USA v. Tony Gastineau

1The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1702
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Bob Travis McKisick, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 16, 2007
Filed: February 22, 2007
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Before RILEY, MAGILL, and MELLOY, Circuit Judges.
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PER CURIAM.
Bob McKisick pleaded guilty to possessing with intent to distribute 50 grams
or more of cocaine base. See 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). The district court 1
sentenced him to the statutory minimum of 120 months in prison. On appeal,
McKisick argues that the district court erred in denying him safety-valve relief from
the statutory minimum sentence.

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As one of the criteria for safety-valve relief, the defendant must have “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.” U.S.S.G. § 5C1.2(a)(5). We conclude that the district
court did not clearly err in finding McKisick failed to meet this requirement. See
United States v. Alarcon-Garcia, 327 F.3d 719, 721 (8th Cir. 2003) (standard of
review). While such a finding must rest on more than the government’s mere opinion
that a defendant has been untruthful, see United States v. Kang, 143 F.3d 379, 382-83
(8th Cir. 1998), the government offered supporting testimony at sentencing, and
McKisick did not carry his burden of showing affirmatively that the information he
gave the government was truthful and complete, see United States v. Alvarado-Rivera,
412 F.3d 942, 947 (8th Cir. 2005) (en banc), cert. denied, 126 S. Ct. 1096 (2006).
Given McKisick’s ineligibility for safety-valve relief under 18 U.S.C. § 3553(f), and
the absence of a government substantial-assistance motion under 18 U.S.C. § 3553(e),
the district court had no authority to sentence McKisick below the statutory mandatory
minimum. See United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003).
Accordingly, we affirm.
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