Opposition Brief — Giovanni Montijo-Dominguez, Petitioner v. United States

No. 19-109

In the Supreme Court of the United States

GIOVANNI MONTIJO-DOMINGUEZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

SCOTT A.C. MEISLER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Under 18 U.S.C. 3553(f )(5), district courts are authorized to sentence certain drug offenders to a term of

imprisonment below the otherwise-applicable statutory

minimum if, among other things, “not later than the

time of the sentencing hearing” the offender “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.”

18 U.S.C. 3553(f )(5).

The question presented is whether a sentencing

court may find that a defendant has satisfied this truthfuldisclosure requirement based on statements by the defendant that contradict the jury’s finding beyond a reasonable doubt that the defendant knowingly participated in a drug conspiracy.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (D. N.M.):

United States v. Montijo-Dominguez, No. 14-cr-3758

(Dec. 29, 2017)

United States v. Mendoza-Alarcon, No. 14-cr-3758

(Feb. 16, 2018)

United States Court of Appeals (10th Cir.):

United States v. Montijo-Dominguez, No. 18-2008

(Apr. 25, 2019)

United States v. Mendoza-Alarcon, No. 18-2036

(Apr. 25, 2019)

(II)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 8

Conclusion ................................................................................... 20

TABLE OF AUTHORITIES

Cases:

Allen v. McCurry, 449 U.S. 90 (1980) .................................. 11

Alleyne v. United States, 570 U.S. 99 (2013) ...................... 13

Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) ..... 11

Harris v. United States, 536 U.S. 545 (2002),

overruled by Alleyne v. United States,

570 U.S. 99 (2013) ............................................................... 13

United States v. Aguilera, 625 F.3d 482

(8th Cir. 2010) ...................................................................... 20

United States v. Bertling, 611 F.3d 477

(8th Cir. 2010) ...................................................................... 12

United States v. Campos, 362 F.3d 1013

(8th Cir. 2004) .................................................................. 9, 10

United States v. Costales, 5 F.3d 480

(11th Cir. 1993) .............................................................. 10, 11

United States v. Curry, 461 F.3d 452 (4th Cir. 2006) ........ 10

United States v. De La Torre, 599 F.3d 1198

(10th Cir.), cert. denied, 562 U.S. 898 (2010) ... 7, 14, 15, 16

United States v. Dunnigan, 507 U.S. 87 (1993) ................. 14

United States v. Freeman, 139 F. Supp. 2d 1364

(S.D. Fla. 2001), aff ’d, 37 Fed. Appx. 505

(11th Cir. 2002) .................................................................... 19

United States v. Fuller, 532 F.3d 656 (7th Cir. 2008) ........ 18

(III)

IV

Cases—Continued:

Page

United States v. Honea, 660 F.3d 318

(8th Cir. 2011) ................................................................ 14, 19

United States v. Jackson, 862 F.3d 365 (3d Cir. 2017) ...... 10

United States v. Moreno-Gonzalez, 662 F.3d 369

(5th Cir. 2011) ...................................................................... 20

United States v. Reynoso, 239 F.3d 143 (2d Cir. 2000)...... 18

United States v. Rivera, 411 F.3d 864 (7th Cir.),

cert. denied, 546 U.S. 966 (2005) ................................... 9, 18

United States v. Sherpa, 110 F.3d 656

(9th Cir. 1996) ...................................................... 7, 12, 13, 16

United States v. Slaton, 801 F.3d 1308

(11th Cir. 2015) ............................................................ 8, 9, 12

United States v. Susi, 674 F.3d 278 (4th Cir. 2012) ........... 14

United States v. Thompson, 76 F.3d 166

(7th Cir. 1996) ................................................................ 16, 17

United States v. Thompson, 106 F.3d 794

(7th Cir. 1997) .................................................... 11, 15, 17, 20

United States v. Watts, 519 U.S. 148 (1997) ......................... 9

United States v. Weston, 960 F.2d 212

(1st Cir. 1992) ................................................................ 10, 11

Constitution, statutes, rules, and guideline:

U.S. Const. Amend. VI............................................................ 9

Violent Crime Control and Law Enforcement Act

of 1994, Pub. L. No. 103–322, Tit. VIII, § 80001(a),

108 Stat. 1985 ...................................................................... 10

18 U.S.C. 3553(f )..................................................... passim

18 U.S.C. 3553(f )(1) ................................................... 10, 12

18 U.S.C. 3553(f )(1)-(4) (2012) .......................................... 6

18 U.S.C. 3553(f )(1)-(4) ................................................... 19

18 U.S.C. 3553(f )(4) ......................................................... 10

18 U.S.C. 3553(f )(5) ................................................ passim

V

Statutes, rules, and guideline—Continued:

