United States v. Reynaldo Ortiz , 775 F.3d 964 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-3748 & 14-1300
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REYNALDO ORTIZ,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cr-00686-1 — Robert W. Gettleman, Judge.
____________________
ARGUED OCTOBER 30, 2014 — DECIDED JANUARY 12, 2015
____________________
Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.
TINDER, Circuit Judge. Reynaldo Ortiz pleaded guilty to
conspiracy to possess heroin with the intent to distribute, see
21 U.S.C. §§ 841(a)(1), 846, and received the statutory mini-
mum prison sentence of 120 months. He argues that his co-
operation with law enforcement after his arrest qualified
him for “safety valve” relief from the statutory minimum.
See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The district court de-
cided, however, that Ortiz’s cooperation did not amount to
2 Nos.13-3748 & 14-1300
the full and truthful proffer of information required for ap-
plication of the safety valve. We affirm.
I. BACKGROUND
In September 2011, a confidential informant reported to
agents of the Drug Enforcement Administration (DEA) that
Ortiz and his wife Linda Vargas-Jurado had offered the in-
formant $10,000 to drive a truck containing drugs from the
Mexican border to Chicago. The informant refused to travel
to Mexico but agreed to transport the truck from Texas for
$5,000. Ortiz then provided the informant with $1,000 for
general travel expenses and the purchase of a cell phone and
an airplane ticket to Texas. In cooperation with federal
agents, the informant completed the trip from Texas to Chi-
cago and delivered the truck to DEA possession. DEA agents
found two kilograms of heroin hidden in a fire extinguisher
inside the truck.
When Ortiz and Vargas-Jurado did not hear from the in-
formant on his arrival as planned, they began a frantic
search for the informant and the truck. On September 30,
2011, at the same time DEA agents were searching the truck,
Vargas-Jurado called the informant to ask where he was and
told him that she needed the truck to deliver it, but did not
disclose to whom it was to be delivered. Then, on October 2,
Ortiz visited the residence of the informant’s family and told
them that he and his wife needed the truck immediately.
Ortiz insists that no threats were made, though the govern-
ment maintains otherwise. The same day, Vargas-Jurado
drove the couple’s 16-year-old son and one of his friends to
an area where the informant lived, and the friend shot
someone matching the informant’s description (but actually
an innocent bystander) multiple times. The next day, Octo-
Nos. 13-3748 & 14-1300 3
ber 3, the informant called Ortiz and Vargas-Jurado under
the supervision of DEA agents and reported that he had
been arrested. Ortiz told the informant that he could see the
truck in a police parking lot, and officers confirmed that
Ortiz and Vargas-Jurado had sped up to the parking lot in a
vehicle matching the description of the one used in the
shooting. As the couple drove up, Vargas-Jurado hung out
the window attempting to take pictures of the truck on a cell
phone. Ortiz and Vargas-Jurado were arrested shortly there-
after.
After the arrests, officers separated Ortiz and Vargas-
Jurado for questioning. Special Agent Louis Gade inter-
viewed Ortiz and recorded notes from the interview. Ac-
cording to those notes, Ortiz stated that he and his wife ini-
tially had been asked by his brother-in-law, Santiago Vargas,
to carry drugs to Chicago. Ortiz said that they had refused
the offer but that he then recruited a friend—the confidential
informant—to transport the drugs. When the informant
went missing, Ortiz explained, he and his wife searched for
the truck under the direction of an associate of Vargas who
communicated with the couple through increasingly threat-
ening phone calls. Ortiz provided the first name of the asso-
ciate and his phone number, and Vargas-Jurado later pro-
vided his full name, Hector Alcantra-Emeterio.
During Ortiz’s interview, another officer told Agent
Gade that Vargas-Jurado had admitted to her role in the
shooting. When Gade asked Ortiz about the shooting, Ortiz
denied any involvement and claimed that his wife had noth-
ing to do with it. Ortiz admitted, however, to visiting the in-
formant’s family on October 2 and 3, 2011, to urge them to
alert the informant that Ortiz and his wife needed the truck
4 Nos.13-3748 & 14-1300
immediately. He claimed that he and his wife acted out of
fear for their safety because Alcantra-Emeterio had threat-
ened them that “something will go wrong if he didn’t get his
vehicle back.” Ortiz said that he was estranged from his son,
who he believed had “some dealings” with Alcantra-
Emeterio and had joined the Latin Kings.
After being charged with conspiracy to distribute heroin,
Ortiz moved to suppress his post-arrest statements on the
basis that he had been arrested without probable cause and
that he had not been given Miranda warnings before being
interviewed. In support of that motion, Ortiz provided an
affidavit asserting that he was told to answer questions
without counsel and that he made inculpating statements
before signing a form waiving his right to an attorney. At an
evidentiary hearing, however, Agent Gade testified that, be-
fore Ortiz made any inculpating statements, Gade read him
the Miranda warnings and he waived his right to an attorney
orally and in writing. Gade added that the information Ortiz
provided about who he believed to be the source of the nar-
cotics helped with the investigation. The district court cred-
ited Gade’s testimony and denied Ortiz’s motion to sup-
press.
