USA v. Jonathan De Los Santos

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10638
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN GABRIEL DE LOS SANTOS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cr-20122-CMA-1
____________________
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2 Opinion of the Court 23-10638
Before J ILL PRYOR , B RASHER and ABUDU, Circuit Judges.
PER CURIAM:
Jonathan De Los Santos appeals his 120-month sentence,
which the district court imposed after he pled guilty to conspiracy
to distribute a controlled substance. On appeal, De Los Santos ar-
gues that the district court erred in declining to grant him safety-
valve relief based on its finding that he failed to provide complete
and truthful information to the government. After careful review,
we affirm.
I.
De Los Santos pled guilty pursuant to a plea agreement to
one count of conspiracy to distribute cocaine, in violation of 18
U.S.C. § 846. The plea agreement provided that the mandatory
minimum term of imprisonment for his offense was 10 years. The
agreement further provided that the government would recom-
mend that the district court impose a sentence below the statutory
minimum pursuant to the so-called “safety-valve” provision in Sec-
tion 5C1.2 of the United States Sentencing Guidelines so long as De
Los Santos “truthfully provided to the United States all information
and evidence that [he] has concerning the offense or offenses that
were part of the same course of conduct or of a common scheme
or plan.” Doc. 24 at 41; see U.S. Sent’g Guidelines Manual § 5C1.2(a)
(explaining that a sentencing court “shall impose a sentence in
1 “Doc.” numbers are the district court’s docket entries.
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23-10638 Opinion of the Court 3
accordance with the applicable guidelines without regard to any
statutory minimum sentence, if the court finds that the defendant
meets [several] criteria,” including 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”).
Before sentencing, the government advised De Los Santos’s
probation officer charged with assembling his presentence investi-
gation report (PSR) that De Los Santos had not provided a com-
plete and truthful statement regarding his involvement in and
knowledge of the conspiracy. As a result, the probation officer
opined that § 5C1.2 was inapplicable and reported De Los Santos
as being subject to the 10-year statutory mandatory minimum term
of imprisonment.
De Los Santos objected to the determination that he did not
qualify for safety-valve relief under § 5C1.2. He asserted that he
would satisfy the truthful information requirement by the time of
sentencing, as contemplated by the Guidelines. See U.S. Sent’g
Guidelines Manual § 5C1.2(a)(5) (requiring disclosure of requested
information “not later than the time of the sentencing hearing”).
At sentencing, the government asserted that De Los Santos
had failed to satisfy the truthful-information requirement for
safety-valve relief and recommended that he be sentenced to the
10-year mandatory minimum term of imprisonment. De Los San-
tos responded that he had “given a safety valve statement to the
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4 Opinion of the Court 23-10638
Government as was requested of him” and had “responded to
some written questions that were posed to him by the . . . Govern-
ment.” Doc. 52 at 3. He acknowledged, however, that the govern-
ment had believed him to be untruthful in his responses. To estab-
lish his truthfulness, De Los Santos called law enforcement agent
Marcelino Mariabello to testify about the drug distribution conspir-
acy and the information De Los Santos gave him about the scheme.
Mariabello testified that De Los Santos had admitted that as part of
the conspiracy he had received cocaine from other co-conspirators.
Mariabello testified that De Los Santos admitted distributing the
cocaine he had received. And, Mariabello testified, De Los Santos
had given law enforcement the names of some of the people to
whom he distributed drugs. But, according to Mariabello, De Los
Santos had not been truthful and complete in his statements to law
enforcement. De Los Santos, Mariabello testified, had “failed to ad-
vise of other sources of supply” of the cocaine he distributed, lied
about the amount of cocaine he received, provided only a partial
list of his distribution customers, withheld information about other
unindicted participants in the scheme, and generally “minimized
his role” in the offense. Id. at 8, 12, 14. Mariabello testified that he
knew De Los Santos’s statements were not truthful based on law
enforcement’s investigation of the sprawling conspiracy, including
information obtained from several cooperating witnesses and from
physical evidence like transaction ledgers.
De Los Santos argued that Mariabello’s testimony supported
the application of § 5C1.2 notwithstanding the agent’s testimony
about De Los Santos’s lack of truthful or complete information. He
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23-10638 Opinion of the Court 5
argued that safety-valve relief was “not meant to be coopera-
tion”—that is, § 5C1.2 contemplated information about “the com-
mon plan or scheme that is part of this indictment,” not about pos-
sible crimes further afield from the indicted offense. Id. at 23, 25.
He further argued that the fact that cooperating witnesses gave
Mariabello different information did not mean that his statements
were untruthful. In response, the government argued that all the
information De Los Santos was asked to provide, and about which
Mariabello testified, was related to the conspiracy of which De Los
Santos was a part. The district court agreed with the government
and ruled that De Los Santos was ineligible for safety-valve relief.
