United States v. Mejia-Pimental

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30604

Plaintiff-Appellee, D.C. No.

v.  CR-99-00147-001-

BRIJIDO MEJIA-PIMENTAL, RBL

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

October 18, 2006—Seattle, Washington

Filed February 26, 2007

Before: Dorothy W. Nelson, David R. Thompson, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

2157

UNITED STATES v. MEJIA-PIMENTAL 2159

COUNSEL

Peggy Sue Juergens, Seattle, Washington, for the defendant-

appellant.

2160 UNITED STATES v. MEJIA-PIMENTAL

John McKay, United States Attorney, and Douglas James

Hill, Assistant United States Attorney, Tacoma, Washington,

for the plaintiff-appellee.

OPINION

PAEZ, Circuit Judge:

This case provides the occasion to explore the parameters

of the statutory safety valve, which grants relief from certain

mandatory minimum sentences when five criteria are met. See

18 U.S.C. § 3553(f). We have previously decided that the fifth

factor, which requires a defendant to “truthfully provide[ ]”

all his knowledge about the crime to the Government before

sentencing, see § 3553(f)(5), is aimed at defendants “who

‘have made a good-faith effort to cooperate with the govern-

ment.’ ” United States v. Shrethsa, 86 F.3d 935, 940 (9th Cir.

1996) (quoting United States v. Arrington, 73 F.3d 144, 147

(7th Cir. 1996)). We have never, however, defined precisely

what “good faith” means in this context. We now hold that to

demonstrate “good faith,” a defendant need only show what

the statutory language directs: that by the time of sentencing,

he has “truthfully provided to the Government all information

and evidence [he] has concerning the offense or offenses.”

§ 3553(f)(5). In this case, the district court construed good

faith too broadly in determining that Mejia-Pimental was inel-

igible for relief. Because the court thus erred in its application

of the safety valve and then sentenced Mejia-Pimental with

reference to a mandatory minimum term, we vacate his sen-

tence and remand for resentencing.1

1

We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291.

UNITED STATES v. MEJIA-PIMENTAL 2161

I. OVERVIEW

This is the third time that Brijido Mejia-Pimental has

appealed his sentence.2 Not surprisingly, the procedural pos-

ture is somewhat complicated. In April 1999, a grand jury

indicted Mejia-Pimental and four co-defendants on multiple

counts for participating in a large drug trafficking conspiracy

involving cocaine, heroin, and methamphetamine. Conviction

on several of these charges triggers a 120-month mandatory

minimum sentence unless the defendant can demonstrate eli-

gibility for the safety valve.3 Mejia-Pimental pled guilty in

November 1999; in the plea agreement, the Government

acknowledged Mejia-Pimental’s eligibility for the safety

valve so long as he “provided a truthful statement to the gov-

ernment” about the crime — in accordance with § 3553(f)(5).

Mejia-Pimental withdrew his plea, however, when the district

court rejected the plea agreement because Mejia-Pimental had

“lied about his uncle’s involvement in the criminal enterprise

and the extent to which he even knew his uncle.”4

A jury convicted Mejia-Pimental of all counts. On February

2, 2001, the Honorable Jack E. Tanner sentenced Mejia-

Pimental to 210 months in prison. On appeal, we reversed and

remanded for resentencing because the district court had

failed to resolve “significant . . . objections” to the PSR. See

United States v. Mejia-Pimental, 60 F. App’x 687, 689 (9th

Cir. 2003). On remand, Judge Tanner imposed the same sen-

2

Also pending before us are two motions. We deny Mejia-Pimental’s

informal motion, contained in his Reply Brief, to strike references to the

Presentence Report (“PSR”) from the Government’s brief, and we grant

his motion to correct the docket to reflect accurately the date on which he

submitted sealed appellate exhibits.

3

21 U.S.C. § 841(b)(1)(A) establishes a ten-year minimum sentence for

conspiracy to distribute heroin and possession of heroin with intent to dis-

tribute in violation of 21 U.S.C. § 841(a).

4

Mejia-Pimental’s uncle, Cristino Tejeda-Mejia, whom both parties

acknowledge as the “true and ultimate leader” of the drug conspiracy, was

later indicted separately on lesser charges.