Page

8 U.S.C. 1326 ............................................................................ 3

18 U.S.C. 3553(a)(4) ............................................................... 12

18 U.S.C. 3553(a)(6) ............................................................... 15

21 U.S.C. 841(b)(1)(A) ......................................................... 1, 3

21 U.S.C. 846 ........................................................................ 1, 3

Fed. R. Crim. P.:

Rule 29 ............................................................................ 4, 5

Rule 33 ................................................................................ 5

Fed. R. Evid. 404(b)(1) .......................................................... 12

Sentencing Guidelines § 5C1.2 (2016).................................... 5

Miscellaneous:

H.R. Rep. No. 460, 103d Cong., 2d Sess. (1994) ................. 10

18B Charles Alan Wright et al., Federal Practice

and Procedure (2d ed. 2002) .............................................. 11

In the Supreme Court of the United States

No. 19-109

GIOVANNI MONTIJO-DOMINGUEZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The order and judgment of the court of appeals (Pet.

App. 1a-14a) is not published in the Federal Reporter

but is reprinted at 771 Fed. Appx. 870.

JURISDICTION

The judgment of the court of appeals was entered on

April 25, 2019. The petition for a writ of certiorari was

filed on July 23, 2019. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the District of New Mexico, petitioner was

convicted of conspiring to possess with the intent to distribute more than five kilograms of cocaine, in violation

of 21 U.S.C. 841(b)(1)(A) and 846. Judgment 1. The district court sentenced petitioner to 120 months of impris(1)

2

onment, to be followed by five years of supervised release. Judgment 3-4. The court of appeals affirmed.

Pet. App. 1a-14a.

1. On October 7, 2014, petitioner and co-defendant

Luis Mendoza-Alarcon were arrested after they attempted to buy six kilograms of cocaine from undercover agents of the Homeland Security Investigations

unit (HSI) of the Department of Homeland Security.

Gov’t C.A. Br. 1; Presentence Investigation Report (PSR)

¶¶ 13-21. In the days preceding the arrest, the undercover agents had spoken by phone with Mendoza-Alarcon

—whom they knew as “Leche” or “Lichi”—and agreed

to sell him the cocaine at the price of $25,000 per kilogram, for a total of $150,000. Gov’t C.A. Br. 2; PSR

¶ 14. Based on Mendoza-Alarcon’s familiarity with coded

language commonly used in the drug trade, the agent

who first spoke with Mendoza-Alarcon understood him

to be an experienced drug trafficker. Gov’t C.A. Br. 2;

C.A. ROA 902-906.

At the planned time, Mendoza-Alarcon and petitioner

arrived for the drug deal at a Walmart parking lot in

Albuquerque, New Mexico. PSR ¶¶ 14, 15. MendozaAlarcon was the passenger in a Chevy Tahoe driven by

petitioner. PSR ¶ 15. Upon arriving, petitioner drove

the vehicle through the parking lot in a pattern that

agents identified as a counter-surveillance measure

designed to detect the presence of law enforcement.

Pet. App. 3a; Gov’t C.A. Br. 2. Petitioner and MendozaAlarcon engaged in approximately 12 minutes of negotiation with the agents over where they would make the

exchange, where the drugs were, and where to check (or

“try * * * out”) the cocaine, and potential future dealings with the drug suppliers. Gov’t C.A. Br. 2-3; PSR

3

¶ 15. Petitioner then handed the agents $150,000 in cash

shrink-wrapped in plastic. Pet App. 4a; PSR ¶ 16.

After petitioner handed over the money, MendozaAlarcon entered a second car that contained the cocaine

and indicated that the transaction was complete. Pet.

App. 4a; PSR ¶ 16. At that point, a separate group of

agents in marked police vehicles, with lights flashing and

sirens on, approached to arrest petitioner and MendozaAlarcon. PSR ¶ 17. Petitioner—who had been sitting

with one of the undercover agents—made a statement

of surprise and fled on foot. Ibid.; Gov’t C.A. Br. 3-4.

Agents eventually arrested petitioner after he had

jumped a chain-link fence lined with barbed wire and

continued to run when the agents identified themselves

as police and shouted “stop.” Gov’t C.A. Br. 4; C.A.

ROA 1226.

2. A federal grand jury returned an indictment

charging petitioner and Mendoza-Alarcon with conspiring

to possess with the intent to distribute more than five

kilograms of cocaine, in violation of 21 U.S.C. 841(b)(1)(A)

and 846. Superseding Indictment 1-3.1 In a pretrial debriefing with the government, petitioner denied any

knowledge that the transaction in the Walmart parking

lot was going to involve exchanging cash for cocaine.