The court imposed the mandatory minimum of 10 years’ impris-
onment.
This is De Los Santos’s appeal.
II.
When reviewing the denial of safety-valve relief, we review
for clear error the district court’s factual findings, and we review de
novo the court’s legal interpretation of the Guidelines. United States
v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004). Specifically, we re-
view only for clear error the court’s determination as to whether a
defendant has provided complete and truthful information for
safety-valve purposes. United States v. Cruz, 106 F.3d 1553, 1557
(11th Cir. 1997). It is the defendant’s burden to demonstrate that he
has met all the safety-valve factors. Johnson, 375 F.3d at 1302. We
will not disturb a district court’s findings under clear error review
“unless we are left with a definite and firm conviction that a
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6 Opinion of the Court 23-10638
mistake has been committed.” United States v. Cruickshank, 837 F.3d
1182, 1192 (11th Cir. 2016) (internal quotation marks omitted).
III.
On appeal, De Los Santos argues that the district court
clearly erred in determining that he had not been entirely truthful,
contending that the information he provided law enforcement was
simply “deemed to be untrue.” Appellant’s Br. at 16. Acknowledg-
ing, however, that the court had some evidence upon which to base
its finding, he further argues that the court based that finding solely
on information law enforcement obtained from cooperating wit-
nesses. Finally, De Los Santos argues that the district court required
more of him—full cooperation—than § 5C1.2 contemplates. As we
explain, we disagree.
In an offense like the one De Los Santos committed, for
which a statute provides a mandatory minimum sentence, a de-
fendant is eligible for a sentence less than the minimum if he meets
several requirements. U.S. Sent’g Guidelines Manual § 5C1.2. As
relevant to this appeal, the requirements for safety-valve relief in-
clude that, “not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all infor-
mation and evidence the defendant has concerning the offense or
offenses that were part of the same course of conduct or of a com-
mon scheme or plan.” Id. § 5C1.2(a)(5); see 18 U.S.C. § 3553(f )(5)
(same). We have referred to this requirement as “a ‘tell-all’ provi-
sion: to meet its requirements, the defendant has an affirmative re-
sponsibility to truthfully disclose to the government all
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23-10638 Opinion of the Court 7
information and evidence that he has about the offense and all rel-
evant conduct.” Johnson, 375 F.3d at 1302 (internal quotation marks
omitted).
The district court did not clearly err in finding that De Los
Santos had not been entirely truthful and had provided incomplete
information to law enforcement. True, in determining whether a
defendant has been truthful the district court may not simply defer
to the government but must independently determine the truthful-
ness of the information the defendant has provided. United States v.
Espinosa, 172 F.3d 795, 797 (11th Cir. 1999). But, contrary to De Los
Santos’s assertion, the district court did not merely deem his infor-
mation to be untrue. Rather, the court expressly relied upon the
testimony of Mariabello, a law enforcement agent directly involved
in the investigation of this case.
And Mariabello’s testimony about De Los Santos’s truthful-
ness and forthcomingness was not based solely on information co-
operating witnesses provided. Mariabello testified that law enforce-
ment also obtained ledgers describing transactions between co-
conspirators and seized large quantities of cocaine during searches
relating to the conspiracy, both of which contributed to law en-
forcement’s understanding of the scope of the conspiracy. Un-
doubtedly, Mariabello’s opinion about the reliability De Los San-
tos’s information was based heavily—though not entirely—on the
accounts of cooperating witnesses. But even accepting for argu-
ment’s sake that cooperating witnesses may have had incentives to
be untruthful about De Los Santos’s involvement in the conspiracy,
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8 Opinion of the Court 23-10638
here the record suggests they were truthful. As Mariabello testified,
the cooperating witnesses were interviewed separately from one
another, and their accounts nonetheless were consistent as to De
Los Santos’s role in the conspiracy. For these reasons, we are not
left with a definite and firm conviction that the district court made
a mistake in its factual findings.
Lastly, we address De Los Santos’s argument that the district
court misconstrued the safety-valve provision to require him to co-
operate in law enforcement’s investigation to the extent that it
reached beyond the scope of the indictment. We have said that
where the defendant’s charges include a drug conspiracy, a com-
plete statement under the safety-valve provision may include infor-
mation relevant to the involvement of others in the chain of distri-
bution. Cruz, 106 F.3d at 1557. This chain-of-distribution infor-
mation was the subject of the government’s inquiries with De Los
Santos. The information the government sought pertained to the
scope of the conspiracy, including De Los Santos’s and others’ in-
volvement in it. The government sought a broad range of infor-
mation because the conspiracy was extensive, not because the gov-
ernment was reaching beyond the scope of the conspiracy charged
in the indictment. We therefore reject De Los Santos’s argument.
For the foregoing reasons, we affirm De Los Santos’s sen-
tence.
AFFIRMED.
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