2162 UNITED STATES v. MEJIA-PIMENTAL

tence. We again reversed and remanded for resentencing in

light of United States v. Booker, 543 U.S. 220 (2005), and our

panel opinion in United States v. Ameline, 400 F.3d 646 (9th

Cir. 2005).5 See United States v. Mejia-Pimental, 122 F.

App’x 382 (9th Cir. 2005). Over the course of this procedural

roller coaster, Mejia-Pimental’s co-defendants all pled guilty

and received sentences of two years or less. His uncle, Cris-

tino Tejeda-Mejia, pled guilty, according to an affidavit from

Tejeda-Mejia’s attorney, to “one count of possession of a

listed chemical (pseudoephedrine)” and received thirty-

months imprisonment.

Before his third sentencing hearing, Mejia-Pimental con-

tacted the Government and offered to provide an in-person

safety valve proffer. The Government refused, primarily

because Mejia-Pimental had previously lied and declined to

cooperate, and because his uncle had already pled guilty, ren-

dering the information useless. In response, Mejia-Pimental

wrote a letter to the Government detailing his involvement in

the charged offenses, as well as his knowledge of the involve-

ment of others, including his uncle. On December 6, 2005,

a different district court judge, the Honorable Ronald B.

Leighton, held a full resentencing hearing and found that

Mejia-Pimental had not met the five criteria for safety valve

eligibility. Specifically, the court found that Mejia-Pimental

had failed to satisfy the safety valve’s fifth requirement —

truthfully providing the Government with complete informa-

tion. See 18 U.S.C. § 3553(f)(5). Although the Government

did not contend, and the district court did not find, that Mejia-

Pimental’s proffer letter was false or incomplete, the court

reasoned that

the government sought defendant’s help in the case

against his uncle, and defendant declined. Now, after

the uncle has been convicted on a lesser charge,

5

This decision was subsequently superceded by an en banc opinion. See

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).

UNITED STATES v. MEJIA-PIMENTAL 2163

defendant, at his third sentencing, wants to tell all he

knows and to obtain the benefit of the safety valve.

This court does not believe that this effort repre-

sents a good faith cooperation with the government

and the court does not accept the proffer.

The district court “add[ed] that even if the defendant was

safety valve eligible, the court would not, under the circum-

stances of this case, be inclined to go below that statutory

mandatory minimum.” The court sentenced Mejia-Pimental to

156-months imprisonment — 36 above the mandatory mini-

mum. Mejia-Pimental timely appealed, arguing that he had

satisfied the fifth safety valve factor, that the district court’s

interpretation of the safety valve statute was incorrect, and

that the court therefore erred in considering the mandatory

minimum when calculating his sentence.

II. STANDARD OF REVIEW

We review “ ‘the district court’s interpretation of the Sen-

tencing Guidelines de novo.’ ” United States v. Cantrell, 433

F.3d 1269, 1279 (9th Cir. 2006) (quoting United States v.

Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005)). Although we

“review for clear error the district court’s factual determina-

tion that a particular defendant is eligible for relief” under the

safety valve, United States v. Real-Hernandez, 90 F.3d 356,

360 (9th Cir. 1996) (emphasis added), we review de novo the

district court’s statutory interpretation of § 3553(f)(5), see

Cantrell, 433 F.3d at 1279. See also United States v. Ferry-

man, 444 F.3d 1183, 1185-86 (9th Cir. 2006) (reviewing

determination of safety valve eligibility for clear error but

independently interpreting “[t]he phrase ‘in connection

with’ ” as a question of law); Shrethsa, 86 F.3d at 938-40

(noting that whether defendant had been completely truthful

for purposes of § 3553(f)(5) was a factual matter, but “deem-

[ing legally] irrelevant” defendant’s “denial of guilty knowl-

edge at trial”).