D. Ct. Doc. 239-1, at 1-3 (Oct. 31, 2017). He asserted that

he understood himself to be helping a friend (MendozaAlarcon) who was the victim of extortion—specifically,

that a drug-cartel member named Lazaro had threatened

harm to Mendoza-Alarcon’s daughter unless MendozaPetitioner was also charged with illegal reentry after being removed from the United States, in violation of 8 U.S.C. 1326. Superseding Indictment 3. The district court severed that charge for purposes of trial, and petitioner ultimately pleaded guilty to it. Pet. 5

n.1; Pet. App. 25a.

1

4

Alarcon gathered up his savings and drove to meet with

unknown people. Id. at 2. Petitioner told the government that he did not hear or participate in MendozaAlarcon’s negotiations with the undercover agents in

the parking lot and that he never saw the police as they

approached to make the arrests. Id. at 2-3.

At petitioner’s joint trial with Mendoza-Alarcon, the

government presented testimony from the HSI agents

who participated in the undercover operation, as well as

recordings of the agents’ calls with Mendoza-Alarcon

and video recordings of the transaction in the Walmart

parking lot. Gov’t C.A. Br. 2-4. At the close of the government’s case, the district court denied petitioner’s

motion for a judgment of acquittal under Federal Rule

of Criminal Procedure 29. C.A. ROA 1250-1254. Petitioner and Mendoza-Alarcon then testified in their own

defense. Id. at 1695-1712, 1726-1855 (petitioner); id. at

1255-1294, 1301-1485, 1517-1582 (Mendoza-Alarcon). As

relevant here, petitioner largely repeated the account he

had given in his pretrial debriefing. He admitted to realizing at some point during the transaction that MendozaAlarcon had not told him everything about the transaction in which he was participating, id. at 1778, 1845, but

denied ever knowing or realizing that the transaction

was a drug deal involving distribution-level quantities

of cocaine, id. at 1778.

Based on the testimony about threats of harm to

Mendoza-Alarcon’s daughter, the district court instructed the jury on the affirmative defense of duress

or coercion. D. Ct. Doc. 195, at 10 (June 1, 2017). The

court also instructed the jury that, to find petitioner

guilty of participating in the drug conspiracy, the jury

had to find that petitioner knew the essential nature of

the conspiracy and “knowingly and voluntarily involved

5

[himself ] in the conspiracy.” Id. at 6. After the jury

found petitioner and Mendoza-Alarcon guilty, the court

denied petitioner’s post-trial motion for judgment of acquittal under Rule 29 or, in the alternative, for a new

trial under Rule 33. D. Ct. Doc. 215, at 1-6 (July 13,

2017). The court found sufficient evidence to support

petitioner’s conspiracy conviction and, in particular, that

the jury rationally inferred petitioner’s knowledge from

the circumstantial evidence that had been introduced.

Id. at 2-4.

3. The presentence report prepared by the Probation Office determined that petitioner was subject to a

statutory-minimum sentence of 120 months of imprisonment based on the jury’s verdict and that petitioner

was not eligible for a sentence below the minimum under the safety-value statute, 18 U.S.C. 3553(f ). See PSR

¶ 80; PSR Addendum 3. Under Section 3553(f ) and the

corresponding sentencing guideline, district courts are

authorized to sentence defendants convicted under certain drug statutes “without regard to any statutory minimum sentence, if the court finds at sentencing”—and

after hearing a recommendation from the government—

that five criteria have been met. 18 U.S.C. 3553(f ); see

Sentencing Guidelines § 5C1.2 (2016). Those criteria include that, “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.” 18 U.S.C. 3553(f )(5).2

2

At the time of petitioner’s offense, the other four criteria were:

(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

6

Petitioner objected to the presentence report, arguing that he had provided all the information he had and

that the jury’s verdict did not preclude a finding that he

had testified truthfully for purposes of Section 3553(f )(5).

Pet. App. 6a. The government responded that petitioner

was not entitled to safety-valve relief because a finding

that petitioner had been truthful would be inconsistent

with the jury’s determination beyond a reasonable

doubt that petitioner knowingly participated in the drug

conspiracy. D. Ct. Doc. 238, at 1-19 (Oct. 31, 2017).

The district court rejected petitioner’s safety-valve

argument and sentenced him to the statutory-minimum

term of 120 months of imprisonment. Pet. App. 15a-27a.

The court observed that it had “analyzed everything as

best [as it] could to see whether or not [petitioner] was

eligible for the safety valve.” Id. at 18a. The court

stated that it “had no choice but to conclude that he is

not eligible,” because if it “concluded that [petitioner]

had fully and completely and truthfully debriefed, [it]

would essentially find contrary to the jury verdict.”

