United States v. Jose Luis Montes , 151 F. App'x 846 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 27, 2005
No. 05-10575 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00172-CR-ORL-18-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS MONTES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 27, 2005)
Before ANDERSON, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Jose Luis Montes directly appeals his 60-month sentence for possession with
intent to manufacture and manufacturing 100 or more marijuana plants, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii). Montes argues on appeal that
the government breached its promise in the parties’ plea agreement not to oppose
sentencing at the low end of Montes’s guideline range by informing the district
court that Montes did not qualify for sentencing under the safety-valve provisions
in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Montes further argues that the
district court committed reversible error in concluding that he was not eligible for
safety-valve relief. For the reasons set forth more fully below, we affirm.
A federal grand jury returned an indictment, charging Montes with the
above-referenced possession offense, along with conspiracy to manufacture and
possess with intent to manufacture 1,000 or more marijuana plants, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), and 846. Montes subsequently entered into
a written plea agreement with the government, in which he promised to plead
guilty to the possession charge, in exchange for the government agreeing to
dismiss the conspiracy charge.
As part of this agreement, the government also promised that:
At the time of sentencing, and in the event that no adverse information
is received suggesting such a recommendation to be unwarranted, the
United States will not oppose the defendant’s request to the [c]ourt
that the defendant receive a sentence at the low end of the applicable
guideline range, as calculated by the [c]ourt. The defendant
understands that this recommendation or request is not binding on the
[c]ourt, and if not accepted by the [c]ourt, the defendant will not be
allowed to withdraw from the plea.
2
Montes, in turn, acknowledged that he was entering into the agreement and
pleading guilty freely and voluntarily, without reliance on any promises not
contained in the agreement, and without threats, force, intimidation, or coercion.
Montes also admitted to the following facts:
On or about July 27, 2004 . . . Montes, did knowingly and
intentionally possess and control a hydroponic marihuana grow
facility in a residential home. Said residential home is located at 912
Quinn Street Southeast, Palm Bay, Brevard County, Florida. The
purpose of the facility was to manufacture marihuana. The total
number of marihuana plants that [Montes] is responsible for is 151.
Finally, this plea agreement contained a sentence-appeal waiver, whereby Montes
agreed that, assuming the government did not appeal, he was waiving his right to
appeal his sentence, directly or collaterally, including a challenge to the
applicability of the safety-valve provisions contained in § 3553(f) and § 5C1.2,
“except in the following situations: (a) an upward departure by the sentencing
judge; (b) a sentence above the statutory maximum; or (c) a sentence in violation
of other law apart from the sentencing guidelines.”
During Montes’s plea colloquy, he again confirmed that the plea agreement
contained the entire agreement between himself and the government. Montes then
informed the magistrate judge who was conducting the hearing that, due to his lack
of a criminal history, he likely would qualify for safety-valve relief and, thus, be
eligible for sentencing below his, otherwise applicable, mandatory minimum
3
statutory sentence. The government responded that it did not have all of the
information necessary to determine whether Montes qualified for safety-valve
relief, and that the parties had no agreement concerning the applicability of this
relief. Montes replied that he (1) had mentioned safety-valve relief to clarify for
the record that he was not certain if he would qualify for it, and (2) understood that
the parties had no agreements that were not contained in the plea agreement.
The magistrate also reviewed with Montes during this plea colloquy his
waiver of his right to appeal his sentence, including explaining that he was waiving
his right to attack his sentence directly or collaterally, and the exceptions under
which Montes still could appeal his sentence. Montes, in turn, agreed that he was
freely and voluntarily waiving this appellate right.1 On the magistrate’s
recommendation, the district court ultimately accepted Montes’s plea and
adjudicated him guilty.
A probation officer then prepared a presentence investigation report (“PSI”),
which included that, in July 2004, a confidential informant (“CI”) informed agents
with the Drug Enforcement Administration (“DEA”) about a marijuana-growing
operating that the CI had seen in Montes’s home in Palm Bay, Florida. The DEA
1
In agreeing that he was waiving his right to appeal his sentence, Montes also explicitly
acknowledged that he was agreeing to waive his rights to contest the constitutionality of the
federal guidelines and argue that the court illegally sentenced him based on judicially determined
facts.