2164 UNITED STATES v. MEJIA-PIMENTAL

III. DISCUSSION

[1] The safety valve statute provides that

the court shall impose a sentence pursuant to guide-

lines promulgated by the United States Sentencing

Commission under section 994 of title 28 without

regard to any statutory minimum sentence, if the

court finds at sentencing, after the Government has

been afforded the opportunity to make a recommen-

dation, that —

(1) the defendant does not have more than 1 crimi-

nal 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 dan-

gerous 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 Govern-

ment 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 rele-

vant or useful other information to provide or that

UNITED STATES v. MEJIA-PIMENTAL 2165

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); see also U.S. SENTENCING GUIDELINES

MANUAL (“U.S.S.G.”) § 5C1.2.6 The defendant bears the bur-

den of proving safety valve eligibility by a preponderance of

the evidence. See United States v. Franco-Lopez, 312 F.3d

984, 994 (9th Cir. 2002); United States v. Nelson, 222 F.3d

545, 550 (9th Cir. 2000). In this case, the district court denied

relief solely on the basis of its finding that Mejia-Pimental

failed to satisfy the fifth safety valve factor.7

1. “Good Faith” Under 18 U.S.C. § 3553(f)(5)

The Government has never suggested that Mejia-Pimental’s

final proffer was false or incomplete.8 Instead, the Govern-

6

We recently confirmed that the statutory safety valve “survives the

Supreme Court’s holding [that the Sentencing Guidelines are advisory] in

Booker,” 543 U.S. 220 (2005), and that we must “continue [to ensure], in

accordance with congressional intent, [that district courts] apply its relief

from mandatory minimums in appropriate cases.” United States v.

Cardenas-Juarez, 469 F.3d 1331, 1335 (9th Cir. 2006).

7

In its brief, the Government asserts that the district court erred in find-

ing that Mejia-Pimental satisfied the fourth safety valve requirement —

not being a leader or organizer. However, as the Government conceded at

oral argument, it waived this claim by not objecting before the district

court, so we do not address it here. See United States v. Vieke, 348 F.3d

811, 814 (9th Cir. 2003).

8

Although Mejia-Pimental did not provide the proffer until just prior to

his third sentencing hearing, the district court correctly considered it,

because

as a general matter, if a district court errs in sentencing, we will

remand for resentencing on an open record — that is, without

limitation on the evidence that the district court may consider. . . .

[T]he district court generally should be free to consider any mat-

ters relevant to sentencing, even those that may not have been

raised at the first sentencing hearing, as if it were sentencing de

novo.

2166 UNITED STATES v. MEJIA-PIMENTAL

ment’s complaint is that the “statement provided information

already known to the government about his co-defendants . . .

[and] his uncle.” Similarly, the district court “t[ook] a

broad[ ]” interpretation of the statute, finding that in light of

Mejia-Pimental’s earlier disobliging behavior, this most

recent effort, after all his co-conspirators had already pled

guilty, did not “represent[ ] good faith cooperation.” In short,

the district court found, and the Government now argues, that

because Mejia-Pimental lied in his initial proffer, and then

delayed disclosing additional information until after his uncle

and co-defendants were sentenced, he cannot demonstrate the

“good faith” that § 3553(f)(5) demands.9

In interpreting subsection five, we have already decided

that as long as the defendant provides truthful, complete infor-

mation before sentencing, previous lies and omissions will not

render him ineligible for the benefit of the safety valve. See

Shrethsa, 86 F.3d at 940. We have also, however, held that

Congress intended the safety valve to benefit offenders who

“ ‘have made a good-faith effort to cooperate with the govern-

ment.’ ” Id. (quoting Arrington, 73 F.3d at 147). In Shrethsa,

the defendant had initially confessed all his knowledge and

involvement, but then recanted that confession at trial. 86

F.3d at 940. We held that the recantation did not disqualify

him from obtaining safety valve relief, but specifically did

“not decide” whether a defendant who “provided information

for the first time at sentencing merely in order to take advan-

tage of the safety valve provision,” or whose tardiness “de-

United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc)

(citations omitted); see also United States v. Madrigal, 327 F.3d 738, 744-

46 (8th Cir. 2003) (holding that defendant who gave proffer after a contin-

uation of the sentencing hearing remained safety valve eligible).