Ibid.; id. at 22a (“[T]o find that he truthfully debriefed

would require me to reach a finding that is contrary to

the jury verdict.”). In making that observation, the

court reviewed the facts presented at trial and reiterated its previous determination that “those facts * * *

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; and (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.

18 U.S.C. 3553(f )(1)-(4) (2012).

7

justify the jury’s verdict.” Id. at 20a. The court found

that the verdict “could not [be] reconcile[d]” with relief

under “the safety valve.” Id. at 18a.

4. The court of appeals affirmed in an unpublished

order. Pet. App. 1a-14a.

As relevant here, the court of appeals first rejected

petitioner’s contention “that the jury could plausibly

have credited his testimony as truthful despite its guilty

verdict.” Pet. App. 12a; see id. at 12a-13a. The court

agreed with the district court that “the jury necessarily

must have found that [petitioner] knowingly participated in a conspiracy with” Mendoza-Alarcon and thus

necessarily “found his testimony to be untruthful.” Id.

at 13a.

The court of appeals also determined that the district

court had committed no legal error in declining to grant

safety-valve relief based on a finding that would contradict the jury’s verdict. Pet. App. 13a-14a. The court of

appeals acknowledged petitioner’s reliance on United

States v. Sherpa, 110 F.3d 656 (9th Cir. 1996), “which

allowed a district court to apply safety-valve relief notwithstanding a jury’s finding that a defendant testified

untruthfully,” Pet. App. 13a. But the court noted that

its “case law diverges from that of the Ninth Circuit”

and that it had previously stated that “[n]o reasonable

defendant could claim safety-valve eligibility based on

trial testimony that necessarily contradicts the conviction

itself.” Id. at 14a (quoting United States v. De La Torre,

599 F.3d 1198, 1206 (10th Cir.), cert. denied, 562 U.S.

898 (2010)) (brackets in original). The court explained

that because petitioner had “denied his involvement in

a conspiracy both on the witness stand” and in debriefings with the government, “the district court could not

have granted him safety-valve relief without directly

8

undermining the jury’s verdict that he knowingly conspired with” Mendoza-Alarcon. Ibid.

ARGUMENT

Petitioner contends (Pet. 1-2, 8-20) that the court of

appeals erred in determining that he was not entitled to

safety-valve relief under 18 U.S.C. 3553(f ) and that this

Court’s review is necessary to resolve a circuit conflict

on “whether a district court may grant safety-valve relief under [Section] 3553(f ) from a mandatory minimum

sentence when the factual findings necessary to support

such relief are inconsistent with the jury’s verdict,” Pet.

8. Those contentions lack merit. The court of appeals

correctly determined that the district court could not

grant petitioner safety-valve relief based on statements

by petitioner that contradicted the jury’s finding beyond a reasonable doubt that petitioner knowingly participated in a drug-distribution conspiracy. And although

a narrow division of authority exists on the question

presented, that question has arisen infrequently in the

25 years since the safety-valve statute was passed and

is outcome determinative in an exceedingly small set of

drug prosecutions. Further review of the court of appeals’ unpublished decision is therefore unwarranted.

1. a. The court of appeals correctly determined that

petitioner was not eligible for safety-valve relief when a

finding that he made the truthful disclosures required

under Section 3553(f )(5) would necessarily contradict

the jury verdict. Pet. App. 13a-14a. That determination

follows directly from the “non-contradiction principle,”

which “prohibits a sentencing court from finding a fact

that is inconsistent with any of the findings that are necessarily implicit in the jury’s guilty verdict.” United

States v. Slaton, 801 F.3d 1308, 1319 (11th Cir. 2015)

(collecting cases from the First, Fourth, Sixth, Seventh,

9

and Eighth Circuits). Under that principle, the jury’s

“verdict controls unless the evidence is insufficient or

some procedural error occurred; it is both unnecessary

and inappropriate for the judge to reexamine, and resolve in the defendant’s favor, a factual issue that the

jury has resolved in the prosecutor’s favor beyond a reasonable doubt.” United States v. Rivera, 411 F.3d 864,

866 (7th Cir.), cert. denied, 546 U.S. 966 (2005). The

principle respects the jury’s role as a factfinder of constitutional stature, see U.S. Const. Amend. VI, and is

consonant with the distinct standards of proof that govern at the guilt and sentencing phases of federal criminal prosecutions, see United States v. Campos, 362 F.3d

1013, 1016 (8th Cir. 2004) (“It is axiomatic that a fact

proved beyond a reasonable doubt cannot simultaneously

be disproved by a preponderance of the evidence.”).3

The courts of appeals have applied the noncontradiction principle for decades in reviewing multiple aspects

of federal sentencing. The contexts in which they have

done so include findings that district judges make in determining a defendant’s range under the Sentencing