4
agents obtained and executed a search warrant for Montes’s home. During this
search, the DEA agents recovered from the garage and other rooms 151 marijuana
plants and an extensive hydroponic-marijuana-cultivation facility. Based on
information from the CI, along with the DEA agents’ personal observations of
other persons entering and leaving Montes’s home, including delivering suspected
marijuana-growing supplies on one occasion, the agents also determined that
Montes had associated with other persons involved with growing marijuana.
Moreover, the agents discovered in the homes of these other marijuana growers
similar hydroponic-marijuana-cultivation facilities.
The probation officer concluded that Montes was responsible for the 151
marijuana plants that DEA agents recovered from his home. The officer, therefore,
recommended that Montes’s offense level be set at 16, pursuant to
U.S.S.G. § 2D1.1(c)(12) (the guideline for offenses involving at least 10, but less
than 20 kilograms of marijuana). The probation officer also recommended a three-
level adjustment of this offense level, pursuant to U.S.S.G. § 3E1.1(a), for
acceptance of responsibility. With an adjusted offense level of 13, and a criminal
history category of I, Montes’s resulting guideline range was 12 to 18 months’
imprisonment. However, because Montes’s mandatory minimum statutory
sentence was 60 months’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(B), this
5
higher sentence became his guideline sentence, pursuant to U.S.S.G.
§ 5G1.1(c)(2).2
Montes objected to, among other things, the probation officer’s failure to
recommend sentencing under the safety-valve provisions. Montes argued that the
government had agreed during the plea colloquy that Montes should receive this
relief if he qualified for it. The probation officer responded that Montes had not
yet provided a statement that was necessary for him to meet the criteria for the
application of § 5C1.2 relief.
At sentencing, Montes renewed his objection to the PSI’s and the
government’s failure to recommend that he be sentenced below his mandatory
minimum statutory sentence, pursuant to the safety-valve provisions, arguing that
this failure resulted in a breach of the parties’ plea agreement. In doing so, Montes
conceded that the government had not promised as part of this agreement that it
would not object to safety-valve relief. Montes argued, instead, that, because he
only had pled guilty to the cultivation charge, the government had violated the
terms of their plea agreement by questioning him about the conspiracy and,
therefore, causing him to be ineligible for safety-valve relief.
2
Section 5G1.1(b) provides that “[w]here a statutorily required minimum sentence is
greater than the maximum of the applicable guideline range, the statutorily required minimum
sentence shall be the guideline range.” See U.S.S.G. § 5G1.1(b)
6
The government responded that it had not asked Montes to admit to
participating in a conspiracy. The government explained that the prosecutor and a
DEA agent had advised Montes and his counsel, following the plea colloquy, that
they had questions about (1) the ownership of the house in which Montes lived and
cultivated the marijuana, (2) how Montes had begun the cultivating operation,
(3) where Montes had obtained the materials for this operation, and (4) the contents
of ledgers that agents recovered from Montes’s home. The government also
informed the court that Montes had failed to “tell all,” as demonstrated by his
“storm[ing] out of the courtroom” during a meeting in which the prosecutor and
case agent were asking him these questions, and his subsequent failure to
reschedule a meeting or, otherwise, to provide a written statement to the court.
Implicitly overruling Montes’s objection to the probation officer’s and the
government’s failure to recommend sentencing under the safety-valve provisions,
the court acknowledged that Montes had not plead guilty to conspiracy. The court,
however, determined that the government’s questions to Montes had had “nothing
to do with the conspiracy.” The court then sentenced Montes to 60 months’
imprisonment, 3 years’ supervised release, and a $100 special assessment fee.3
3
In imposing its sentence, the court noted that, if Montes “s[at] down and qualif[ied] for
safety[-]valve with the government,” the court, instead, would sentence Montes to 15 months’
imprisonment. Subsequent to Montes’s sentencing, we reiterated that the defendant must “tell
all” “not later than the time of the sentencing hearing,” but it clarified that district courts have
7
Montes argues on appeal that the government violated its promise in the
parties’ plea agreement not to oppose sentencing at the low end of Montes’s
guideline range by contending at sentencing that Montes was not eligible for
safety-valve relief. Montes again concedes that the government did not explicitly
promise to recommend that he be sentenced under the safety-valve provisions.
