USA v. Romae Rhoando Jordan

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14643
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROMAE RHOANDO JORDAN,
Defendant -Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cr-00052-RBD-LRH-1
____________________
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2 Opinion of the Court 20-14643
Before J ORDAN, ROSENBAUM , and GRANT, Circuit Judges.
PER CURIAM:
Romae Jordan appeals the district court’s denial of relief un-
der the “safety valve,”
see U.S.S.G. § 5C1.2, at his sentencing for
importing 500 grams or more of cocaine into the United States
from Jamaica. The court found that Jordan failed to carry his bur-
den of proving that he truthfully told the government everything
he knew about the crime, and so was not eligible to be sentenced
below the five-year mandatory minimum penalty, even though, in
the court’s view, a 60-month sentence was “longer than necessary
to achieve the statutory purposes of sentencing.” After careful re-
view, we affirm the district court.
I.
In February 2020, Jordan arrived at the Orlando Interna-
tional Airport from Jamaica carrying nearly 2,000 grams of cocaine
in his luggage. The cocaine was concealed within eleven lotion
bottles. He was arrested at the airport and later pled guilty to
knowingly and intentionally importing 500 grams or more of co-
caine, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1).
The statutory minimum penalty was five years of imprison-
ment,
see 21 U.S.C. § 960(b)(2)(B)(ii), which was above the 37–46
month guideline range initially recommended by Jordan’s presen-
tence investigation report. But Jordan contended that the manda-
tory minimum did not apply because he was entitled to safety-
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20-14643 Opinion of the Court 3
valve relief as a low-level, nonviolent offender with no criminal his-
tory.1
See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.
The government asserted that the safety valve did not apply
because Jordan failed to truthfully disclose all the information he
knew about the offense.
See 18 U.S.C. § 3553(f)(5); U.S.S.G.
§ 5C1.2(a)(5). And it called Agent Nestor Perez, a special agent
with the Department of Homeland Security, to testify at sentenc-
ing about his three interviews with Jordan, the most recent of
which was the morning of the sentencing hearing.
Jordan’s story, according to Perez, was as follows. Jordan
was at a local market in Montego Bay, Jamaica, buying toiletries
for an upcoming trip to the United States when he was approached
by a person who appeared to be affiliated with a gang. This person,
whom Jordan identified as “Tug,” asked him questions about his
name, where he lived, and where he was traveling. Jordan said his
name was “Rhyming King,” identified the neighborhood where he
lived, and stated that he was traveling to Orlando. Tug then of-
fered him $1,000 to bring something to the United States. When
Jordan agreed, Tug left briefly and then returned with a plastic bag
containing the lotion bottles that Jordan subsequently imported.
Tug took Jordan’s phone number and said he would be contacted
when he arrived in Orlando and paid when he made the exchange.
1 Jordan also sought the benefit of a mitigating-role reduction.
See U.S.S.G.
§ 3B1.2. Although the district court granted a two-level reduction, that deci-
sion had no practical effect because of the mandatory minimum penalty.
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4 Opinion of the Court 20-14643
Tug did not give his phone number to Jordan or any details about
a backup plan. Jordan told Perez he initially thought the lotion bot-
tles contained marijuana.
Perez testified that, in his view, Jordan’s proffer was not
complete and truthful. While Perez did not have any evidence to
refute Jordan’s story, he found it difficult to believe that a drug traf-
ficker would entrust a stranger with roughly two kilograms of co-
caine (worth between $60,000 and $70,000, according to Perez)
“without having any way to be able to recover their drugs, get
those back, find that person again.” Perez believed based on his
extensive training and experience in drug-trafficking cases that a
drug courier was unlikely to be trafficking that quantity of cocaine
based on “some serendipitous one-time thing,” and that Jordan
knew more than he had disclosed.
Jordan responded that the government lacked any evidence
to contradict his story, that Perez had failed to investigate any of
the information he provided, and that there were plausible expla-
nations for the aspects of his story that the government had found
difficult to believe. In reply, the government echoed Perez’s belief
that it was unlikely a drug trafficker would entrust a stranger with
at least $60,000 worth of cocaine without “any backup plan.” The
government also asserted that it “doesn’t make sense” for Jordan
to have believed the substance for which he was being paid $1,000
to transport was marijuana, when five pounds of marijuana was
worth around $100 in Jamaica.
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20-14643 Opinion of the Court 5
During the government’s argument, the district court ex-
pressed frustration that it was “being asked to assess the credibility
of a proffer that I didn’t attend,” and that it did not know how to
make “a credibility determination other than simply adopting what
Agent Nestor’s gut tells him that Mr. Jordan is not being honest.”
The court noted that the government had failed to determine
whether anyone called Jordan after he arrived in Orlando and in-
stead placed his cell phone in airplane mode.
Ultimately, though, the district court found that Jordan
failed to meet his burden to show that he had made a full and com-
plete proffer of his knowledge about the offense. Jordan’s story
was not plausible or credible, according to the court, given “the
variation and the versions given to law enforcement about the con-
tent of the controlled substance that was being imported” and the
significant value of the imported controlled substance. The court
found that it was reasonable to expect Jordan to have some addi-
tional information because, in its experience, drug mules have
some connection to the organization even if they are “provided
with as little information as possible.”
Because it denied safety-valve relief, the district court im-
posed the minimum sentence of 60 months, which it described as
“excessive,” unjust, and “longer than necessary to achieve the stat-
utory purposes of sentencing.” If the safety valve had applied, the
court would have sentenced Jordan to 24 months. But while the
court was “not happy with the outcome” of its safety-valve
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6 Opinion of the Court 20-14643
decision, it said it could not “in good conscience” find that Jordan
met his burden based on the facts in the record. Jordan appeals.
