United States v. Casale

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-10509
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARGUERITE CASALE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:98-CR-211-Y)
_________________________
May 11, 2000
Before POLITZ, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Marguerite Casale appeals the sentence im-
posed following her plea of guilty of
possession with intent to distribute heroin in
violation of 21 U.S.C. § 841(a)(1). We affirm.
I.
The government first argues that we should
dismiss without consideration of the merits be-
cause Casale’s written plea agreement contains
a waiver-of-appeal provision. A defendant can
waive the right to appeal as part of a plea
agreement, but the waiver must be informed
(or “knowing”) and voluntary. See United
States v. Melançon, 972 F.2d 566, 567 (5th
Cir. 1992). “[A] defendant's waiver of her
right to appeal deserves and, indeed, requires
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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2
the special attention of the district court. . . .
It is up to the district court to insure that the
defendant fully understands her right to appeal
and the consequences of waiving that right.”
United States v. Baty, 980 F.2d 977, 979 (5th
Cir. 1992). A generic discussion of the
possibility of waiving one’s right to an appeal
is not sufficient. See United States v.
Robinson, 187 F.3d 516, 518 (5th Cir. 1999).
The record of Casale’s FED. R. CRIM. P. 11
hearing does not unequivocally indicate that
she had read and understood the plea
agreement, and the hearing did not include any
explanation of the waiver-of-appeal provision.
The record is not adequate to demonstrate that
Casale knowingly and voluntarily waived her
right to appeal, so the waiver is not effective.
See Robinson, 187 F.3d at 518; United States
v. Portillo, 18 F.3d 290, 292-93 (5th Cir.
1994).
II.
Casale argues that the court erred by
declining to impose a sentence below the
statutory minimum pursuant to the “safety
valve” provision of 18 U.S.C. § 3553(f):
Notwithstanding any other provision of
law, in the case of an offense under . . .
21 U.S.C. 841 . . . the court shall
impose a sentence pursuant to guidelines
promulgated by the United States
Sentencing Commission . . . without
regard to any statutory minimum
sentence, if the court finds at sentencing,
after the Government has been afforded
the opportunity to make a
recommendation, thatSS
. . .
(5) 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, but the fact that the
defendant has no relevant or useful other
information to provide or that the
Government is already aware of the
information shall not preclude a
determination by the court that the
defendant has complied with this
requirement.1
This requirement is repeated verbatim at
U.S.S.G. § 5C1.2, and U.S.S.G. § 2D1.1(b)(6)
provides for a two-level decrease in offense
level if the “safety-valve” requirements are met
and the offense level is 26 or greater.
Based on the government’s assertion that
Casale had not truthfully provided all
information and evidence she had regarding
the offense, the Presentence Report (“PSR”)
recommended that she was ineligible for the
safety-valve provision. The court tentatively
sustained Casale’s objection to this
recommendation, but, after hearing testimony
from a government agent and Casale,
determined that the PSR recommendation was
correct and refused to apply the safety-valve
provision because of a failure to satisfy the
truthfulness criterion of § 3553(f)(5). We
review this finding for clear error.2 See United
1 Section 3553(f) contains five requirements,
but the parties dispute only whether Casale has
satisfied the requirement contained at § 3553(f)(5).
2 Neither party contends that the court
incorrectly interpreted the provision as a matter of
(continued...)

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3
States v. Miller, 179 F.3d 961, 963-64 (5th
Cir. 1999).
The government asserts that Casale has not
been truthful about at least two issues. First,
although the government was able to verify
Casale’s claim that she had engaged in a
practice run from New York to Texas after her
recruitment as a drug courier, government
agents did not believe she was unaware of the
identity of all other participants in the drug
operation, and did not believe her assertion
that, having suffered a stroke, she was unable
to recall specific dates.
Second, Casale became extremely evasive
on cross examination when the government
asked about a receipt for a $50 postal money
order from Lucy Montemoro in Brooklyn,
New York, to Luis de Jesus in Elmira, New
York, which was found in Casale’s purse at
the time of arrest. Casale claimed that the
money order was not related to her criminal
offense, and therefore refused to identify the
named individuals.
Following Casale’s testimony, the court
stated that it now understood why the PSR
found her to be ineligible for the safety valve
provision, and overruled her objection to the
denial of that reduction on the ground that she
had been evasive under questioning and had
failed to demonstrate that she had been
forthcoming for purposes of § 3553(f)(5).
Casale argues that the court erred by denying
the reduction based on irrelevant matters and
pure speculation, in violation of Miller.
In Miller, we held that a court may not re-
fuse the safety valve reduction based on
untruthfulness regarding matters not related to
the offense of conviction. See Miller, 179
F.3d at 965-66. Miller does not control
whether the money order testimony is relevant,
however, because unlike the situation in Mil-
ler, the only basis for determining whether the
money order is relevant is Casale’s credibility,
a judgment the district court was uniquely well
qualified to make.
Casale’s assertion that the court incorrectly
relied on pure speculation is likewise not sup-
ported by Miller. In Miller, we did hold that
a court may not rely on mere speculation, but
in so doing we explicitly followed United
States v. Miranda-Santiago, 96 F.3d 517 (1st
Cir. 1996), and United States v. White, 119
F.3d 70 (1st Cir. 1997). See Miller, 179 F.3d
at 967-68.
The Miranda-Santiago court held that mere
speculation is not sufficient to defeat
application of 18 U.S.C. § 3553(f): “The
government cannot assure success simply by
saying, ‘We don’t believe the defendant,’ and
doing nothing more.” Miranda-Santiago, 96
F.3d at529. In White, the court clarified
Miranda-Santiago in affirming a refusal to
apply the safety valve provision:
Miranda-Santiago in no sense suggests
that the sentencing court cannot arrive
at an independent determination
regarding a criminal defendant’s
truthfulness, based on the evidence
before it. Rather, we there held merely
that it was clear error to conclude that
the defendant had been untruthful, based
solely on a PSR which directly
contradicted the district court’s
determination.
2(...continued)
law.

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4
White, 119 F.3d at 74.3
As in White, the district court in this case,
after preliminarily rejecting the government’s
argument, “made the carefully considered de-
termination that [Casale] lacked credibility.”
White, 119 F.3d at 74. That decision is not
clearly erroneous.
AFFIRMED.
3 The Miranda-Santiago district court was con-
fused about two matters, the nature and content of
the plea agreement and the content of the PSR. See
Miranda-Santiago, 96 F.3d at 527. In particular,
the court incorrectly believed that the PSR
supported the government’s position as to the
defendant’s truthfulness. See id.

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