Montes, however, asserts that the government “manipulated [the] situation” by
forcing him to admit to participating in a conspiracy, and then arguing that he did
not qualify for safety-valve relief based on his refusal to make such a concession.
Montes further contends that, under the terms of the parties’ plea agreement, the
government could choose not to endorse his request for safety-valve relief, but it
could not oppose it. Montes concludes that, because a breach of the plea
agreement occurred, we should remand the case for a new sentencing hearing, with
the order that the government “refrain from taking any position on the issue of the
application of the safety valve.”4
the discretion to continue sentencing hearing to give a defendant the opportunity to debrief for
the purpose of qualifying for safety-valve relief. See United States v. Garcia, 405 F.3d 1260,
1274-75 (11th Cir. 2005). However, because Montes did not move for a continuance, and has
not argued on appeal that the court committed reversible error in not continuing his hearing, he
has waived our review of this issue. See United States v. Nealy, 232 F.3d 825, 830-31 (11th Cir.
2000) (holding that an argument not raised in an appellant’s opening brief is deemed waived).
4
As Montes notes, in the event of a breach of a plea agreement, there are two available
remedies: “[t]he court can order specific performance of the agreement or afford the defendant
the opportunity to withdraw the plea.” See United States v. Jefferies, 908 F.2d 1520, 1527 (11th
Cir. 1990).
8
We review de novo whether the government has breached a plea agreement.
United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004) (citing United
States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). The Supreme Court
determined in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d
427 (1971), that, “when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. at 499. Thus,
we have concluded that, “in determining whether the government has breached a
plea agreement, we must first determine the scope of the government’s promises.”
Copeland, 381 F.3d at 1105.
We also have explained that, “[i]n determining the meaning of any disputed
terms in an agreement, the court must apply an objective standard and ‘must decide
whether the government’s actions are inconsistent with what the defendant
reasonably understood when he entered his guilty plea.’” Id. (quotation omitted).
If the language in a plea agreement is ambiguous, we will consider extrinsic
evidence to determine the defendant’s reasonable understanding of the agreement,
and it will read the ambiguous provision against the government. Id. at 1105-06.
On the other hand, if the agreement is not ambiguous, we are “limited to the
unambiguous meaning of the language in the agreement.” Id. at 1106.
9
In Mahique, we examined under plain-error review a defendant’s challenge
to the district court’s refusal to allow him either to withdraw his plea, or to enforce
his plea agreement. Mahique, 150 F.3d at 1331-32. The defendant argued that the
government breached the agreement by opposing his request for, among other
things, to be sentenced under the safety-valve provisions. Id. at 1332. This plea
agreement included the government’s unambiguous promise not to oppose the
defendant’s request to be sentenced under the safety-valve provisions “if he [was]
eligible, and the Court ma[de] appropriate findings regarding the criteria . . ..” Id.
at 1331. We concluded that, because the government’s promise was conditioned
on the defendant being eligible for the safety-valve provisions, and because
eligibility for the safety-valve provisions was dependent on the defendant
truthfully providing to the government all information and evidence he had
regarding the offense—an act that had not occurred—the government did not
breach the agreement by arguing that the defendant was not eligible for safety-
valve relief. Id. at 1332-33.
Similarly, the language in Montes’s plea agreement was unambiguous. Our
review, thus, is limited to its terms. The government promised that, “in the event
that no adverse information [was] received suggesting such a recommendation to
be unwarranted, the United States [would] not oppose the defendant’s request to
10
the Court that the defendant receive a sentence at the low end of the applicable
guideline range, as calculated by the Court.” The government, however, did not
promise to recommend sentencing under the safety-valve provisions. Indeed, the
government explicitly stated during the plea colloquy that it did not have all of the
information necessary to determine whether Montes qualified for safety-valve
relief, and that the parties had no agreement concerning the applicability of this
relief to Montes’s sentence. Montes, as well, conceded during this hearing that the
parties had no agreements that were not contained in the plea agreement.