In March 2013, nearly a year and a half after being indict-
ed, Ortiz pleaded guilty without a written plea agreement. A
probation officer calculated an advisory guideline impris-
onment range of 151 to 188 months. That calculation includ-
ed an offense level increase of two for obstruction of justice
because, in the probation officer’s view, Ortiz made materi-
ally false statements in the affidavit he submitted in support
of his motion to suppress. The probation officer also recom-
Nos. 13-3748 & 14-1300 5
mended that the court refuse to apply a sentencing reduction
for acceptance of responsibility on the same basis.
At Ortiz’s sentencing in November 2013, the district
court rejected the probation officer’s recommendations re-
garding obstruction of justice and acceptance of responsibil-
ity. The court credited Ortiz’s account that his actions were
“aberrant in the sense that [he and his wife are] not drug
dealers” and were motivated by threats against him and his
family. In light of this “imperfect coercion,” the court decid-
ed that an increase for obstruction was not appropriate. Af-
ter the court ruled on obstruction, the government did not
oppose application of the reduction for acceptance of re-
sponsibility. The court recalculated the advisory imprison-
ment range as 87 to 108 months—below the statutory mini-
mum of 120 months.
Ortiz then urged the district court to apply § 5C1.2,
which allows for imposition of a sentence “without regard to
any statutory minimum sentence” if the court finds that the
defendant satisfies the five criteria in 18 U.S.C. § 3553(f).
Those criteria include that “the defendant did not use vio-
lence or credible threats of violence or possess a firearm or
other dangerous weapon (or induce another participant to
do so) in connection with the offense,” 18 U.S.C. § 3553(f)(2);
U.S.S.G. § 5C1.2(a)(2), and 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).
The government responded that § 5C1.2 did not apply
because Ortiz used threats of violence against the inform-
6 Nos.13-3748 & 14-1300
ant’s family and did not “come in to the government’s office
and give a full safety valve proffer.” The government ex-
plained that it suspected—based on a police report from the
informant’s mother—that Ortiz brought another man with
him during his visit to the informant’s family, and that the
other man called someone in Mexico who threatened to kill
the informant and his family if the truck was not returned.
In response, Ortiz challenged the police report as not credi-
ble. Additionally, in regard to his failure to come in for a
proffer, Ortiz argued that he had provided everything he
knew in his post-arrest statements. The district court asked
the government what other information it would look for in
a full proffer, and the prosecutor answered that he could not
be sure because Ortiz never came in for additional question-
ing. He added that it remained unclear who the drugs were
supposed to go to and who all was involved in arranging the
drug transaction.
The district court concluded that, regardless of threats
Ortiz may have made, he had not “proffered the type of in-
formation that 5C1.2 contemplates.” The court explained: “It
isn’t just cooperation. We get a lot of cooperating folks in the
sense that they … could wear a wire, they could arrange a
deal or get some information about something that hap-
pened. They still don’t get the safety valve because they ha-
ven’t actually proffered their entire knowledge of the of-
fense.” The court added: “Saying when you get arrested, you
know, ‘I’ll cooperate’ or even shortly after, ‘I’ll cooperate,’
that’s a lot different than coming in and going through all
the matters that [the prosecutor] just mentioned. So I cannot
say there’s a safety valve here.” The court thus rejected ap-
plication of the safety valve and imposed the statutory min-
imum of 120 months’ imprisonment.
Nos. 13-3748 & 14-1300 7
Fourteen days after sentencing, on December 6, 2013,
Ortiz moved for a reduced sentence under Federal Rule of
Criminal Procedure 35, offering to present himself for a full
proffer of information and arguing that the court failed to
address his mitigating arguments. On January 22, 2014, the
district court held a hearing on the motion. At the hearing,
the government explained that, having met with Ortiz to
hear his proffer, it refused to move for a reduced sentence
under Rule 35(b) because Ortiz had not provided any infor-
mation beyond that provided in his initial statement. The
court then denied Ortiz’s motion, reasoning that, without a
motion for a reduction from the government, the court had
no authority to reduce Ortiz’s sentence under Rule 35. Ortiz
appeals both the original judgment against him and the de-
nial of his Rule 35 motion.
II. ANALYSIS
Ortiz’s primary argument on appeal is that the district
court erred in concluding that he did not satisfy the re-
quirements of § 5C1.2(a)(5) by providing full and truthful
information about his offense. He emphasizes that Agent
Gade testified that the information he provided after his ar-
rest was helpful to the investigation. He maintains that he
did not have any additional information about the recipient
of the heroin or any other aspect of the offense. The com-
pleteness of his initial statement is confirmed, he argues, by
the fact that nothing useful was gleaned from his post-
sentencing proffer.