II.
When reviewing the denial of safety-valve relief, we review
the district court’s interpretation of the relevant law
de novo and
its factual determinations for clear error.
United States v. Johnson,
375 F.3d 1300, 1301 (11th Cir. 2004). A factual finding is clearly
erroneous when it is not supported by “substantial evidence” in the
record, or “when although there is evidence to support it, the re-
viewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.”
United States
v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007) (quotation marks
omitted).
Under the so-called “safety valve,” a sentencing court may
impose a sentence “without regard to any statutory minimum sen-
tence” if the court finds that the defendant meets five listed criteria.
See 18 U.S.C. § 3553(f)(1)–(5); U.S.S.G. § 5C1.2(a)(1)–(5). Only the
fifth requirement is in dispute: whether Jordan “truthfully provided
to the Government all information and evidence [he] has concern-
ing the offense” and relevant conduct. 18 U.S.C. § 3553(f)(5);
U.S.S.G. § 5C1.2(a)(5). This “tell all” provision requires defendants
to truthfully tell everything they know about the crimes and con-
spiracies in which they were involved.
United States v. Yate, 176
F.3d 1309, 1310 (11th Cir.1999). But “the fact that the defendant
has no relevant or useful other information to provide” does not
preclude safety-valve relief. 18 U.S.C. § 3553(f)(5); U.S.S.G.
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20-14643 Opinion of the Court 7
§ 5C1.2(a)(5). The defendant bears the burden of proving his eligi-
bility for safety-valve relief.
United States v. Milkintas, 470 F.3d
1339, 1345 (11th Cir. 2006).
Whether the information provided by a defendant is “truth-
ful and complete” for purposes of the safety valve is “a factual find-
ing for the district court.”
United State v. Brownlee, 204 F.3d 1302,
1305 (11th Cir. 2002). In determining the truthfulness of a defend-
ant, the district court must independently assess the facts and may
not simply defer to the government on the issue.
United States v.
Espinosa, 172 F.3d 795, 797 (11th Cir. 1999);
see Milkintas, 470 F.3d
at 1346 n.5 (“It is error for the district court to rely on the govern-
ment’s determination of the information’s truthfulness.”).
Here, the district court did not clearly err in finding that Jor-
dan failed to show that the information he provided the govern-
ment was truthful and complete.
See Johnson, 375 F.3d at 1301;
Brownlee, 204 F.3d at 1305. The court reasoned that a drug traf-
ficker would not entrust $60,000 worth of cocaine to a complete
stranger without any backup plan and that drug couriers ordinarily
have some preexisting connection with the organization.2 While
2 The district court also cast doubt on whether Jordan believed at the time that
the substance he trafficked was marijuana, apparently based on a disconnect
between the value of the marijuana in Jamaica ($100) and what Jordan ex-
pected to be paid ($1,000). But the value of marijuana in Jamaica is irrelevant
because the substance was being imported into the United States. Nor is there
any evidence that Jordan knew the value of any controlled substance or had
any direct knowledge of what was contained in the lotion bottles. Neverthe-
less, we see no indication that the court would have decided the safety-valve
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8 Opinion of the Court 20-14643
Jordan’s story was certainly not impossible, we do not think it’s un-
reasonable for the court to have inferred that Jordan knew more
about Tug or the trafficking arrangement than he had disclosed to
the government.
Cf. United States v. Quilca-Carpio, 118 F.3d 719,
722 (11th Cir. 1997) (“A reasonable jury could infer from the quan-
tity of drugs seized that a ‘prudent smuggler’ is not likely to entrust
such valuable cargo to an innocent person without that person’s
knowledge.”).
That Jordan arguably offers plausible explanations for the
more-difficult-to-believe aspects of his story—that fear-based and
financial incentives could have substituted for a prior relationship
or a backup plan—is not enough. After all, “a trial court’s choice
between two permissible views of the evidence is the very essence
of the clear error standard of review.”
United States v. De Varon,
175 F.3d 930, 945 (11th Cir. 1999) (
en banc) (quotation marks omit-
ted). The district court had reasonable doubts that Jordan’s story
was the complete truth about his offense, despite expressing a clear
desire to sentence him below the mandatory minimum, and “it is
blackletter law that where the trier of fact remains uncertain, the
party with the burden of proof”—here, Jordan—“loses.”
United
States v. Mancilla-Ibarra, 947 F.3d 1343, 1352 (11th Cir. 2020) (af-
firming the denial of safety-valve relief).
issue differently, given its reasoning based on the value of the cocaine and how
drug-trafficking organizations ordinarily operate.
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20-14643 Opinion of the Court 9
We also reject Jordan’s argument that the district court
merely deferred to the government’s assessment of the truthful-
ness and completeness of the information he provided. In
Espi-
nosa, we overturned the district court where it found that because
Espinosa had not testified at trial it had no way of knowing if he
was telling the truth. 172 F.3d at 797. So it simply adopted the
government’s theory.
Id. But that is not what happened here. The
district court heard testimony from the government agent who in-
terviewed Jordan. It considered both parties’ positions and asked
questions critical of the government. It then made an independent
judgment regarding the credibility of Jordan’s story based on the
information available to it. The court clearly struggled with how
to make a credibility determination based on the record. But Jor-
dan did not testify about these matters at sentencing, and though
the court ultimately adopted reasoning consistent with the govern-
ment’s position, the record is clear that the court made an inde-
pendent assessment and did not simply defer to the government.
See id.
For these reasons, the district court did not err in denying
safety-valve relief. We therefore affirm Jordan’s 60-month prison
sentence.
AFFIRMED.
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