Furthermore, to the extent Montes’s brief can be construed as arguing that
the government breached the plea agreement by asking him questions relating to
conspiratorial acts that Montes believes fell outside of the conduct to which he
plead guilty, he has failed to cite to a promise in his plea agreement that was
breached. Regardless, as discussed below, to qualify for safety-valve relief, the
defendant, before sentencing, must “truthfully provide[] to the [g]overnment 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.” See
U.S.S.G. § 5C1.2(a)(5). In addition, the defendant has the burden of showing that
he has met all of the safety-valve factors. See United States v. Johnson, 375 F.3d
1300, 1302 (11th Cir. 2004). Montes failed to provide any written statement
11
showing that he satisfied this criteria, or to establish that the court erred in
concluding that the government’s questions as to marijuana cultivation fell outside
the scope of § 5C1.2(a)(2). Thus, under the unambiguous terms of the plea
agreement, the government did not breach the agreement by opposing sentencing
under the safety-valve provisions after determining that Montes did not qualify for
such relief. See Copeland, 381 F.3d at 1106.
As discussed above, in a separate argument, Montes contends that the
district court erred in not sentencing him under the safety-valve provisions.
Montes specifically contends that the court erred in concluding that he failed to
truthfully provide to the government all of the information he had on the offense
without first holding an evidentiary hearing to determine whether Montes had
information that the government was seeking. Montes further asserts that (1) he
was not required to have a “sit down interview” with the government to qualify for
safety-valve relief, (2) the government “sabotaged” the “sit down interview”
Montes did attend by demanding that he provide irrelevant information about a
conspiracy, and (3) the court erroneously relied on the government to decide
whether Montes qualified for safety-valve relief. Finally, Montes concedes that his
plea agreement contained an appeal waiver, but he contends that the waiver is not
applicable because (1) the federal guidelines no longer are mandatory, (2) the court
12
departed upward in sentencing him, and (3) the court violated his constitutional
right to due process by failing to conduct an evidentiary hearing.
The government responds that Montes’s challenge to his sentence should be
dismissed because Montes’s challenge on appeal “falls squarely within” the appeal
waiver contained in his plea agreement. To the extent the government is arguing
that Montes waived his right to raise on appeal his challenge to his sentence, we
review the validity of an appeal waiver de novo. See United States v. Weaver, 275
F.3d 1320, 1333 n.21 (11th Cir. 2001). A sentence-appeal waiver is valid and
enforceable if made knowingly and voluntarily. Id. at 1333 (citing United States v.
Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993)). Thus, a waiver will be
enforced if the government demonstrates either that: “(1) the district court
specifically questioned the defendant about the provision during the plea colloquy,
or (2) it is manifestly clear from the record that the defendant fully understood the
significance of the waiver.” Weaver, 275 F.3d at 1333.
Montes acknowledged in his plea agreement that, assuming the government
did not appeal, he was waiving his right to appeal his sentence, directly or
collaterally, including a challenge to the applicability of the safety-valve provisions
contained in § 3553(f) and § 5C1.2, “except in the following situations: (a) an
upward departure by the sentencing judge; (b) a sentence above the statutory
13
maximum; or (c) a sentence in violation of other law apart from the sentencing
guidelines.” Morever, during the plea colloquy, after the magistrate reviewed with
Montes his sentence-appeal waiver, Montes agreed that he was freely and
voluntarily waiving his right to appeal his sentence, excluding the above-
referenced exceptions. Thus, Montes’s sentence-appeal waiver is enforceable.
In addition, to the extent Montes is arguing that this sentence-appeal waiver
is not applicable to his appeal, this argument is without merit. To the extent
Montes is arguing that his 60-month mandatory minimum statutory sentence
constituted an upward departure—one of the exceptions in his appeal waiver—we
have concluded that:
Application of § 5C1.2 does not . . . result in a departure from the
guidelines range. Rather, application of § 5C1.2 allows a defendant to
be sentenced within the guideline range by granting relief from the
minimum sentence mandated by statute.
