United States of America v. Vinson Gales

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2009 Decided April 23, 2010
No. 08-3040
UNITED STATES OF AMERICA ,
APPELLEE
v.
VINSON GALES ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00060-JR-2)
Christopher S. Rhee, appointed by the court, argued the
cause for appellant. With him on the briefs were Justin S.
Antonipillai and Joshua M. Davis, appointed by the court.
Michael T. Ambrosino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roy W. McLeese
III and Chrisellen R. Kolb, Assistant U.S. Attorneys.
Before: SENTELLE , Chief Judge, GINSBURG , Circuit Judge,
and WILLIAMS , Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SENTELLE .

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SENTELLE , Chief Judge: Vinson Gales pled guilty to
distribution of cocaine base and was sentenced to five years
imprisonment, the mandatory minimum. He argues on appeal
that the district court erred when it refused to sentence him to a
lesser prison term under the so-called safety valve provision.
Finding no error, we affirm.
Background
Pursuant to a plea agreement, Gales pled guilty in the
district court to unlawful possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1). After
entering his plea but prior to sentencing, Gales attended a
debriefing session with the government, at which time,
according to Gales, he disclosed to the government all of the
information he had concerning the charged offense. During the
debriefing Gales gave to the government a description of his
drug supplier, whom he admitted he had known for over ten
years, since childhood. At a sentencing hearing a few months
later the district court judge correctly held that a conviction for
the amount of cocaine base specified in the plea agreement, five
grams, carries a mandatory minimum sentence of five years, see
21 U.S.C. § 841(b)(1)(B)(iii). The judge further stated,
however, that Gales was apparently eligible for the safety valve
provision, see U.S. Sentencing Guidelines at Section 5C1.2, 18
U.S.C. § 3553(f), because during his debriefing he had disclosed
to the Government what he knew about the charged offense.
The safety valve provision permits the district court to impose
a sentence below the mandatory minimum if, inter alia, the
defendant prior to sentencing truthfully discloses to the
government all information in the defendant’s possession
concerning the charged offense. The judge stated that pursuant
to the safety valve provision Gales’ Sentencing Guidelines range
would be 46 to 57 months instead of the five year mandatory
minimum. The judge then asked the prosecutor if he had any

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comments, at which point the prosecutor stated that contrary to
the judge’s impression, the government did not believe that
Gales had been fully forthcoming with respect to the charged
offense and the government therefore did not consider Gales to
be safety valve eligible. In particular, the prosecutor related that
at Gales’ debriefing Gales gave untruthful information
concerning the person who supplied him with the cocaine base,
e.g., Gales stated that he only knew his supplier’s first name, but
no last name, and no address. After Gales’ attorney stated that
she disagreed with the prosecutor’s assessment of the
information given to the government by Gales, the judge opined
that he was not sure, as a matter of law, who it is that decides
what is truthful and what is not truthful when the safety valve
provision is under consideration. The court then scheduled a
full hearing on the safety valve issue.
At the safety valve hearing the judge began by reviewing
the positions of the parties. Gales asserted that he was entitled
to be sentenced pursuant to the safety valve provision because
he had told the government everything he knew concerning the
charged offense. The government contended that Gales had not
been truthful about his drug source. The judge then stated that
under the case law Gales had the burden of establishing that he
had truthfully provided to the government everything he knew
about the charged offense, but the judge also stated that he was
not sure how Gales would sustain the burden of proving that he
had not lied about how much he knew. Each of the parties then
put forth proffers. The prosecutor reiterated his position that
Gales had given to the government only minimal information
concerning his drug supplier, e.g., only a one-word name, no last
name, no telephone number, and no address; the prosecutor
opined that, considering the length of time Gales had known his
supplier, on its face Gales’ story did not make sense. Gales’
attorney then proffered that Gales had been truthful and had told
the government all he knew concerning the charged offense. At

