf-

fice to affirm the district court’s decision that Nunez was

No. 10-1384 15

ineligible for a safety valve adjustment: They demonstrate

that Nunez failed to provide the government with “all

information and evidence” he had “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);

see Montes, 381 F.3d at 634-37; Ponce, 358 F.3d at 468-

69; United States v. Alvarado, 326 F.3d 857, 860-62 (7th

Cir. 2003); Arrington, 73 F.3d at 148-49; Ramirez, 94 F.3d

at 1101. The district court did not clearly err when it

concluded that Nunez was ineligible for a safety

valve adjustment based, at least in part, on the limits

he placed on his second debriefing. In fact, we would

affirm the district court if it relied solely on the limits

Nunez placed on his second debriefing.

2. CI-1's Statement

Nunez argues that the district court erred primarily in

three ways when it considered CI-1’s statements at sen-

tencing. First, he argues that CI-1’s statements were

unreliable, and thus that the district court abused

its discretion when it held otherwise. Next, Nunez argues

that the district court failed to undertake a sufficiently

searching inquiry to ensure that CI-1’s statement was

reliable. Finally, he argues that the district court abused its

discretion in concluding that CI-1’s statement was reliable

because it failed to meaningfully exercise its discretion.

We disagree.

Nunez argues that CI-1’s statements were unreliable. He

posits that reliability can be established by disclosing CI-1’s

identity, corroborating CI-1’s statements with other

16 No. 10-1384

evidence, allowing the cross-examination of CI-1, or

evaluating whether CI-1’s statements are consistent with

other statements or evidence in the case. Nunez argues that

the government failed to establish CI-1’s reliability in any

of these four ways.

Contrary to Nunez’s argument, however, evidence on the

record corroborates significant portions of CI-1’s statement.

For example, the plea agreement corroborates the exact

weight of cocaine that CI-1 stated was found at Nunez’s

residence, the location at which Nunez was arrested, and

that Garza was parked across the street from the Omega

Restaurant during the fourth controlled purchase. The

affidavit submitted in support of the criminal complaint

corroborates CI-1’s statement regarding the approximate

weight of cocaine found on Garza’s person at the time of

his arrest. Portions of CI-1’s statement regarding

Schram’s awareness that Nunez was selling cocaine,

which Nunez neglected to mention during his debriefings,

and Garza’s awareness of and involvement in the charged

offense, which Nunez allegedly lied about during

his debriefings, are also corroborated by evidence on the

record. For example, CI-1’s statement that Schram

knew that Nunez was selling cocaine is corroborated by

evidence indicating that Schram was present at one of

the controlled purchases, that Nunez lived with Schram,

and that agents found cocaine, packaging materials, and

two digital scales at the residence Schram and Nunez

shared, and drug paraphernalia scattered inside. Also, CI-

1’s statement that Garza was acting as a lookout during

the drug purchase at the Omega Restaurant, which indi-

cates that Nunez lied to the government when he stated

No. 10-1384 17

that Garza was at the scene solely to help transport lawn

furniture, is corroborated by the fact that Garza parked his

car across the street from the parking lot in which Nunez

met with the government informant to transfer the drugs,

in a place where he had a direct view of Nunez. At least

the portions of CI-1’s statement that were corroborated had

“sufficient indicia of reliability to support its probable

accuracy.” Hankton, 432 F.3d at 790; see also Mays, 593

F.3d at 608-09; United States v. Are, 590 F.3d 499, 521-23 (7th

Cir. 2009); Martinez, 289 F.3d at 1029; United States

v. Morrison, 207 F.3d 962, 967-69 (7th Cir. 2000). Arguably,

then, the district court did not err by relying on CI-1’s

statement.

But even if the district court erred, the error was harm-

less. See Are, 590 F.3d at 523. The limitations Nunez placed

on his second debriefing suffice to affirm the district

court’s conclusion that Nunez was not eligible for a safety

valve adjustment. See, e.g., 18 U.S.C. § 3553(f)(5); Montes,

381 F.3d 631, 634-37. Further, relying on CI-1’s statement

could not have affected any aspect of Nunez’s sentence

other than his safety valve eligibility: He received the

mandatory minimum, and he would not have received a

different sentence if the district court had not considered

CI-1’s statement. Thus, any error in relying on CI-1’s

statements was harmless. See Are, 590 F.3d at 523.

Nunez’s argument that the district court failed to under-

take a sufficiently searching inquiry into the accuracy of

CI-1’s statements is similarly unavailing. Nunez notes that

we have reversed and remanded for a more searching

inquiry when a sentencing court relied on a particular

18 No. 10-1384

piece of evidence without providing an explanation for

why it credited that piece of evidence over another,

inconsistent piece of evidence. But the line of cases to

which Nunez cites primarily involves contradictory

statements by one witness regarding drug quantities,

offered to assist in a relevant conduct calculation at

sentencing. See United States v. Galbraith, 200

F.3d 1006, 1012-13 (7th Cir. 2000); United States v.

