The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0760n.06
FILED
No. 10-1850
Nov 09, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
MARIO DAVID ALFARO-FLORES, ) MICHIGAN
)
Defendant-Appellant. )
Before: MARTIN and GIBBONS, Circuit Judges; STEEH, District Judge.*
MARTIN, BOYCE F., JR., Circuit Judge. Mario David Alfaro-Flores appeals his seventy-
eight-month sentence for possession with intent to distribute cocaine. For the reasons that follow,
we affirm Alfaro-Flores’s sentence.
Alfaro-Flores entered a guilty plea to possession with intent to distribute 500 grams or more
of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). Alfaro-Flores’s presentence report
set forth a base offense level of 28, which was reduced by two levels for acceptance of responsibility
pursuant to USSG § 3E1.1(a). Alfaro-Flores’s total offense level of 26 and criminal history category
of I established an advisory guidelines range of sixty-three to seventy-eight months of imprisonment.
Alfaro-Flores filed a motion for a downward variance and a sentencing memorandum requesting that
the district court reduce his total offense level by one additional level for the relative timeliness of
his guilty plea and two additional levels under the safety-valve provisions of 18 U.S.C. § 3553(f) and
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
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USSG § 5C1.2(a). At sentencing, the district court rejected Alfaro-Flores’s arguments in support
of a downward variance and, after considering the sentencing factors under 18 U.S.C. § 3553(a),
sentenced him to seventy-eight months of imprisonment.
This timely appeal followed. Alfaro-Flores asserts that the district court erred in denying him
credit under the safety-valve provisions and that the district court failed to address his requests for
safety-valve credit and for a downward variance. Alfaro-Flores’s arguments challenge the
procedural reasonableness of his sentence. A sentence is procedurally unreasonable if the district
court committed “significant procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).
We review the district court’s decision to deny safety-valve relief for clear error. United
States v. Haynes, 468 F.3d 422, 426 (6th Cir. 2006). The district court clearly errs when we are “left
with the definite and firm conviction that a mistake has been committed.” United States v. Webb,
616 F.3d 605, 609 (6th Cir. 2010) (internal quotation marks omitted). “A defendant bears the burden
of proving by a preponderance of the evidence that he or she is entitled to a safety valve reduction.”
Haynes, 468 F.3d at 427.
Here, the parties agreed that Alfaro-Flores satisfied all but the fifth condition for application
of the safety-valve provisions: i.e., whether he had “truthfully provided 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.” 18 U.S.C. § 3553(f)(5); USSG § 5C1.2(a)(5).
At sentencing, Alfaro-Flores declined to present any testimony as to his eligibility for safety-valve
relief and instead “let the record speak for itself,” asserting that “[t]he facts are pretty well laid out
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in the presentence report and our memorandum” and conceding that “[t]he government’s recitation
of facts is correct.” Alfaro-Flores told the probation officer and other law enforcement agents that
he engaged in the instant offense only to protect himself and his family from harm. According to
Alfaro-Flores, he owed a debt to certain individuals after the seizure of two kilograms of cocaine that
he was transporting for them, and these individuals threatened him and his family if he did not
transport the three kilograms of cocaine involved in the instant offense. Alfaro-Flores asserts that
he was consistent in his account of the offense. However his account was internally inconsistent and
inconsistent with other evidence that established he had engaged in trafficking of large quantities of
cocaine. Based on the record, the district court did not clearly err in denying safety-valve relief on
the basis that Alfaro-Flores had not truthfully provided all information and evidence regarding his
offense.
Because defense counsel declined to raise any objections to the sentence when afforded the
opportunity to do so by the district court at the conclusion of the sentencing hearing, Alfaro-Flores’s
arguments regarding the district court’s alleged failure to address his requests for safety-valve credit
and for a downward variance are reviewed for plain error. See United States v. Vonner, 516 F.3d
382, 386 (6th Cir. 2008) (en banc); United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004).
Alfaro-Flores must demonstrate that “(1) there is an error; (2) the error is clear or obvious, rather
than subject to reasonable dispute; (3) the error affected [his] substantial rights, which in the ordinary
case means it affected the outcome of the district court proceedings; and (4) the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus,
130 S. Ct. 2159, 2164 (2010) (internal quotation marks and brackets omitted).
In support of his request for a two-level reduction in his total offense level under the safety-
valve provisions, Alfaro-Flores asserted that he was honest in his account of the offense. The district
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court questioned Alfaro-Flores about his account, noting that Alfaro-Flores claimed to be “just an
innocent victim” and reminding him that “[y]ou’ve got to keep your story straight here.” After
hearing the parties’ arguments regarding safety-valve relief, the district court stated that “it’s not
applicable here for a number of reasons” and continued to question Alfaro-Flores about the offense.
While the district court did not make a specific finding that Alfaro-Flores had not “truthfully
provided 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,” 18 U.S.C. §
3553(f)(5); USSG § 5C1.2(a)(5), the district court expressly stated that “[t]he history and
characteristics of Mr. Alfaro-Flores indicate an individual who’s been dishonest . . . and who
therefore for purposes of honesty and integrity should be given rather low grades.” The district court
could have been more explicit with respect to its denial of safety-valve relief, but given that “the
record makes clear that the sentencing judge considered the evidence and arguments” in imposing
a within-guidelines sentence, Rita v. United States, 551 U.S. 338, 359 (2007), there was no plain
error. Contrary to Alfaro-Flores’s assertion, “the fact that [he] qualified for a two-level acceptance
of responsibility reduction under § 3E1.1 does not establish eligibility for a safety valve reduction
under § 5C1.2.” United States v. Adu, 82 F.3d 119, 124 (6th Cir. 1996).
Alfaro-Flores also requested a one-level reduction in his total offense level on the basis that
his guilty plea was relatively timely. The government declined to move for an additional one-level
reduction under USSG § 3E1.1(b) because Alfaro-Flores, who entered his guilty plea immediately
after the final pretrial conference, failed to give timely notification of his intent to plead guilty, which
required the government to prepare for trial. At sentencing, the district court heard Alfaro-Flores’s
argument that his total offense level should have been reduced by three rather than two levels for
acceptance of responsibility and agreed with the government’s position, stating, “that’s the
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government’s call, that third point, and I think in fact it’s a good call.” The district court’s
explanation was brief, but it did not constitute plain error. Cf. United States v. Lapsins, 570 F.3d
758, 774 (6th Cir. 2009) (“A less lengthy explanation will suffice for a within-Guidelines sentence
when ‘the record makes clear that the sentencing judge considered the [defendant’s] evidence and
arguments.’” (quoting Rita, 51 U.S. at 359)). Furthermore, there is no indication that the district
court believed that it lacked the authority to vary from the guidelines based on a policy disagreement.
See United States v. Simmons, 587 F.3d 348, 364 (6th Cir. 2009).
For the foregoing reasons, we affirm Alfaro-Flores’s sentence.