Guidelines, see, e.g., Slaton, 801 F.3d at 1318-1319

In light of these differing standards of proof, the noncontradiction principle is fully consistent with this Court’s precedents establishing that sentencing judges may increase a defendant’s sentence,

within statutory limits, based on facts that a jury declined to find

beyond a reasonable doubt in “return[ing] a general verdict of not

guilty,” United States v. Watts, 519 U.S. 148, 155 (1997) (per curiam). As the Eleventh Circuit has explained, while “a court’s finding that a fact has been proven by a preponderance of the evidence

is consistent with a jury’s finding that the same fact has not been

proven beyond a reasonable doubt,” “if the jury verdict establishes

[that the fact] was proven beyond a reasonable doubt,” “a court

must find that [it] was proven by a preponderance of the evidence.”

Slaton, 801 F.3d at 1319 n.7 (emphasis added).

3

10

(amount of loss); Campos, 362 F.3d at 1015-1016 (drug

quantity); United States v. Weston, 960 F.2d 212, 218

(1st Cir. 1992) (offense-level enhancement); and whether

to sentence outside of the sentencing range established

by the formerly mandatory, and now-advisory, Sentencing Guidelines, see, e.g., United States v. Jackson,

862 F.3d 365, 395 (3d Cir. 2017) (downward variance);

United States v. Curry, 461 F.3d 452, 460-461 (4th Cir.

2006) (same); United States v. Costales, 5 F.3d 480, 487488 (11th Cir. 1993) (downward departure for minimal

role). Applied here, the principle yields a straightforward conclusion—namely, that because the jury necessarily found that petitioner knowingly participated in a

drug conspiracy when it returned a guilty verdict, Pet.

App. 12a-13a, a finding that petitioner “truthfully provided” information when he denied such knowledge

during his debriefing and trial testimony, 18 U.S.C.

3553(f )(5), would impermissibly contradict the verdict.

Pet. App. 14a, 18a.

Nothing in 18 U.S.C. 3553(f ) suggests that Congress

intended to authorize district courts to violate the noncontradiction principle in authorizing a “limited” set of

offenders, H.R. Rep. No. 460, 103d Cong., 2d Sess. 5-6

(1994), to obtain safety-valve relief. To the contrary,

Congress tied a defendant’s eligibility for such relief directly to the Sentencing Guidelines, see 18 U.S.C.

3553(f )(1) and (4), and provided that a finding of safetyvalve eligibility would result in a sentence below the

statutory minimum but within the guidelines range,

18 U.S.C. 3553(f ). When Congress enacted Section

3553(f ) in 1994, see Pub. L. No. 103–322, Tit. VIII,

§ 80001(a), 108 Stat. 1985, courts were applying the noncontradiction principle in reviewing district courts’ factual findings supporting the application of the then-

11

mandatory guidelines. See, e.g., Costales, 5 F.3d at 484488; Weston, 960 F.2d at 218. Yet Congress provided no

basis for concluding that it disapproved of that application of the general principle to such determinations.

See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184185 (1988) (“We generally presume that Congress is

knowledgeable about existing law pertinent to the legislation it enacts.”).

Moreover, departing from the noncontradiction principle for purposes of Section 3553(f )(5) would lead to

anomalies that Congress could not have intended. As

the Seventh Circuit has explained, it would lead to the

“illogical” conclusion that “defendants could use the

very story which led to their conviction as a means of

obtaining a reduced sentence.” United States v. Thompson, 106 F.3d 794, 801 (1997) (Veronica Thompson).

And it would mean that, while findings the jury necessarily made in determining guilt beyond a reasonable

doubt could have preclusive effect in a separate civil suit

against the defendant, those same findings would not

bind the district judge at the defendant’s own sentencing hearing. See 18B Charles Alan Wright et al., Federal Practice and Procedure § 4474, at 437 (2d ed. 2002)

(“A civil plaintiff now is allowed to rest issue preclusion

on the defendant’s criminal conviction.”); cf. Allen v.

McCurry, 449 U.S. 90, 95 n.6 (1980). The court of appeals correctly declined to endorse an interpretation of

Section 3553(f ) that would lead to such outcomes.

b. Petitioner contends (Pet. 16-17) that a district

court may contradict a jury’s findings in this context because Section 3553(f ) assigns the task of determining a

defendant’s safety-valve eligibility to “the court,” not

the jury. But that assignment is not particularized to

the truthfulness criterion, and a defendant’s safety-

12

valve eligibility turns on aspects of a defendant’s background and the circumstances of the offense that a jury

will not necessarily have resolved—and may even be

barred from considering—when rendering a guilty verdict. Compare, e.g., 18 U.S.C. 3553(f )(1) (requiring consideration of a defendant’s criminal history), with Fed.