McEntire, 153 F.3d 424, 435-37 (7th Cir. 1998); United

States v. Beler, 20 F.3d 1428, 1433-35 (7th Cir. 1994). But

see United States v. Zehm, 217 F.3d 506, 514-15 (7th Cir.

2000) (comparing a witness’s statement to statements

from other witnesses and the defendant’s version of the

events). This case is distinct. Also, Nunez does not

argue that CI-1’s statements are internally inconsistent;

he argues merely that CI-1’s statements contradict

Nunez’s. We frequently affirm district courts’ decisions

to credit hearsay evidence at sentencing when the hearsay

is corroborated by evidence on the record. See, e.g.,

Hankton, 432 F.3d at 791-93; Morrison, 207 F.3d at 968-69;

United States v. Corbin, 998 F.2d 1377, 1386-87 (7th

Cir. 1993). The district court did not err in relying on CI-

1’s statement, even if it credited CI-1’s statement

over Nunez’s assertions in doing so. Again, though, even if

this was error, the error was harmless. See Are, 590 F.3d

at 523.

Nunez’s next argument, that the district court abused

its discretion because it did not consider and weigh the

factors relevant to evaluating the reliability of CI-1’s

reliability, is also unpersuasive. We have explained

that “[a]n exercise of discretion, in sentencing as in other

No. 10-1384 19

settings, cannot be affirmed when the judge fails to con-

sider and weigh the factors that bear on its exercise.”

United States v. Roberson, 474 F.3d 432, 436 (7th Cir. 2007).

But we must merely “satisfy ourselves, before we can

conclude that the judge did not abuse his discretion, that

he exercised his discretion, that is, that he considered

the factors relevant to that exercise.” Id. (quoting United

States v. Cunningham, 429 F.3d 673, 679 (7th Cir.

2005)). Although the district court did not provide

a detailed analysis of precisely why it decided to rely on

CI-1’s statement, it explained that it considered all of

the parties’ arguments on the issue, which included

arguments about the reliability of CI-1’s statement. Under-

standably, a party may desire a more thorough explana-

tion, but the district court judge appears to have exercised

his discretion. See Roberson, 474 F.3d at 436; Cunningham,

429 F.3d at 679. As explained above, however, even if

the district court judge abused his discretion, the error

was harmless. See Are, 590 F.3d at 523.

Finally, Nunez argues that CI-1 was unreliable because

he had a motive to lie. But this assertion is wholly specula-

tive and contrary to case law. See Galbraith, 200 F.3d at 1012

(writing that “the testimony of just one witness, even

a potentially biased witness, is sufficient to support

a finding of fact” at sentencing, and that “the trial court

is entitled to credit testimony that is totally uncorroborated

and comes from an admitted liar, convicted felon, large

scale drug-dealing, paid government informant” (internal

quotation marks and citations omitted)).

20 No. 10-1384

3. Nunez’s Remaining Arguments on Appeal

Nunez asserts two other arguments on appeal. First,

he argues that the information he provided to the govern-

ment during his first debriefing satisfied the fifth require-

ment in § 3553(f). Nunez provided detailed information

related to the charged offense. But the limits he placed on

his second debriefing, without more, warranted concluding

that Nunez was ineligible for a safety valve adjustment.

See 18 U.S.C. § 3553(f)(5); Montes, 381 F.3d at 634-37.

Second, Nunez argues that the fact that the USPO

originally found Nunez eligible for a safety valve ad-

justment when drafting the PSR facially indicates that

he met his burden of showing eligibility for the safety

valve adjustment. Nunez argues that since he met

his burden, the government should have faced a burden

of production when calling the information in the PSR into

question, and that the burden should have shifted back

to the defendant to convince the court that the facts

presented were actually true only if the government met

its burden of production. Nunez correctly acknowledges

that Seventh Circuit case law provides for burden-shifting

when a defendant challenges information in a PSR during

sentencing. See, e.g., United States v. Moreno-Padilla, 602

F.3d 802, 808-09 (7th Cir. 2010). He argues that fundamen-

tal fairness supports applying this doctrine when the

government challenges information in a PSR. While

a government’s challenge to a PSR that fails to reference

any evidence on the record and is based on pure specula-

tion may not require a defendant to produce more evi-

dence to support the PSR’s finding, we have not expressly

No. 10-1384 21

adopted Nunez’s proposed burden-shifting framework.

Instead, we maintain that the defendant bears the burden

of proving entitlement to a safety valve adjustment, Mon-

tes, 381 F.3d at 634, and that a defendant cannot meet his

burden “if the government challenged the truthfulness,

accuracy, or completeness of his statements and he pro-

duced nothing to persuade the district court that his

disclosures were truthful and complete.” Martinez, 301 F.3d

at 866. Even if we required the government to produce

evidence that Nunez failed to meet the fifth requirement in

§ 3553(f), it effectively did so when it discussed Nunez’s

second debriefing at the sentencing hearing, and when it

presented CI-1’s statement to the district court. The district

court correctly concluded that Nunez failed to meet the

fifth requirement in § 3553(f).

III. Conclusion

We A FFIRM Nunez’s sentence.

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