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the close of the safety valve hearing the judge concluded that he
could not sentence Gales pursuant to the safety valve provision
because Gales had not truthfully provided to the government all
information he had concerning the charged offense, noting in
particular that Gales stated he knew his supplier only by a one-
word name, no last name, no telephone number, and no address.
At a subsequent sentencing hearing, the judge again stated that
he would not sentence Gales pursuant to the safety valve
provision, finding that it was not credible that Gales could not
remember the name of his supplier or where he lived. In
passing, the judge questioned the practicality of putting the
safety valve credibility decision on the trial judge, particularly
in a situation where, as here, the only evidence put forth was a
proffer by each of the parties. The judge then sentenced Gales
to the five year mandatory minimum.
In a subsequent memorandum opinion, United States v.
Gales, 560 F.Supp. 2d 27 (D.D.C. 2008), the court further
explained its reasons for not sentencing Gales pursuant to the
safety valve provision. The opinion reiterated that the judge had
found Gales’ story implausible in that he “doubted that Gales
would have done regular business with a person about whom he
had such little information.” 560 F.Supp. 2d at 28. The court
held that under the case law the defendant has the burden of
proof “to establish, by a preponderance of the evidence, that he
is entitled to safety valve relief.” Id. (quoting United States v.
Mathis, 216 F.3d 18, 29 (D.C. Cir. 2000)). In most safety valve
cases, the court further noted, the defendant at a debriefing
relates to the government what he or she knows concerning the
charged offense, the government is satisfied, and the safety
valve is applied. But the judge stated that in cases like Gales’,
when the government believes that the defendant is withholding
information or misstating facts, then under this circuit’s
precedents the burden of proof shifts to the defendant. 560
F.Supp. 2d at 28-29 (citing Mathis, 216 F.3d at 29). The court

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ruled that the defendant had not carried that burden and was
therefore not eligible for sentencing under the safety valve
provision.
Gales appeals the district court’s refusal to sentence him
pursuant to the safety valve provision, requesting that we vacate
his sentence and remand his case for resentencing.
Discussion
The safety valve provision, 18 U.S.C. § 3553(f),
incorporated into the United States Sentencing Guidelines
(U.S.S.G.) at § 5C1.2, permits a district court to impose a
sentence below the statutory minimum if, inter alia, the
defendant discloses to the government all information in the
defendant’s possession concerning the offense of conviction.
Prior to enactment of the safety valve provision, “defendants
convicted of certain drug crimes could receive a sentence below
the statutory minimum only on the Government’s motion to
depart downward based on a defendant’s substantial assistance
to the authorities. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1.”
United States v. Shrestha, 86 F.3d 935, 938 (9th Cir. 1996).
Congress enacted the safety valve provision in order to provide
similar sentencing relief to lower level offenders who were
willing to cooperate with the government but did not possess
information of substantial assistance. Id.
Section 5C1.2 sets forth five criteria for invocation of the
safety valve provision. The first four criteria, not at issue here,
require that the defendant be a nonviolent offender who played
a minor role in the offense. The fifth criterion requires 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

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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.
U.S.S.G. § 5C1.2(a)(5); 18 U.S.C. § 3553(f)(5).
In United States v. Alvarado-Rivera, 412 F.3d 942, 947 (8th
Cir. 2005), the Eighth Circuit noted that pursuant to the safety
valve “it is the district court which is to determine at sentencing
whether the requirements for the benefit have been met,
including whether a defendant has furnished truthful
information.” And this Circuit has previously held that the
defendant “bears the burden to establish by a preponderance of
the evidence that he is entitled to safety valve relief.” Mathis,
216 F.3d at 29. See also United States v. Stephenson, 452 F.3d
1173, 1179 (10th Cir. 2006) (concluding that “[t]he defendant
bears the burden of proving by a preponderance of the evidence
that he is entitled to safety-valve adjustment”); United States v.
Montanez, 82 F.3d 520, 523 (1st Cir. 1996) (“[I]t is up to the
defendant to persuade the district court that he has ‘truthfully
provided’ the required information and evidence to the
government.”). We review factual findings of the district court
made under the safety valve provision, including credibility
determinations, under the clearly erroneous standard. In re
Sealed Case, 105 F.3d 1460, 1462 (D.C. Cir. 1997).
Gales puts forth two main arguments on appeal: first, he
contends that the district court incorrectly applied the burden of
proof to him under the safety valve provision; and second, he
claims that the district court erred when it concluded that Gales’
story concerning his drug supplier was not credible. We address