R. Evid. 404(b)(1) (generally barring the introduction of

evidence of a defendant’s past crimes). It was therefore

sensible for Congress to provide that district courts

would resolve those issues at sentencing, especially

where they involve determinations that courts are already called upon to make in calculating the guidelines

range. See 18 U.S.C. 3553(a)(4) (requiring courts to calculate and consider the guidelines range). Nothing in

Congress’s decision to assign the various safety-valve

determinations to the courts as a general matter suggests that, when the jury has spoken to the relevant

facts through its verdict, courts remain free to contradict those findings at sentencing.

Petitioner’s assertion (Pet. 17) that “Congress had

good reason to authorize a district judge to make findings of fact at sentencing independent of the jury’s verdict” is misconceived. The “good reason” that petitioner

offers—that a sentencing “ ‘judge is privy to far more

information than the jury and is therefore in a much different posture to assess the case,’ ” ibid. (quoting United

States v. Sherpa, 110 F.3d 656, 660 (9th Cir. 1996))—is

not limited to Section 3553(f )(5), but would apply equally

both to the other safety-valve criteria and to most other

sentencing determinations. It would render the widely

applied noncontradiction principle largely a nullity, see

Slaton, 801 F.3d at 1319; United States v. Bertling,

611 F.3d 477, 481-482 (8th Cir. 2010), particularly if it

13

applied even in cases, like this one, in which the information available to the court on the relevant point is not

meaningfully different in any respect than the evidence

that the jury considered.

Petitioner relatedly contends that the court of appeals’ decision “is at odds with ‘the long-standing tradition that sentencing is the province of the judge, not the

jury.’ ” Pet. 18 (quoting Sherpa, 110 F.3d at 661). But

the safety-valve statute itself is a narrow exception to

statutory-minimum sentences that depart from the tradition of “discretionary” sentencing (Pet. 18) that petitioner invokes. See Harris v. United States, 536 U.S.

545, 560-561 (2002) (plurality opinion), overruled by Alleyne v. United States, 570 U.S. 99 (2013). That statutory context makes it unlikely that Congress would confer on courts unfettered discretion in determining eligibility for relief—and even less likely that Congress intended for courts to contradict the jury findings that are

often necessary to trigger a statutory-minimum sentence

in the first place. See Alleyne v. United States, 570 U.S.

99 (2013).

Contrary to petitioner’s suggestion (Pet. 18-20), the

court of appeals’ construction of Section 3553(f ) also

does not contravene Congress’s “purpose” of affording

relief to “lower-level [drug] offenders” who did not or

could not provide substantial assistance to the government. Pet. 19. The very cases on which petitioner relies

belie his assertion (ibid.) that “a defendant who exercises his constitutional right to a jury trial will effectively never be eligible for safety-valve relief.” Defendants who exercise their right to a jury trial and are

found guilty can still satisfy Section 3553(f )(5)’s tell-all

requirement, as long as the account that they provide to

14

the government (before or after trial) does not “necessarily contradict[] the conviction.” United States v. De

La Torre, 599 F.3d 1198, 1206 (10th Cir.), cert. denied,

562 U.S. 898 (2010); see United States v. Honea, 660 F.3d

318, 328-330 (8th Cir. 2011) (affirming the district court’s

finding of safety-valve eligibility where the court of

appeals identified “no contradiction between Honea’s

safety-valve statement and the jury’s verdict finding

Honea guilty”). That result is consistent both with the

noncontradiction principle and with this Court’s recognition, in an analogous context, that a jury’s guilty verdict does not invariably entail a finding that a testifying

defendant was untruthful. See United States v. Dunnigan, 507 U.S. 87, 95 (1993) (explaining that, because “an

accused may give inaccurate testimony due to confusion, mistake, or faulty memory,” “not every accused

who testifies at trial and is convicted will incur” a guidelines enhancement for perjury).4

Nor is anything “bizarre” (Pet. 20) about treating a

defendant who asserts his innocence and delivers trial

testimony that is rejected by a factfinder of constitutional stature differently from an offender who accepts

imposition of punishment from the outset and provides

testimony credited by the only factfinder (the judge)

to hear it. Cf. United States v. Susi, 674 F.3d 278, 288

Dunnigan also refutes the suggestion of amici that the court of

appeals’ construction of Section 3553(f ) “unconstitutionally burden[s] defendants’ right to testify at trial.” FAMM Amicus Br. 6. If

the risk of a sentence enhancement for perjury does not impermissibly interfere with the right to testify, see Dunnigan, 507 U.S. at

96-98, then neither does the possibility that trial testimony may

limit defendants’ ability to obtain relief from an otherwise applicable statutory-minimum sentence.