9

Mejia-Pimental argues that the district court’s factual determination

that he lied to the Government is clearly erroneous. Because he raised this

issue for the first time in his Reply Brief, we consider it waived. See

United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per curiam).

UNITED STATES v. MEJIA-PIMENTAL 2167

prive[d] the Government of information” would likewise

qualify. Id. at 940 n.5. Mejia-Pimental’s situation presents this

question, and we answer it in the affirmative.

[2] The breadth of the “good faith” requirement in the con-

text of the safety valve is limited by the boundaries of the stat-

utory language; that is, a defendant satisfies his “good faith”

obligation by providing the Government with truthful, com-

plete information by the time of the sentencing hearing. Any-

thing else would unjustifiably impose on a defendant an

additional burden above and beyond the plain meaning of the

text of § 3553(f). In reaching this conclusion, we are per-

suaded by the Second Circuit’s decision in United States v.

Schreiber, 191 F.3d 103 (2d Cir. 1999). There, reviewing a

factual scenario similar to Mejia-Pimental’s, the court held

that “lies and obstruction” before sentencing do not preclude

safety valve eligibility. Id. at 106, 108-09.

Schreiber involved a defendant who had lied during “at

least two proffer sessions[,] . . . in part . . . to protect his

brothers [ ] from prosecution.” Id. at 104. Later, the defendant

offered a new proffer, but the Government refused to meet

with him. Id. at 105-06. “Shortly prior to sentenc[ing],”

approximately seven years after the initial arrest, the defen-

dant “forwarded two documents which he claims constitute

truthful disclosure of all the information and evidence he had

concerning the conspiracy, thus bringing him into compliance

with the safety valve statute.” Id. at 105. The court held that

[a]ssuming that appellant’s final proffers were com-

plete and truthful, we find that appellant complied

with subsection five by coming forward “not later

than the time of the sentencing hearing.” 18 U.S.C.

§ 3553(f)(5). The plain words of the statute provide

only one deadline for compliance, and appellant met

that deadline. Nothing in the statute suggests that a

defendant is automatically disqualified if he or she

previously lied or withheld information. Indeed, the

2168 UNITED STATES v. MEJIA-PIMENTAL

text provides no basis for distinguishing among

defendants who make full disclosure immediately

upon contact with the government, defendants who

disclose piecemeal as the proceedings unfold, and

defendants who wait for the statutory deadline by

disclosing “not later than” sentencing. Similarly, the

text provides no basis for distinguishing between

defendants who provide the authorities only with

truthful information and those who provide false

information before finally telling the truth.

Id. at 106.10

[3] We find this reasoning convincing. Under our reading

of the statute, the good faith inquiry focuses on the defen-

dant’s cooperation in fully disclosing his knowledge of the

charged offense conduct, not on identifying a defendant’s pre-

sentencing delays in providing this information.11 A defendant

10

See also United States v. Brownlee, 204 F.3d 1302, 1304 (11th Cir.

2000) (“Nothing in the statute suggests that a defendant who previously

lied or withheld information from the government is automatically dis-

qualified from safety-valve relief.”); United States v. Tournier, 171 F.3d

645, 646-48 (8th Cir. 1999) (rejecting an interpretation of § 3553(f)(5) that

would “prohibit sentencing courts from applying the safety valve to defen-

dants who wait until the last minute to cooperate fully [or] . . . to those

whose tardy or grudging cooperation burdens the government with a need

for additional investigation”).

11

A review of relevant cases from our sister circuits confirms that good-

faith cooperation refers to cooperation in the disclosure itself. See, e.g.,

United States v. Warren, 338 F.3d 258, 263-67 (3d Cir. 2003) (noting the

“good-faith effort” requirement and affirming a finding of safety valve

ineligibility when defendant failed to cooperate fully); United States v.

Matos, 328 F.3d 34, 41 (1st Cir. 2003) (same, where it was undisputed that

the ultimate proffer included “contradictions and omissions”); United

States v. Reynoso, 239 F.3d 143, 149-50 (2d Cir. 2000) (same, where

defendant provided information that was in fact “objectively false”);

United States v. Gonzales-Montoya, 161 F.3d 643, 652 (10th Cir. 1998)

(same, where defendant refused to “confess[ ] guilt”); United States v.