See United States v. Cruz, 106 F.3d 1553, 1556 (11th Cir. 1997) (emphasis in
original). Similarly, although Montes is contending that the waiver is inapplicable
because the federal guidelines no longer are mandatory, we have determined that
plea agreement language permitting a defendant to escape an appeal waiver if the
sentence exceeded the maximum permitted by statute did not allow the defendant
to appeal his sentence based on the Supreme Court’s recent decision in United
14
States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).5 See
United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir.), petition for cert. filed,
No. 04-1663 (U.S. June 7, 2005).
Finally, to the extent Montes is arguing that his due-process claim falls
outside the sentence-appeal waiver, we recently have rejected a defendant’s similar
argument that his Booker challenge, that the district court applied the guidelines in
an unconstitutional manner, fell within an exception to his appeal waiver, that is,
that the defendant could appeal a “violation of the law apart from the guidelines.”
See United States v. Grinard-Henry, 399 F.3d 1294, 1297 (11th Cir.), cert. denied,
125 S.Ct. 2279 (2005). We explained in Grinard-Henry that the defendant’s
argument directly involved the application of the sentencing guidelines, and that
the defendant had agreed as part of his plea agreement that his sentence would be
imposed in conformity with the federal guidelines. Id. Here, as well, Montes is
directly challenging the application of the guidelines in appealing the court’s
refusal to sentence him pursuant to the safety-valve provisions.
Regardless, even if we were to conclude that Montes’s waiver was invalid,
5
In Booker, the Supreme Court held that the mandatory nature of the federal guidelines
rendered them incompatible with the Sixth Amendment’s guarantee to the right to a jury trial.
See Booker, 543 U.S. at ___, 125 S.Ct. at 749-51. In a second and separate majority opinion, the
Booker Court also instructed that the federal guidelines are now only advisory. See id. at ___,
125 S.Ct. at 764-65.
15
or that it did not encompass his arguments on appeal, Montes has not shown that
reversible error occurred. When reviewing the denial of safety-valve relief, we
review for clear error a district court’s factual determinations, while we review de
novo the court’s legal interpretation of the statutes and sentencing guidelines.
Johnson, 375 F.3d at 1301. Post-Booker, we continue to review a district court’s
factual determinations for clear error. See United States v. Crawford, 407 F.3d
1174, 1178 (11th Cir. 2005) (reviewing factual findings for minimal-planning
enhancement). We cannot find clear error unless it is “left with a definite and firm
conviction that a mistake has been committed.” Id. at 1177 (quotation omitted).
Section 3553(f) of Title 18 of the United States Code directs district courts
to “impose a sentence pursuant to the guidelines promulgated by the United States
Sentencing Commission . . . without regard to any statutory minimum sentence, if
the court finds at sentencing, after the [g]overnment has been afforded the
opportunity to make a recommendation, that” five of five listed factors are present.
18 U.S.C. § 3553(f). This provision, as well as U.S.S.G. § 5C1.2, which contains
the same list of factors, is commonly called the “safety valve.” Johnson, 375 F.3d
at 1302. It applies to a limited number of crimes, including cultivating of
marijuana, in violation of § 841. Id. Morever, as discussed above, the defendant
has the burden of showing that he has met all of the safety-valve factors. Id.
16
The last safety-valve factor—the only factor at issue in this case—requires
the defendant to show 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);
U.S.S.G. § 5C1.2(a)(5). To satisfy this “tell all” factor, the defendant has an
affirmative responsibility to “truthfully disclose to the government all information
and evidence that he has about the offense and all relevant conduct.” Johnson, 375
F.3d at 1302 (quotation omitted). Thus, it is the offense for which the defendant
has been convicted that determines the scope of information that the defendant
must disclose. Id.In Johnson, we examined a defendant’s challenge to the district court’s
decision not to sentence him under the safety-valve provisions, based on the
court’s finding that the defendant had failed to divulge information about the
intended distribution of the 273 marijuana plants he was cultivating. Id. at 1301-
02. The defendant argued that he provided all of the information necessary
because the scope of information he was required to disclose was properly defined
with reference to the crime of cultivation. Id. at 1302. We determined that, “given
the [] large number of plants, the district court did not err in reasonably inferring
17
that [the defendant] was growing the marijuana for distribution,” and that “[n]o
reasonable law enforcement officer investigating this cultivation offense would
[have] fail[ed] to ask [the defendant] about the intended distribution of such a large
quantity of marijuana.” Id. at 1302-03. We, therefore, concluded that the district
court properly determined that information about the intended distribution related
to the defendant’s offense of conviction, and that it did not err in finding that the
defendant failed to satisfy the “tell all” factor in § 5C1.2(a)(5) by not disclosing
this information. Id. at 1303.
