United States v. Fernando Acevedo-Fitz , 739 F.3d 967 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2424
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERNANDO ACEVEDO-FITZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 00416 — Matthew F. Kennelly, Judge.
ARGUED DECEMBER 17, 2013 — DECIDED JANUARY 7, 2014
Before FLAUM, SYKES, and TINDER, Circuit Judges.
FLAUM, Circuit Judge. Fernando Acevedo-Fitz pleaded
guilty to conspiracy to possess heroin with intent to distribute,
21 U.S.C. § 841(a)(1). The drug quantity was at least a kilo-
gram, and the district court sentenced Acevedo-Fitz to the
corresponding statutory minimum of 120 months’ imprison-
ment after concluding that he was ineligible for the “safety
valve.” See id. § 841(b)(1)(A)(i); 18 U.S.C. § 3553(f).
Acevedo-Fitz had been caught lying during several safety-
2 No. 13-2424
valve debriefings, and on appeal he essentially contends that,
despite his lies, he came clean before sentencing and thus was
entitled to benefit from the safety valve. We conclude, how-
ever, that Acevedo-Fitz forfeited any entitlement to the safety
valve by attempting to secure that benefit through deception.
Moreover, the district court did not believe that Acevedo-Fitz
ever told the entire truth, and that finding is both amply
supported by the record and reason enough to affirm the
defendant’s sentence.
I. Background
After an investigation conducted by the Drug Enforcement
Administration and the Chicago Police Department, the
government filed a criminal complaint in June 2011 charging
Acevedo-Fitz, Luis Gambino, and others with drug crimes
including seven heroin sales totaling 4.75 kilograms during
August through December 2010. The investigation also
revealed a March 2011 transaction involving what was then
believed to be an undetermined quantity of cocaine, but later
was determined to be heroin. Acevedo-Fitz and Gambino came
to the DEA’s attention as a result of the investigation of their
principal customers, Domingo Blount and Gabriel Bridges.
In September of 2011 Acevedo-Fitz was indicted for
conspiracy, 21 U.S.C. §§ 846, 841(a)(1), three substantive counts
of distributing heroin, id. § 841(a)(1), and three counts of using
a communication facility in committing a felony drug crime,
id. § 843(b). Acevedo-Fitz pleaded guilty to the conspiracy, and
the government dropped the remaining charges. In a written,
signed Petition to Enter a Plea of Guilty, Acevedo-Fitz admit-
ted that on “several occasions” from August 2010 through
No. 13-2424 3
February 2011 he and Gambino had distributed varying
quantities of heroin, principally to Domingo Blount and
Gabriel Bridges. Then during the plea colloquy the defendant
admitted—under oath—these same facts.
Three months before sentencing the government submitted
a memorandum arguing that Acevedo-Fitz was ineligible for
the safety valve. The government contended that Acevedo-Fitz
had failed to comply with the requirement that he provide “all
information and evidence the defendant has concerning the
offense or offenses that were part of the same course of
conduct.” The government explained that Acevedo-Fitz had
twice participated in safety-valve debriefings during January
2013 but lied on both occasions. Only when the defendant was
confronted with evidence of his lies, the government contin-
ued, did he admit what investigators already knew. The
government asserted that Acevedo-Fitz could not satisfy his
burden of establishing eligibility for the safety valve because
his disclosures had been untrue and incomplete.
In support of this memorandum, the government attached
the Investigation Report detailing what had occurred during
the two safety-valve debriefings. During the first session
Acevedo-Fitz denied trafficking drugs before June 2011, and he
also denied dealing directly with customers. Only after a
prosecutor confronted him with recorded conversations about
a September 2010 transaction did Acevedo-Fitz admit that
those conversations concerned an order for 1 kilogram of
heroin. The government then ended the session to give
Acevedo-Fitz a chance to review with counsel all of his
conversations recorded during a wiretap.
4 No. 13-2424
During the second debriefing, Acevedo-Fitz stated that he
supplied 1 kilogram of heroin to Gambino on a single occasion
but did not engage in any other drug transactions. Those
assertions cannot be reconciled with the defendant’s admis-
sions before and during the guilty-plea colloquy, and when an
agent challenged his truthfulness, Acevedo-Fitz said that he
needed to listen to the intercepted calls. When the agent
confronted him with the details from his multiple heroin
transactions, Acevedo-Fitz replied, “That’s a lie.” He denied
recollection of five of the transactions but said he “might recall
the details” if the agents would play the intercepted telephone
conversations. During the latter part of the debriefing,
Acevedo-Fitz went so far as to deny even recognizing the name
“Bridges,” despite his earlier written and oral admissions that
Bridges was one of his two principal customers. Before the
debriefing ended, Acevedo-Fitz told agents about the distribu-
tion process, rent payments, and a description of the heroin he
obtained from his suppliers.