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these arguments in reverse.
Gales argues that the district court’s determination that his
description of his drug supplier was not credible on its face is
not supported by the record. He contends that for more than 45
minutes during his debriefing he provided the government with
detailed information about his supplier and that the government
offered no testimony, other evidence, or proffer to contradict
any of his account. In support of his argument, Gales cites
Jackson v. United States, 353 F.2d 862 (D.C. Cir. 1965), for the
proposition that in order for the district court to find that
information from a witness is inherently incredible, “that
information must ‘contain[] internal contradictions and [be]
contrary to human experience.’” Appellant’s Brief at 17
(quoting Jackson, 353 F.2d at 867 (alterations in the brief)).
That is not, however, what the Jackson case held. The quoted
language stated the reason for the court’s holding that a
particular witness’s testimony should have been discredited in
that particular case. Neither Jackson nor any other case from
our circuit establishes as mandatory the criteria for which
appellant contends. The Jackson panel did, however, opine
helpfully that “[i]n some cases . . . testimony[] will simply be
too weak and too incredible, under the circumstances, to
accept.” 353 F.2d at 867.
Citing United States v. Jones, 913 F.2d 1552, 1559 n.7
(11th Cir. 1990), Gales contends that to justify its finding the
district court would have had to conclude that his account of his
drug supplier was “unbelievable on its face” or “‘so contrary to
the teachings of human experience’ that no rational person could
believe it.” Id. Like the Jackson court, the Jones court was
reciting, not the test that a district judge must employ in
determining credibility, but the standards that a court of appeals
was employing—or in that case finding inapplicable—in
reviewing the credibility determinations of a district court.

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Therefore, even if the Jones case were a binding holding of this
circuit, it would not compel us to find clear error by the district
court. We do, however, find a decision of the First Circuit
helpful in our analysis.
In United States v. Montanez, 82 F.3d 520 (1st Cir. 1996),
the defendant, like Gales, pled guilty to charges of drug
distribution. He argued that he had fulfilled the requirements of
the safety valve provision because he had sent to the government
a letter purporting to contain information concerning the drug
sales. The government, however, claimed that the letter was
insufficient, pointing out various omissions, including who
supplied the defendant with the drugs. In affirming the district
court’s denial of relief under the safety valve, the First Circuit
stated that the government was “perfectly free to point out the
suspicious omissions at sentencing, and the district court [was]
entitled to make a common sense judgment.” 82 F.3d at 523.
So too here. Although Gales is correct that the government did
not offer any hard evidence of its own contradicting Gales’
account, the government did argue to the district court that
Gales’ inability to identify more concretely his supplier was
simply not credible. The district court, in turn, was entitled to
consider the government’s point and make reasonable inferences
from the evidence. “[N]othing prevents a district court from
deciding that it is unpersuaded of full disclosure.” Montanez, 82
F.3d at 523. The district court did not clearly err in thinking it
highly unlikely that Gales did not have any further information
on the identity of his steady supplier, whom he claimed to have
known for ten years, beyond the vague description given to the
government. We think it evident that the district court did not
commit clear error in denying him the safety valve adjustment.
See United States v. Stephenson, 452 F.3d 1173, 1181 (10th Cir.
2006).