In pleading guilty, Montes agreed that he was responsible for cultivating 151
marijuana plants. The PSI also included that a search of Montes’s home had
revealed an extensive hydroponic-marijuana-cultivation facility, and that DEA
agents had observed other persons entering and leaving Montes’s home carrying
suspected marijuana-growing supplies. Moreover, these DEA agents discovered in
the homes of other marijuana growers similar hydroponic-marijuana-cultivation
facilities. Thus, similar to the scenario in Johnson, it was reasonable for the
government to seek information about (1) the ownership of the house in which
Montes lived and cultivated the marijuana, (2) how Montes had begun the
cultivating operation, (3) where Montes had obtained the necessary materials for
this operation, and (4) the contents of ledgers that agents recovered from Montes’s
18
home. The district court, therefore, did not err in finding, at least implicitly, that
Montes, in refusing to answer any of these questions, failed to satisfy the “tell all”
factor in § 5C1.2(a)(5).6
To the extent Montes also is arguing that the district court committed
reversible error in not conducting an evidentiary hearing before denying him
safety-valve relief, we generally review a district court’s denial of an evidentiary
hearing for abuse of discretion. United States v. Gay, 251 F.3d 950, 951 (11th Cir.
2001). However, when a defendant raises an argument for the first time on appeal,
such as here, our review only is for plain error. United States v. Peters, 403 F.3d
1263, 1270 (11th Cir. 2005). Under plain error review, we
may not correct an error the defendant failed to raise in the district
court unless there is: (1) error, (2) that is plain, and (3) that affects
substantial rights . . .. Even then, [this Court] will exercise [its]
discretion to rectify the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
Id. at 1271 (internal quotations and marks omitted).
6
Although it arguably would have been preferable if the district court had stated
explicitly that it was not sentencing Montes under the “safety valve” provisions because Montes
failed to comply with the “tell all” factor in § 5C1.2(a)(5) by not providing information relating
to his cultivation of marijuana, remand is not necessary here because the evidence in the record
clearly shows that he did not qualify for this relief. Cf. United States v. Reid, 139 F.3d 1367,
1368 (11th Cir. 1998) (vacating and remanding the defendant’s sentences when the defendant
provided information he possessed concerning the criminal activity to authorities, the district
court did not explain why it had concluded that the defendant did not qualify for relief under the
“safety valve” provisions, and the evidence in the record also did not clearly establish that the
defendant did not qualify).
19
Under § 5C1.2(a)(5), “the fact that the defendant has no relevant or useful
other information to provide . . . shall not preclude a determination by the court
that the defendant has complied with this requirement.” See U.S.S.G.
§ 5C1.2(a)(5). However, assuming that Montes could show error and that it was
plain, he has failed to explain why the court’s failure to conduct an evidentiary
hearing affected his substantial rights. Indeed, as discussed above, Montes failed
to submit any evidence from which the court could infer that he either shared with
the government all of the information he had about the offense conduct and related
activities, or that he had no such information. The court, therefore, did not plainly
err in not conducting an evidentiary hearing before deciding not to sentence
Montes under the safety-valve provisions. See Peters, 403 F.3d at 1271.
Accordingly, we conclude that the government did not breach the terms of
the parties’ plea agreement by informing the court that Montes did not qualify for
sentencing under the safety-valve provisions. Furthermore, we conclude that, even
if Montes did not waive his right to appeal his sentence, the district court did not
commit reversible error in concluding that Montes was not eligible for safety-valve
relief. We, therefore, affirm.
AFFIRMED.
20