Gaviria, 116 F.3d 1498, 1522 & n.35 (D.C. Cir. 1997) (same, where

UNITED STATES v. MEJIA-PIMENTAL 2169

might, for example, agree to a proffer but refuse to answer

questions or answer them evasively, even though the Govern-

ment believes (or knows) that the defendant’s involvement in

the criminal conduct was more extensive than the proffer sug-

gests. Such behavior would not constitute good faith because

it would not provide the Government with a truthful, complete

disclosure. See United States v. Washman, 128 F.3d 1305,

1307 (9th Cir. 1997) (noting that “[t]he intent of Congress

would be thwarted if defendants could obtain the benefit of

the safety valve yet not disclose their true role”). Conversely,

as long as a defendant’s ultimate proffer is truthful and com-

plete, he has satisfied the fifth safety valve criterion, regard-

less of his timing or motivations.

[4] United States v. Arrington, 73 F.3d 144 (7th Cir. 1996),

the case from which we borrowed the “good faith” language

in Shrethsa, 86 F.3d at 940, further supports the view that

“good faith” refers only to full disclosure. There, the Seventh

Circuit emphasized the defendant’s failure to provide an ade-

quate proffer:

Baker has not fulfilled the requirements of 3553(f).

Although he stipulated to the basic details of his

defendant had perjured himself at trial and pre-sentencing but did not cor-

rect those lies with any additional information); United States v. Gambino,

106 F.3d 1105, 1110-12 (2d Cir. 1997) (same, where defendant “failed to

provide [certain] information regarding the offense of conviction”).

In Shrethsa, we “observ[ed]” that the Fourth Circuit had interpreted

“good faith” more broadly in United States v. Fletcher, 74 F.3d 49 (4th

Cir. 1996), a case in which it affirmed a “district court’s denial of safety

valve reduction where a defendant perjured himself at trial but ‘came

clean’ at sentencing.” Shrethsa, 86 F.3d at 940 n.5. For the reasons articu-

lated in this opinion, we decline to follow Fletcher. Moreover, in Shrethsa

we noted that United States v. Long, 77 F.3d 1060, 1062 (8th Cir. 1996),

also construed “good faith” in a broader fashion. The Eighth Circuit has

since distinguished that case on its facts, emphasizing that as long as the

defendant has come clean before sentencing, previous lies will not dis-

qualify him. See Tournier, 171 F.3d at 648.

2170 UNITED STATES v. MEJIA-PIMENTAL

offense conduct, he made no further efforts to coop-

erate. He failed to respond to a proffer letter sent by

the government outlining the terms that would apply

(e.g. limited immunity) if he provided additional

information. Furthermore, he did not initiate any

contact with government officials offering to provide

details of his involvement in drug dealing. Specifi-

cally, the government notes that Baker could have at

least provided the name of the “source” who sold

him the crack cocaine. Before granting relief under

3553(f), the court may reasonably require a defen-

dant to reveal information regarding his chain of dis-

tribution. . . . Baker argues that he should not be

required to reveal information that the government

did not specifically ask him to provide. . . . Although

Baker is not required to provide information that the

government expressly states that it does not want, he

must at least offer what he has.

Arrington, 73 F.3d at 148. The district court in this case used

Arrington to adopt “a broader principle” about the “good

faith” requirement, but it stretched the Seventh Circuit’s rea-

soning beyond what the opinion in fact supports. Where the

defendant in Arrington was uncooperative, even failing to

respond to a written proffer invitation sent by the Govern-

ment, 73 F.3d at 148, Mejia-Pimental volunteered the details

of his knowledge and participation. Assuming his proffer was

truthful and complete, it is sufficient.12 Cf. United States v.

Otis, 127 F.3d 829, 836 (9th Cir. 1997) (per curiam) (affirm-

ing the district court’s determination that the defendant had

not satisfied § 3553(f)(5) when he offered a proffer in

exchange for a misdemeanor plea, the Government refused,

12

That the proffer was written and not oral is of no consequence,

because the safety valve “allows any provision of information in any con-

text to suffice, so long as the defendant is truthful and complete.” Real-

Hernandez, 90 F.3d at 361 (holding that a debriefing session from an ear-

lier incident constituted an adequate proffer).