Acevedo-Fitz objected to the presentence report and to the
government’s memorandum. He argued that the safety valve
should be applied despite his lies during the two debriefings
because months later, in May 2013, he sent the government a
letter that, on his view, constituted a complete and truthful
disclosure prior to sentencing. In that letter (which counsel
wrote but Acevedo-Fitz signed) the defendant identified his
primary customers and his heroin supplier, admitted his
participation in the eight transactions listed in the complaint,
and described the locations where the transactions were
negotiated and conducted.
No. 13-2424 5
At sentencing the government argued that, even consider-
ing the May 2013 letter in isolation, that document did not
warrant a safety-valve reduction because it lacks details about
relevant conduct. The government added that it no longer
could distinguish the defendant’s truthful admissions from his
lies. Moreover, the government reiterated, Acevedo-Fitz had
been untruthful and uncooperative during the two debriefings,
so much so that he had denied documented offense conduct.
Acevedo-Fitz countered that his statements during the
debriefings were not entirely false and should count for
something because he provided the government with a few
truthful admissions. And in his May 2013 letter, the defendant
continued, he had confessed specific transactions committed
with Gambino, as well as the identity of clients and the basics
of the conspiracy; any missing details, he insisted, were
unimportant. Acevedo-Fitz implored the district court to apply
the safety valve because to do so would lower his guidelines
imprisonment range below the 10-year statutory minimum. (A
defendant who meets the statutory criteria for the safety valve
also receives a 2-level reduction under U.S.S.G. § 2D1.1(b)(16).
See 18 U.S.C. § 3553(f); U.S.S.G. §§ 5C1.2, 2D1.1(b)(16). Without
the 2-level decrease, Acevedo-Fitz faced a total offense level of
31 and an imprisonment range of 108 to 135 months; with the
decrease the range would have been 87 to 108 months).
The district court first concluded that Acevedo-Fitz’s
debriefings “absolutely would not come anywhere close to
being in the ball park of qualifying” him for the safety valve,
particularly since he had denied events which were demon-
strably true. And the May 2013 letter, the court continued, was
technically timely because it was tendered before the sentenc-
6 No. 13-2424
ing hearing yet still was “too little too late, with emphasis on
the too little.” The court noted that, although it was the defen-
dant’s burden to show himself eligible for the safety valve, he
had not given the government all of the information he
possessed and instead had identified only the “bare mini-
mum.”
II. Discussion
On appeal Acevedo-Fitz argues that the district court erred
in finding that he did not qualify for the safety valve. The
defendant contends that his May 2013 letter—which he
tendered to the government before sentencing—fully disclosed
his involvement in the conspiracy, including the identity of
heroin sources and customers, quantities of drugs sold,
compensation structure, and his participation in eight specific
transactions. He insists that this letter cured his earlier lies, and
that there is no evidence that he withheld any information.
Therefore, he argues, his submission was timely and satisfied
the requirements for safety-valve relief. Acevedo-Fitz bore the
burden of proving by a preponderance of the evidence “that he
provided a full and honest disclosure.” United States v. Montes,
381 F.3d 631, 637 (7th Cir. 2004); see United States v. Ramirez, 94
F.3d 1095, 1101 (7th Cir. 1996) (same). We review a district
court’s refusal to apply the safety valve for clear error. United
States v. Corson, 579 F.3d 804, 813 (7th Cir. 2009).
To qualify for the safety valve, a defendant must satisfy five
statutory elements. See 18 U.S.C. § 3553(f). The fifth element is
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
No. 13-2424 7
offense or offenses that were part of the same course of
conduct or of a common scheme or plan.” Id. § 3553(f)(5).
Congress intended that the safety valve be limited to the low-
level defendant who can “demonstrate that he has made a
good faith attempt to cooperate with the authorities.” United
States v. Arrington, 73 F.3d 144, 148 (7th Cir. 1996); see Corson,
579 F.3d at 814; Montes, 381 F.3d at 634; United States v. Marin,
144 F.3d 1085, 1095 (7th Cir. 1998). We have long held the view
that lying is inconsistent with a good-faith effort to cooperate,
and thus a sentencing judge may refuse the safety valve to a
defendant who was caught lying during safety-valve debrief-
ings. See Montes, 381 F.3d at 637 (explaining that defendant’s
“lack of candor was an appropriate fact for the court to
consider in determining eligibility under the safety valve
provision”); United States v. Ponce, 358 F.3d 466, 468 (7th Cir.
2004) (“[A] district court may consider a defendant’s lack of
candor in determining eligibility under the safety-valve
provision.”); United States v. Alvarado, 326 F.3d 857, 861 (7th
Cir. 2003) (“[D]efendants who mislead the government do not
fall within the class that the safety valve statute was intended
to protect: those who genuinely and fully disclose all the
information they possess.”); United States v. Rammuno, 133 F.3d
476, 882 (7th Cir. 1998) (agreeing with district court’s conclu-
sion that defendant who was caught in “lie after lie” had
“forfeited his opportunity to benefit from the Guidelines’
safety valve”).