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Having disposed of Gales’ credibility argument, we next
address his argument that the district court incorrectly applied
the burden of proof to him under the safety valve provision.
Gales contends that the district court “misunderstood and
misapplied” the burden of proof under the safety valve
provision, claiming that after the government expressed its
doubts to the district court about Gales’ story concerning his
drug supplier, the district court shifted the burden of proof to
Gales to prove that he had not lied. Gales argues that such an
“impossibly high burden” is not imposed by the law. Instead he
claims that once he made a credible showing that his story was
truthful and complete, it was the government’s burden to present
evidence showing otherwise. In support of this claim Gales
cites United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir.
1996), in which the First Circuit held that where a defendant has
credibly demonstrated that she has provided the government
with all the information she was reasonably expected to possess,
in order to defeat that demonstration, the government must come
forward with some sound reason to suggest otherwise. 96 F.3d
at 529 n. 25. The First Circuit’s holding, while not binding upon
us, seems sensible but inapplicable. As the First Circuit stated,
“[b]y this analysis, we do not suggest any change in the
defendant’s ultimate burden of proof under U.S.S.G. § 5C1.2.”
That circuit only opined that where the defendant has made such
a credible demonstration, the government then has some burden
of going forward. As the district court in this case found that the
defendant’s proffer was not credible, even if we were to follow
the First Circuit, the Miranda-Santiago rationale would not
permit us to find clear error.
Gales also looks for support in United States v. Shrestha, 86
F.3d 935 (9th Cir. 1996). In that case, the government appealed
from a district court decision applying a safety valve reduction.
The district court had held that the defendant had provided to the
Government the name of his drug source but the Government

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argued that the defendant had perjured himself during trial and
was therefore automatically disqualified from safety valve
eligibility. The Ninth Circuit held that the district court had not
erred: as the defendant had provided the government with
complete information by the time of the sentencing hearing, as
the safety valve provision requires, the defendant was safety-
valve eligible. 86 F.3d at 940. Again, Shrestha does not support
Gales’ argument. Like the First Circuit, the Ninth Circuit
opined that “[t]he initial burden is incontestably on the
defendant to demonstrate by a preponderance of the evidence
that he is eligible for the reduction. Once he has made this
showing, however, it falls to the Government to show that the
information he has supplied is untrue or incomplete.” Id. at 940
(citation omitted). We need not determine whether we agree
with the Ninth Circuit as to the second step it sets forth
(assuming that the second quoted sentence is speaking of a
sequential step). As we stated above, Gales has not met the first
step. As Gales failed to carry his burden of establishing by a
preponderance of the evidence that he was entitled to safety
valve relief, Mathis, 216 F.3d at 29, we conclude that there was
no incorrect application by the district court of the burden of
proof to the defendant.
Finally, Gales contends that when the district court stated
that the way the safety valve works is for Gales to give the
government “the answer they want,” the court was giving the
government the same discretion it has pursuant to the
Sentencing Guidelines’ substantial assistance provision,
U.S.S.G. § 5K1.1. That is, the district court was allowing the
government to prevent him from receiving relief under the
safety valve. According to Gales, this was not Congress’ intent.
As noted above, pursuant to § 5K1.1, a departure from the
guidelines is allowed if the government has filed a motion with
the court stating that the defendant has provided substantial
assistance in its investigation of the underlying offense. In

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contrast, no such motion is required under the safety valve
provision; rather, it is the sentencing court that determines
whether the defendant has met the safety valve criteria. Here,
after considering the proffers made by the parties at the safety
valve hearing, the district court concluded that Gales had not
established that he had truthfully provided to the government all
information he had concerning the offense, and the court
therefore held it unlawful to invoke the safety valve provision.
The court supported this conclusion by holding in its
memorandum opinion that Gales was not eligible for the safety
valve because the court had found his story implausible. 560
F.Supp. 2d at 28. Consequently, we agree with the government
that the district court’s conclusion was consistent with the
underlying purposes and established criteria of the safety valve
provision.
Conclusion
For the foregoing reasons we affirm the judgment of the
district court.

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