UNITED STATES v. MEJIA-PIMENTAL 2171

and the defendant made no further efforts to disclose his

knowledge).

As posited by the Government and the district court, good-

faith cooperation in the context of the safety valve forbids

deliberate delays in the timing of the proffer or attempts to

impede law enforcement investigation. The advisory Sentenc-

ing Guidelines, however, already address such conduct

through other provisions, such as the enhancement for

obstruction of justice, see U.S.S.G. § 3C1.1; the adjustment

for acceptance of responsibility, see U.S.S.G. § 3E1.1; and the

departure for substantial assistance, see U.S.S.G. § 5K1.1. We

see no evidence that through the safety valve Congress or the

Sentencing Commission intended to duplicate them. See

Shrethsa, 86 F.3d at 940 (noting that the safety valve statute

differs from a § 5K1.1 substantial assistance departure, which

“provid[es] the government with a means to reward a defen-

dant for supplying useful information”); Schreiber, 191 F.3d

at 108 (reasoning that even if “the government’s interest in

disclosure could justify penalizing defendants who lie or with-

hold information during proffer sessions, a similar scheme

already exists independent of the safety valve. . . . The text of

§ 3553(f) is devoid of any suggestions that the safety valve is

meant to supplement § 3C1.1.”) (citing U.S.S.G. § 3C1.1

(obstruction of justice)). Further, to the extent that this con-

duct is not fully captured by the advisory Guidelines, the fac-

tors listed in 18 U.S.C. § 3553(a) allow district courts to

account for reluctant cooperation by tailoring individual sen-

tences accordingly.13 See United States v. Booker, 543 U.S.

220 (2005).

13

See, e.g., 18 U.S.C. § 3553(a)(1) (“the nature and circumstances of the

offense and the history and characteristics of the defendant”);

§ 3553(a)(2)(A) (“the need for the sentence imposed . . . to reflect the seri-

ousness of the offense, to promote respect for the law, and to provide just

punishment for the offense”); § 3553(a)(6) (“the need to avoid unwar-

ranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct”).

2172 UNITED STATES v. MEJIA-PIMENTAL

[5] More importantly, the safety valve statute’s text, which

explains that “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” eligibil-

ity, 18 U.S.C. § 3553(f)(5), prohibits reading the provision to

allow any consideration of the proffer’s effect on law enforce-

ment investigations. Policy concerns about the need for defen-

dants to cooperate in the most helpful and efficient manner

with the Government do not present a compelling justification

for stretching the plain meaning of the statute. In Schreiber,

the court rejected the Government’s contention that “the

defendant’s good faith cooperation is to be evaluated, as a

whole, from the start of the criminal proceeding” because “[a]

defendant who could gain the benefit of the safety valve in

such a case would have a reduced incentive to tell the truth.”

Schreiber, 191 F.3d at 107. We agree with the Second Circuit

that these “concerns” are “largely theoretical” because a

defendant who lies “risks irrevocably undermining his or her

credibility” such that the district court will find, as a factual

matter, that his disclosure was incomplete, or that the “lies

will be exposed at the sentencing hearing itself, thus disquali-

fying the defendant from relief.” Id. Therefore, although

Mejia-Pimental’s tardiness thus may have sentencing conse-

quences, as the Eighth Circuit put it, early and consistent

cooperation is “not a precondition for safety valve relief.”

Tournier, 171 F.3d at 647.