Acevedo-Fitz essentially asks that we abandon this estab-
lished precedent. His premise is that the timing and truthful-
ness of a defendant’s disclosures are unrelated inquiries. Thus,
Acevedo-Fitz apparently contends, he was free to lie to the
8 No. 13-2424
government so long as, if found out, he retracted his lies and
made a full, truthful disclosure before the sentencing hearing.
That reading of § 3553(f)(5)—that a defendant seeking relief
under the safety valve may lie with impunity right up to the
moment of sentencing—has been accepted by several of our
sister circuits. See Unites States v. Rodriguez, 676 F.3d 183,
190–91 (D.C. Cir. 2012) (concluding that defendant who lies
during safety-valve debriefings remains eligible for relief if he
comes clean before sentencing); United States v. Aidoo, 670 F.3d
600, 610 (4th Cir. 2012) (“[A] defendant’s lies about an unre-
lated matter or later-corrected lies about the offense do not
automatically foreclose application of the safety valve.”);
United States v. Mejia-Pimental, 477 F.3d 1100, 1106 (9th Cir.
2006) (concluding that defendant acts in good faith so long as
his “ultimate proffer is truthful and complete”); United States
v. Gomez-Perez, 452 F.3d 739, 741–42 (8th Cir. 2006) (explaining
that defendant who lies during safety-valve debriefings still is
eligible for relief if sentencing judge is persuaded that last
version is truthful and complete); United States v. Brownlee, 204
F.3d 1302, 1304 (11th Cir. 2000) (explicitly rejecting our
conclusions that defendants who seek safety valve must make
good-faith effort to cooperate with government, and that lies
are not consistent with good faith); United States v. Schreiber,
191 F.3d 103, 106 (2d Cir. 1999) (“[T]he text [of § 3553(f)(5)]
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.”).
None of these decisions persuades us to retreat from our
common-sense understanding that a defendant who intention-
No. 13-2424 9
ally lies while seeking to benefit from the safety valve is not
acting in good faith and is not within the class of offenders
whom Congress intended to protect from potentially harsh
statutory minimum penalties. The point of § 3553(f)(5) is that
a defendant who waits until the last minute to seek the safety
valve will not be penalized for his tardiness, but tardiness is
very different from trying repeatedly to deceive the govern-
ment until time has run out. And what Acevedo-Fitz did was
the latter. The statements he made during the January 2013
debriefings not only were demonstrably false in light of the
recorded telephone conversations, but those statements also
contradict what Acevedo-Fitz had said in his signed Petition to
Enter a Plea of Guilty and again under oath during the plea
colloquy. Thus, his effort in this court to discount his misstate-
ments as the product of forgetfulness rather than an intentional
effort to deceive is frivolous. And it follows that he forfeited
his eligibility for the safety valve by lying, i.e., trying to secure
a sentencing benefit through bad faith.
In any event, the district court gave Acevedo-Fitz the
benefit of the doubt and evaluated his May 2013 letter along-
side the two safety-valve debriefings. And still, the court
found, the defendant’s supposed cooperation was “too little
too late, with emphasis on the too little.” That conclusion is not
clearly erroneous.
A defendant cannot meet his burden under the safety valve
if the government challenges the “truthfulness, accuracy, or
completeness” of his information and he “does not produce
anything to persuade the district court that his submissions are
truthful and complete.” United States v. Nunez, 627 F.3d 274,
280 (7th Cir. 2010); see also United States v. Martinez, 301 F.3d
10 No. 13-2424
860, 866 (7th Cir. 2002). The district court recognized that
Acevedo-Fitz’s letter was not a complete disclosure and
instead represented the “bare minimum” he was “willing to
sign on for.” A defendant is not entitled to the safety valve
when he provides only limited information instead of complete
disclosure. See Nunez, 627 F.3d at 282 (noting that district
court’s decision not to apply safety valve could be upheld
based solely on defendant’s decision to limit discussion topics
during debriefing); United States v. Cruz, 106 F.3d 1553, 1557
(11th Cir. 1997) (safety-valve burden not met when statement
contained denials and little information concerning commis-
sion of offense). Moreover, even in those circuits where prior
lies are not deemed to be evidence of bad faith, the sentencing
court may take those lies into account in deciding if the
defendant’s current statements are truthful. See Aidoo, 670 F.3d
at 610; Brownlee, 204 F.3d at 1305; see also United States v.
Galvon-Manzo, 642 F.3d 1260, 1269–70 (10th Cir. 2011) (conclud-
ing that district court properly relied on defendant’s two prior
untruthful interviews when concluding safety valve did not
apply, even though defendant filed last-minute affidavit).
Acevedo-Fitz’s lack of cooperation during his safety-valve
debriefings and his resistance to admitting irrefutable offense
conduct caused the government to challenge the completeness
and truthfulness of his later written disclosures, a challenge
that could not be countered with a bare assertion that his
May 2013 letter was complete and truthful. See Montes, 381
F.3d at 637. And since Acevedo-Fitz did nothing more than
that, he did not meet his burden under § 3553(f).
III. Conclusion
Accordingly, we affirm the defendant’s sentence.