4

15

(4th Cir. 2012) (reaffirming that the need to avoid unwarranted sentencing disparities under 18 U.S.C. 3553(a)(6)

“does not require courts to sentence similarly individuals who go to trial and those who plead guilty,” because

“[t]hey are not similarly situated for sentencing purposes”). The “nonsensical” rule (Pet. 20) would instead

be one that allows district courts to sustain the jury’s

guilty verdict—including the jury findings that trigger

a statutory-minimum sentence—yet treat the defendant’s denial of the conduct found by the jury as truthful

for purposes of sentencing. See Veronica Thompson,

106 F.3d at 800-801.

2. Petitioner contends (Pet. 8-16) that this Court’s

review is warranted to resolve a circuit conflict about

“whether a district court may grant safety-valve relief

under [Section] 3553(f ) from a mandatory minimum

sentence when the factual findings necessary to support

such relief are inconsistent with the jury’s verdict.”

Pet. 8. Although a narrow division in the courts of appeals exists on that question, petitioner overstates both

the extent of the disagreement and the frequency with

which the question presented arises and is determinative of an offender’s eligibility for the safety valve. The

Court’s review is therefore unwarranted at this time.

a. Contrary to petitioner’s assertion (Pet. 8), since

the enactment of Section 3553(f ) in 1994, only two courts

of appeals—the Ninth and the Tenth Circuits—have

squarely resolved the question presented.

In De La Torre, the Tenth Circuit principally determined that district courts are “not categorically precluded from considering a defendant’s trial testimony in

determining whether he” has truthfully provided the government information under Section 3553(f )(5). 599 F.3d

at 1207 (emphasis added). The court recognized that

16

“[n]o reasonable defendant could claim safety-valve eligibility based on trial testimony that necessarily contradicts the conviction itself.” Id. at 1206. But it stated

that, because it was “conceivable that a fact-finder could

believe De La Torre’s [trial] testimony without necessarily contradicting” the jury’s verdict, De La Torre

was entitled to an opportunity to prove on remand that

he had “ ‘truthfully and fully disclosed everything he

knew,’ ” through that testimony or otherwise. Id. at

1206-1207 (citation omitted). The court of appeals in

this case relied on Del La Torre’s reasoning to determine that petitioner was ineligible for relief under Section 3553(f ), observing that the district court could not

have granted such relief “without directly undermining

the jury’s verdict that [petitioner] knowingly conspired

with” co-defendant Mendoza-Alarcon. Pet. App. 14a.

As the court of appeals acknowledged (Pet. App. 14a),

the approach it followed here “diverges from” the Ninth

Circuit’s decision in United States v. Sherpa, supra. In

Sherpa, the district court awarded safety-valve relief to

a defendant who was charged with federal drug offenses

for bringing a suitcase containing three kilograms of

heroin into the United States, denied at trial that he

knew what was in the suitcase, and was found guilty by

the jury. 110 F.3d at 658-659. The Ninth Circuit upheld

the application of the safety valve on appeal, stating that

“the safety valve requires a separate judicial determination of compliance [with Section 3553(f )(5),] which need

not be consistent with a jury’s findings.” Id. at 662.

Contrary to petitioner’s contention (Pet. 11-12), however, the Seventh Circuit’s decision in United States v.

Thompson, 76 F.3d 166 (1996) (Shirley Thompson), does

not demonstrate that court’s agreement with the Ninth

Circuit’s approach in Sherpa. The district court in

17

Shirley Thompson granted safety-valve relief to a defendant who, both before and after being convicted at

trial, provided the government with “all information

and evidence she had concerning the offense.” Id. at

171. In affirming the sentence, the Seventh Circuit relied on expert testimony concerning the defendant’s diminished capacity that was offered at sentencing to conclude that the defendant was “forthright within the

range of her ability.” Ibid. But the court did not identify any inconsistency between the jury’s verdict and

the information the defendant proffered, and thus had

no occasion to address the effect of any such inconsistency on eligibility for safety-valve relief. Ibid.5

The Seventh Circuit’s subsequent decisions strongly

suggest that, if faced with such a contradiction, it would

adopt the same approach as the Tenth Circuit did here.

In Veronica Thompson, supra, the Seventh Circuit affirmed the denial of safety-valve relief to defendants

who at trial denied their involvement in a drug conspiracy and later “told the same story” to the judge in seeking relief. 106 F.3d at 801. The court explained that the

sentencing judge “was entitled to reject the claim of

non-involvement” in the wake of the jury’s verdict, and

that “[i]t would be illogical if defendants could use the

very story which led to their conviction as a means of

obtaining a reduced sentence.” Ibid. And more generally, the Seventh Circuit has applied the noncontradiction principle in multiple sentencing contexts, recognizing that “it is both unnecessary and inappropriate for

the judge to reexamine, and resolve in the defendant’s

Contrary to petitioner’s suggestion (Pet. 11), the opinion in

Shirley Thompson did not indicate that the defendant testified at

trial at all, much less that “[s]he testified that she was unaware that”

a bag she handled had “contained cocaine.”