[6] In lying initially, Mejia-Pimental took a risk that the

district court would not believe that his ultimate proffer was

truthful and complete. The district court had ample channels

through which to address Mejia-Pimental’s lies or the timing

of his proffer — not least its broad sentencing discretion

under § 3553(a). The duty of “good-faith efforts to cooperate”

that we have placed on defendants seeking to satisfy

§ 3553(f)(5), however, was not one of them. This reasoning

supports our longstanding view that unlike the adjustment for

acceptance of responsibility, see U.S.S.G. § 3E1.1, “[t]he

safety valve is not concerned with sparing the government the

UNITED STATES v. MEJIA-PIMENTAL 2173

trouble of preparing for and proceeding with trial.” Shrethsa,

86 F.3d at 940. Section 3553(f)(5) does not impose “some

overrarching duty of good faith cooperation,” see United

States v. Jeffers, 329 F.3d 94, 99 (2d Cir. 2003) (citation omit-

ted), but instead is a simple duty of “good-faith effort[s]” to

“provide the government with complete information by the

time of the sentencing hearing,” Shrethsa, 86 F.3d at 940. The

district court therefore erred, as a matter of law, in finding

Mejia-Pimental ineligible for safety valve relief on the basis

of the lies and delays that preceded his final proffer.

2. Reversible Error

[7] “Where we discover an error not of constitutional mag-

nitude, we must reverse unless there is a fair assurance of

harmlessness or, stated otherwise, unless it is more probable

than not that the error did not materially affect the verdict.”

United States v. Gonzales-Flores, 418 F.3d 1093, 1099 (9th

Cir. 2005) (citation, alterations, and internal quotation marks

omitted). When, as here, the defendant has properly preserved

the sentencing error, the burden of demonstrating harmless-

ness falls on the Government. Id. Errors in the determination

of safety valve eligibility require resentencing even where the

district court has indicated that it would not have sentenced

below the mandatory minimum. In United States v. Real-

Hernandez, the district court interpreted the safety valve stat-

ute incorrectly but had also stated that “it would not ‘exercise

its prerogative to go below the mandatory minimum’ ” in any

case. 90 F.3d at 361 (alterations omitted). We reversed none-

theless, emphasizing that “if on remand [the defendant] car-

ries his burden of showing that he qualifies for relief under

the safety valve, the district court has no discretion to with-

hold application” of it. Id. (citation omitted). Despite the dis-

trict court’s suggestion it would have sentenced above the

mandatory minimum under any circumstances, we held that

the safety valve statute

states that “the court shall impose a sentence pursu-

ant to [the Guidelines] without regard to any statu-

2174 UNITED STATES v. MEJIA-PIMENTAL

tory mandatory minimum sentence” if the court finds

that a defendant meets all five criteria. This, of

course, does not require the court to sentence a

defendant to a term less than the mandatory mini-

mum, but it does require the court to sentence the

defendant “without regard to any statutory mini-

mum.”

Id. at 361-62 (citations omitted).

[8] In other words, the fact that a district court used the

mandatory minimum as a reference point requires resentenc-

ing if the defendant was in fact safety valve eligible. Such a

result makes sense. Mandatory minimums impose stringent

starting points on district courts’ sentencing authority. The

type of discretion afforded a court that is restrained by a statu-

tory minimum is wholly unlike that afforded one that is not.

It is therefore impossible for appellate courts to determine

how a district court sentencing under a mandatory minimum

might have exercised its sentencing discretion had it not been

so constrained. Thus, the court’s consideration of the manda-

tory minimum term in fashioning Mejia-Pimental’s sentence

constitutes reversible error. The Government offers no evi-

dence other than the district court’s comment that it was not

“inclined to go below that statutory mandatory minimum”

even if Mejia-Pimental were “safety valve qualified” to dem-

onstrate that the error was harmless. In light of Real-

Hernandez, the Government cannot meet its burden on this

record.

Although the Government has never asserted that Mejia-

Pimental’s final proffer was false or incomplete, the district

court did not reach this issue. Instead, the court “did not

accept the proffer” because it found that Mejia-Pimental had

failed to satisfy a “broader” duty of good-faith cooperation.

Therefore, on remand, the district court must consider

whether that final written proffer was in fact truthful and com-

plete. If so, while the court is not bound to a term of less than

UNITED STATES v. MEJIA-PIMENTAL 2175

ten years, it must nevertheless sentence Brijido Mejia-

Pimental “without regard to” the 120-month mandatory mini-

mum.14

VACATED AND REMANDED FOR RESENTENC-

ING.

14

In light of our disposition, we need not address Mejia-Pimental’s

claim that his sentence of 156 months was unreasonable.