United States of America v. Moises Ponce

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2426
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M OISES P ONCE ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1139—Suzanne B. Conlon, Judge.
____________
A RGUED D ECEMBER 17, 2003—D ECIDED F EBRUARY 13, 2004
____________
Before K ANNE , R OVNER , and W ILLIAMS , Circuit Judges.
K ANNE , Circuit Judge. Moises Ponce challenges the sen-
tence he received after he pleaded guilty to conspiring to
possess with intent to distribute marijuana in violation of
21 U.S.C. § 846. He contends that the district court should
have found that he was eligible for the “safety valve” ex-
ception to the statutory minimum sentence of 120 months’
imprisonment. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. We
affirm his sentence.
Ponce admits that he was involved in the transfer of
over 1,000 kilograms of marijuana from Laredo, Texas, to
Cicero, Illinois, in November 2002. His job in the transfer
was to secure transportation for the drugs, and to that end
he met with the owner of a Chicago area trucking company

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2 No. 03-2426
who, unknown to Ponce, was a confidential government
informant (CI). Through the CI, Ponce arranged for what
turned out to be two undercover DEA agents to pick up the
drugs in Laredo on November 20. Ponce denies being pres-
ent for the pick-up. But he admits being in Chicago on
November 22, when he and co-defendants Juan Antunez
and Arnaldo Zambrano unloaded the truck at a local fac-
tory. Antunez and Zambrano were arrested on November
23, and Ponce was arrested a month later.
After his arrest Ponce had two meetings with the gov-
ernment. At the first meeting he told the government the
names of the other participants in the crime. He also stated
that he did not pay the CI any money before the transfer,
that he was not present when the drugs were picked up,
and that he had met co-defendant Antunez for the first time
only on the day before the delivery. At the second meeting,
the government presented Ponce with phone records
showing that he had spoken with Antunez in the weeks
leading up to the deal, and confronted him with testimony
from the CI that Ponce had paid him in advance for ex-
penses. At this point, Ponce admitted to communicating
with Antunez before the transfer and to paying the CI.
Ponce continued to deny, however, being present in Laredo
for the pick-up.
At sentencing, Ponce objected to the fact that the
presentence investigation report did not recommend a sen-
tencing reduction under U.S.S.G. § 5C1.2. He argued that
in his two proffers he had given the government all of the
relevant information he had regarding his crime, most
importantly the names of the other participants. The gov-
ernment countered that Ponce did not deserve the reduction
because he was lying about not being present in Laredo
during the pick-up of the drugs. According to the govern-
ment, Ponce assured the CI that he would be there, and he
was subsequently identified from a photograph by two DEA
agents posing as drivers who maintained he was there. The

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No. 03-2426 3
government also noted that Ponce admitted making a call
to the CI from Little Rock while the drugs were in trans-
port, and that the CI had told him that “he must have
passed the truck on the interstate and that it was behind
him,” still on its way to Chicago. This geographic reference
makes sense, the government argued, only if Ponce had
himself been traveling from Laredo to Chicago. The govern-
ment also noted that Ponce, unlike his co-defendants, had
not been immediately forthcoming in his proffers and that
he did not supply relevant information until first being
confronted with contradictory evidence.
After listening to these arguments, the district court
found that “[t]he government has raised serious questions
about the defendant’s presence in Texas at the time the
shipment was loaded” and that Ponce had not established
“that he was fully cooperative in providing truthful in-
formation” during his interviews. The court consequently
imposed the statutory minimum sentence of ten years’
imprisonment.
The sole issue on appeal is whether the district court
erred in determining that Ponce failed to show that he
truthfully provided all relevant information to the gov-
ernment. The defendant bears the burden of proving he is
eligible for the safety-valve exception. United States v.
Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000). We review
the district court’s determination that a defendant failed to
meet his burden for clear error. United States v. Alvarado,
326 F.3d 857, 860 (7th Cir. 2003).
Under § 5C1.2, a defendant convicted under 21 U.S.C.
§ 846 will be sentenced without regard to any statutory
minimum sentence if the defendant meets five criteria. The
only criterion in dispute here is § 5C1.2(a)(5)—that the
defendant truthfully provided the government with all the
relevant information and evidence he had concerning his
offense. This criterion requires a defendant to make a good-

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4 No. 03-2426
faith attempt to cooperate with the authorities, United
States v. Ramunno, 133 F.3d 476, 482 (7th Cir. 1998), and
volunteer all the relevant information he has concerning his
offense, United States v. Arrington, 73 F.3d 144, 148 (7th
Cir. 1996).
In determining that Ponce was likely present in Laredo
for the pick-up, the district court relied on the government’s
representations at sentencing that Ponce had told the CI
that he would be there and that two DEA agents had
identified him as being present. Ponce argues that these
unsubstantiated representations are insufficient to call into
question the veracity of his own testimony. But on the
question of whether a defendant has offered a truthful and
complete disclosure, the government does not bear the
burden of proof; the burden is on the defendant. Galbraith,
200 F.3d at 1016. A district court has the discretion under
§ 5C1.2 to consider the government’s statements regarding
contradictions and omissions in a defendant’s offer of infor-
mation, see United States v. Ramirez, 94 F.3d 1095, 1102
(7th Cir. 1996); see also United States v. Martin, 287 F.3d
609, 618 (7th Cir. 2002) (holding that Federal Rules of
Evidence do not apply at sentencing hearings), and the
court here did not clearly err in finding that the govern-
ment’s representations cast doubt on Ponce’s denial that he
was present in Laredo for the drug pick-up. Notably, Ponce
did not offer any evidence except for his own testimony to
substantiate his version of the events. Nor does Ponce
dispute that he did not volunteer relevant information at
the second meeting until after first being confronted with
contradictory evidence, and a district court may consider a
defendant’s lack of candor in determining eligibility under
the safety-valve provision. See Ramirez, 94 F.3d at 1102.
A FFIRMED .

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No. 03-2426 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-13-04

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