United States v. Darrin Manning , 352 F. App'x 399 ( 2009 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                  FILED
    U.S. COURT OF APPEALS
    No. 09-11324                ELEVENTH CIRCUIT
    NOVEMBER 10, 2009
    Non-Argument Calendar
    THOMAS K. KAHN
    ________________________
    CLERK
    D. C. Docket No. 08-14058-CR-JEM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    DARRIN MANNING,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (November 10, 2009)
    Before CARNES, MARCUS and ANDERSON, Circuit Judges.
    PER CURIAM:
    Darrin Manning appeals his 120-month sentence imposed for possession,
    and conspiracy to possess, with intent to distribute 50 grams or more of crack
    cocaine, in violation of 
    21 U.S.C. §§ 846
    , 841(a)(1), and (b)(1)(A). Manning
    contends the district court clearly erred by applying the mandatory minimum
    sentence under 
    21 U.S.C. § 841
    (b)(1)(A), instead of giving him the benefit of the
    “safety-valve” provisions of 
    18 U.S.C. § 3553
    (f) and the sentencing guidelines.
    See United States Sentencing Guidelines §§ 5C1.2, 2D1.1(b)(11). The district
    court denied safety-valve relief based on its finding that Manning was not
    completely truthful and forthcoming in providing information about the offense, a
    conclusion that was not clearly erroneous. Accordingly, we affirm.
    The safety-valve provision of U.S.S.G. § 5C1.2(a) enables sentencing
    without regard to the statutory minimum for certain offenses if five requirements
    are met. See United States v. Milkintas, 
    470 F.3d 1339
    , 1344 (11th Cir. 2006) (per
    curiam). The burden is on the defendant to show he has met all the criteria.
    United States v. Johnson, 
    375 F.3d 1300
    , 1302 (11th Cir. 2004) (per curiam). If he
    satisfies this burden, the defendant receives a two-level reduction in offense level.
    Milkintas, 
    470 F.3d at 1344
    ; see also U.S.S.G. § 2D1.1(b)(11). The fifth
    requirement, and the only one at issue here, is that the defendant “has truthfully
    provided to the Government all information and evidence the defendant has
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    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). A
    district court cannot apply the safety valve if it determines the defendant “withheld
    or misrepresented information.” United States v. Figueroa, 
    199 F.3d 1281
    ,
    1282–83 (11th Cir. 2000).
    We review the district court’s factual determinations and subsequent denial
    of safety-valve relief only for clear error. Johnson, 
    375 F.3d at 1302
    . “Credibility
    determinations are typically the province of the fact finder because the fact finder
    personally observes the testimony and is thus in a better position than a reviewing
    court to assess the credibility of witnesses.” United States v. Ramirez-Chilel, 
    289 F.3d 744
    , 749 (11th Cir. 2002). Accordingly, we “accept the evidence unless it is
    contrary to the laws of nature, or is so inconsistent or improbable on its face that no
    reasonable factfinder could accept it.” 
    Id.
     (citation and quotation marks omitted).
    We must affirm “[i]f the district court’s account of the evidence is plausible in light
    of the record viewed in its entirety.” Anderson v. City of Bessemer City, N.C., 
    470 U.S. 564
    , 574 (1985).
    We find ample support in the record for the district court’s determination
    that Manning was not completely forthcoming. A reasonable factfinder could
    determine that Manning refused to admit supplying the crack cocaine for the drug
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    deal because he is protecting his source. Franklin Mack, a co-defendant, stated that
    Manning supplied the drugs and arrived at their rendezvous point in a black SUV
    along with Mack’s brother, Demetrius. Manning flatly denied that account, but
    Mack was more credible because he would not benefit from lying about these
    particular facts, which implicate his brother in the drug deal. Anthony Simmons,
    another co-defendant, corroborated Mack’s story about the SUV and Demetrius,
    and added details about the existence of a bowl in which Manning transported the
    drugs. In this “he said, they said” scenario, we cannot conclude it was clear error
    to credit the testimony of two witnesses over the self-interested testimony of one.
    Manning argues that the district court had a clearly erroneous recollection of
    the record because it said the following: “[I]t has been my experience that people
    that say ‘to be honest with you’ are not. And Mr. Manning often said ‘to be honest
    with you’ during his testimony.” Manning said “to be honest with you” only once
    in his testimony, not “often.” But one misstatement does not render the district
    court’s account implausible “in light of the record viewed in its entirety.”
    Anderson, 
    470 U.S. at 574
     (emphasis added). As discussed above, there were
    many reasons to find that Manning withheld or misrepresented information.
    We are not persuaded, as Manning argues, that either United States v.
    Alvarado-Rivera, 
    386 F.3d 861
     (8th Cir. 2004), or United States v. Miranda-
    4
    Santiago, 
    96 F.3d 517
     (1st Cir. 1996), compel a different result. Those cases are
    not binding in this circuit or on point. Both involved a denial of safety-valve relief
    based solely on the district court’s intuition that the defendant had lied, unlike this
    case where Manning’s testimony was contradicted by other witnesses.
    Because we find Manning ineligible for the safety valve, we need not
    address his argument that he was entitled to a sentence reduction for acceptance of
    responsibility, pursuant to U.S.S.G. § 3E1.1. Manning was sentenced to the
    statutory minimum of 120-months imprisonment. Thus, even if he established
    eligibility under § 3E1.1, such eligibility could not affect his sentence. See United
    States v. Cruz, 
    106 F.3d 1553
    , 1555 n.3 (11th Cir. 1997).
    AFFIRMED.
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