5

18

favor, a factual issue that the jury has resolved in the

prosecutor’s favor beyond a reasonable doubt.” Rivera,

411 F.3d at 866; see United States v. Fuller, 532 F.3d

656, 664 (7th Cir. 2008).

Finally, United States v. Reynoso, 239 F.3d 143

(2d Cir. 2000), did not implicate any question concerning the effect of a jury verdict on a defendant’s safetyvalve eligibility, because it did not involve a jury trial at

all. Rather, the defendant in Reynoso pleaded guilty

and then sought safety-valve relief despite making a factual proffer to the government that was not supported

by the objective facts. Id. at 145. The sole question on

appeal was “whether a defendant who provided objectively false information to the Government nevertheless

satisfies the requirement set forth in [Section] 3553(f )(5)

if he or she subjectively believed the information” to be

true. Id. at 144. As petitioner acknowledges (Pet. 1314), in answering that question, the Second Circuit expressed disagreement with the decisions in Sherpa and

Shirley Thompson only “to the extent” that they were

“arguably on point.” Reynoso, 239 F.3d at 149; see id.

at 149-150. But the Second Circuit also made clear that

it did not believe those decisions were germane to the

question before it. Id. at 150; see Pet. 13 (recognizing

that the Second Circuit “[f ]or the most part * * * distinguished the [other] cases on their facts”).

b. The narrow disagreement over the question presented does not warrant the Court’s review at this time,

because the question arises infrequently and is rarely

determinative of a defendant’s safety-valve eligibility.

Contrary to petitioner’s contention (Pet. 14-15), the

answer to the question presented is dispositive of a defendant’s eligibility for safety-valve relief in an exceed-

19

ingly narrow set of federal drug prosecutions. Specifically, that answer is outcome determinative only in the

small percentage of cases where a defendant (1) is subject to a statutory-minimum sentence under particular

drug statutes; (2) pleads not guilty and elects a jury

trial, cf. Pet. 15 (noting that only two percent of federal

defendants go to trial); (3) is convicted; (4) satisfies the

first four criteria for safety-valve criteria eligibility in

Section 3553(f )(1)-(4); and (5) offers statements at trial

or in debriefings with the government that necessarily

contradict the jury’s verdict; and, finally, (6) the district

court—despite having denied a motion for judgment of

acquittal—would nonetheless find that the defendant

has satisfied Section 3553(f )(5)’s tell-all requirement.

This last circumstance alone confirms the infrequency

with which the question presented will matter. As one

district court to make such a finding recognized (in 2001),

“it will be extremely rare for a judge to credit [a defendant’s] assertion of innocence after a guilty verdict.”

United States v. Freeman, 139 F. Supp. 2d 1364, 1365

(S.D. Fla. 2001), aff ’d, 37 Fed. Appx. 505 (11th Cir. 2002)

(Tbl.).

Indeed, in the 25 years since Congress enacted the

safety-valve statute, only two courts of appeals—the

Ninth and Tenth Circuits—have squarely resolved

whether a district court may find that a defendant’s disclosures satisfy Section 3553(f )(5) when that finding

would contradict the jury’s verdict. See pp. 15-18,

supra. Although petitioner cites several decisions that

involved similar fact patterns, the courts in those cases

had no occasion to resolve the question presented, either because they found no conflict between the verdict

and the defendant’s disclosures, see Honea, 660 F.3d at

329-330, or because they concluded that the sentencing

20

court was permitted—even if not obligated—to reject a

safety-valve claim, see United States v. Moreno-Gonzalez,

662 F.3d 369, 375 (5th Cir. 2011); United States v.

Aguilera, 625 F.3d 482, 488 (8th Cir. 2010); Veronica

Thompson, 106 F.3d at 800-801. Petitioner identifies no

decisions at all raising the question (or variations of it) in

the First, Third, Fourth, Sixth, and D.C. Circuits. Petitioner suggests in a footnote (Pet. 15 n.3) that the issue

is not often discussed in reported opinions “because

courts typically impose sentences orally.” But he provides no reason to believe that oral sentence imposition

is more common in the context of this sentencing issue

than in the context of a host of other federal sentencing

issues that reach and result in opinions by appellate

courts—including this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

SCOTT A.C. MEISLER

Attorney

NOVEMBER 2019