To be eligible for safety-valve relief, Ortiz had to prove
by a preponderance of the evidence that he provided the
government with “all information” he knew about his of-
fense or related to the same course of conduct or common
8 Nos.13-3748 & 14-1300
scheme or plan. See United States v. Acevedo-Fitz, 739 F.3d
967, 970 (7th Cir. 2014); United States v. Olivas-Ramirez, 487
F.3d 512, 517 (7th Cir. 2007). “A defendant is not entitled to
the safety valve when he provides only limited information
instead of complete disclosure.” Acevedo-Fitz, 739 F.3d at 972;
see United States v. Montes, 381 F.3d 631, 636 (7th Cir. 2004)
(holding that the “plainly broad language [of § 5C1.2(a)(5)]
suggests that any and all information that the defendant
possesses concerning the offense must be provided to the
Government”) (quotation marks omitted). We review for
clear error the district court’s findings regarding Ortiz’s eli-
gibility for the safety valve. See Acevedo-Fitz, 739 F.3d at 970;
Olivas-Ramirez, 487 F.3d at 516.
Ortiz has presented no persuasive reason to find clear er-
ror here. The district court gave a nuanced explanation of
why it found that Ortiz had offered some cooperation but
did not provide a full proffer of all information he knew.
Ortiz’s mere assertion that he does not have additional in-
formation is not enough to undermine the court’s finding.
See United States v. Nunez, 627 F.3d 274, 280 (7th Cir. 2010)
(“A defendant ‘cannot meet [the safety valve] burden if the
government challenged the truthfulness, accuracy, or com-
pleteness of his statements and he produced nothing to per-
suade the district court that his disclosures were truthful and
complete.’”) (quoting United States v. Martinez, 301 F.3d 860,
866 (7th Cir. 2002)). As the government notes, there were
many facts left unknown here, including where the truck
was supposed to be delivered if recovered and who would
pick it up, and Ortiz did not assist the government’s investi-
gation during the two years that passed from his initial post-
arrest statements in October 2011 until his sentencing in No-
vember 2013. Ortiz emphasizes that the information he pro-
Nos. 13-3748 & 14-1300 9
vided after his arrest proved useful to the investigation, but
for purposes of the safety valve, “information need not nec-
essarily be useful to the government, as long as a defendant
made a good faith effort to cooperate fully.” United States v.
Corson, 579 F.3d 804, 814 (7th Cir. 2009). The district court
committed no clear error in finding that Ortiz’s failure to
present himself for additional proffers of information un-
dermined his assertion of full, good faith cooperation.
We addressed a similar situation in United States v. Gal-
braith, 200 F.3d 1006, 1016 (7th Cir. 2000). There, as with
Ortiz, Galbraith gave an initial statement to law enforcement
after his arrest but did not give any additional proffers ex-
panding on that statement. Id. Information from Galbraith’s
codefendants, however, suggested that there was more to
the offense than Galbraith let on. Id. The district court thus
found that Galbraith “did not truthfully provide all infor-
mation he had,” and we upheld that finding. Id. The same
analysis applies here, where the government’s investigation
raised questions about the destination for the drugs and pos-
sible threats to the informant’s family, and yet Ortiz did not
supplement his initial statement before sentencing.
Ortiz contends that his post-sentencing proffer entitled
him to the safety valve, but we disagree. The safety-valve
provisions clearly require that a defendant’s proffer of in-
formation occur “not later than the time of the sentencing
hearing.” Moreover, as the government emphasizes, by the
time Ortiz actually presented himself for a proffer, more
than 14 days had passed since sentencing. At that point, the
district court lacked jurisdiction to reduce Ortiz’s sentence
under Rule 35 without a motion from the government.
10 Nos.13-3748 & 14-1300
See United States v. Smith, 438 F.3d 796, 799 (7th Cir. 2006);
United States v. Salinas, 365 F.3d 582, 586 (7th Cir. 2004).
There is also evidence that, just a day before Ortiz’s wife
and son were involved in trying to shoot the informant,
Ortiz brought a man to the informant’s family who, through
a phone call, threatened death to the informant and his fami-
ly. Using credible threats of violence in connection with an
offense disqualifies a defendant from safety-valve relief, 18
U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2), and we have up-
held even a single intimidating confrontation as enough to
constitute a credible threat, see United States v. Johnson, 497
F.3d 723, 726 (7th Cir. 2007). The district court had no need
to make formal findings about the credibility of the govern-
ment’s evidence about the threats given its conclusion that
Ortiz failed to make a full proffer, and we express no opin-
ion about the evidence’s reliability. But we note that the al-
leged threats, if substantiated, would have provided an al-
ternative ground for denying safety-valve relief.
Lastly, Ortiz argues that the district court failed to con-
sider his mitigating arguments related to the factors in 18
U.S.C. § 3553. But the district court properly refused to apply
the safety valve, so the court lacked discretion to impose a
sentence below the statutory minimum. See United States v.
Zuno, 731 F.3d 718, 724 (7th Cir. 2013); United States v. Bruck-
er, 646 F.3d 1012, 1016 (7th Cir. 2011). Additionally, because
the statutory minimum controls, a remand for further con-
sideration of sentencing factors could not result in a lesser
sentence. See United States v. Douglas, 569 F.3d 635, 636 (7th
Cir. 2009).
Accordingly, Ortiz’s sentence is AFFIRMED.