United States of America v. Dai-Kwon Armond

United States Court of Appeals
For the Eighth Circuit
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No. 24-1645
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United States of America
Plaintiff - Appellee
v.
Dai-Kwon Armond
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: March 17, 2025
Filed: April 24, 2025
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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GRUENDER, Circuit Judge.
Dai-Kwon Armond pleaded guilty to distributing a controlled substance. See
21 U.S.C. §§ 841(a)(1), (b)(1)(C). Armond’s total offense level of 11 combined
with a criminal history category of I resulted in an advisory sentencing guidelines
range of 8-14 months. After considering the 18 U.S.C. § 3553(a) factors, the district

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court1 varied upwards and sentenced Armond to 24 months’ imprisonment, followed
by a 3-year term of supervised release. On appeal, Armond contends that he was
entitled to a two-level reduction in his offense level through the use of the safety
valve provision in U.S.S.G. § 5C1.2. He also challenges the substantive
reasonableness of his sentence.
We first address whether Armond was entitled to a two-level reduction under
the safety valve. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). Since Armond did
not timely object in the district court, we review the district court’s denial of the
safety valve reduction for plain error. See United States v. Thompson, 289 F.3d 524,
526 (8th Cir. 2002). To establish plain error, Armond “must show that there is (1)
error, (2) that is plain, and (3) that affects substantial rights.” United States v. Ford,
888 F.3d 922, 926 (8th Cir. 2018) (internal quotation marks omitted).
Under the safety valve provision in U.S.S.G. § 5C1.2, a district court may
impose a sentence “without regard to a statutory minimum” in cases involving “first-
time non-violent drug offenders who meet certain requirements.” Deltoro-Aguilera
v. United States, 625 F.3d 434, 437 (8th Cir. 2010). The only requirement at issue
in this case is the final one, which requires that “not later than the time of the
sentencing hearing, the defendant . . . truthfully provide[] 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.” U.S.S.G.
§ 5C1.2(a)(5). The “fact that the defendant has no relevant or useful other
information to provide or that the Government is already aware of the information
[does] not preclude a determination by the court that the defendant has complied
with this requirement.” Id. The defendant bears the burden of showing that he is
affirmatively entitled to the safety valve reduction. United States v. Alvarado-
Rivera, 412 F.3d 942, 947 (8th Cir. 2005).
1 The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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Armond acknowledges that he neither participated in a proffer interview nor
disclosed any information he had concerning his offense. He nonetheless makes a
unique argument that he is entitled to the safety valve reduction because he never
had any information to provide. By doing so, Armond incorrectly attempts to shift
the burden to the Government to disprove his claim, even though the defendant bears
the burden of showing that he is affirmatively entitled to the safety valve reduction.
See id. A defendant who merely makes a bald assertion like this falls far short of
satisfying that burden. See United States v. Sanchez, 475 F.3d 978, 981 (8th Cir.
2007) (“Refusing to answer questions or respond to inquiries about relevant conduct
is inconsistent with providing a complete and truthful account of that conduct.”);
United States v. Bui, 687 F.3d 1101, 1103 (8th Cir. 2012) (concluding that the district
court “had no choice but to deny a safety valve reduction” as the defendant “made
no proffer” to the Government). To hold otherwise would permit a defendant to
claim entitlement to the safety valve reduction by refusing to speak with the
Government and assert after the fact that he never had any information to provide.
That would render U.S.S.G. § 5C1.2(a)(5)’s “all information” requirement a nullity.
We therefore conclude that the district court did not plainly err in denying the safety
valve reduction to Armond.
We next address whether the district court imposed a substantively
unreasonable sentence. We review the substantive reasonableness of a sentence
under an abuse of discretion standard. United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc). A district court abuses its discretion when it “fails to
consider a relevant factor that should have received significant weight,” “gives
significant weight to an improper or irrelevant factor,” or “considers only the
appropriate factors but in weighing those factors commits a clear error of judgment.”
United States v. Noriega, 35 F.4th 643, 651 (8th Cir. 2022). When a district court
imposes a sentence outside the sentencing guidelines range, “we may consider the
extent of the deviation, but must give due deference to the district court’s decision.”
Feemster, 572 F.3d at 461-62.

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Armond asserts that the district court abused its discretion by giving
insufficient weight to his lack of criminal history. Contrary to Armond’s assertion,
the district court noted that Armond’s lack of criminal history was a “significant
mitigator.” Notwithstanding this “significant mitigator,” the district court
determined that an upward variance was warranted due to several aggravating
factors. The district court noted that Armond’s drug distribution offense involved
both heroin and fentanyl, which it called “some of the most severe or serious drug
trafficking offenses that are prosecuted and sentenced.” It also cited as aggravating
that Armond had sought to expand his drug distribution operations, planned
extensively to avoid detection by law enforcement, and conducted drug transactions
in locations which were a “recipe for disaster.” Giving “due deference to the district
court’s decision,” we conclude that the district court did not commit a clear error of
judgment in determining that the aggravating factors outweighed the mitigating.
Feemster, 572 F.3d at 461-62. Thus, we discern no abuse of discretion.
Accordingly, we affirm the judgment of the district court.
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