Terry Harrington v. City of Council Bluffs

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1992
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Naim Omari Page, *
* [PUBLISHED]
Appellant. *
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Submitted: December 12, 2011
Filed: April 5, 2012
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Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Naim Omari Page pled guilty to one count of conspiring to distribute and to
possess with intent to distribute more than 100 kilograms of marijuana in violation
of 21 U.S.C. §§ 841(a)(1) and 846. At the sentencing hearing, the district court1
denied Page's request for safety valve relief and sentenced him to the 60-month
mandatory minimum sentence. Page now appeals the district court's denial of his
request for safety valve relief. We affirm.
The Honorable J. Leon Holmes, United States District Judge for the Eastern1
District of Arkansas.

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The indictment in this case spans a decade, charging Page with conspiring to
distribute and to possess with intent to distribute marijuana from 1999 through 2009.
During that time, Page was arrested at least twice in connection with high-volume
deliveries of marijuana. During a 2007 marijuana investigation, Page admitted that
since 1999 he had obtained over 800 pounds of marijuana from a source in Texas.
In connection with the instant indictment and conviction, Page provided the
government with information he gathered while serving a marijuana-related sentence
in Arizona state prison, and he also cooperated with law enforcement regarding his
drug operations in the Little Rock, Arkansas area.
At sentencing, Page argued that his cooperation with the government qualified
him for the safety valve relief provided in 18 U.S.C. § 3553(f). Under that provision,
the district court may impose a sentence below the mandatory minimum if it finds at
sentencing that, inter alia, "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." 18
U.S.C. § 3553(f)(5). The district court denied Page's request for safety valve relief,
finding that Page had not satisfied the requirements of § 3553(f)(5). Specifically, the
district court reasoned that because it was uncontested that Page had not provided any
information regarding the identity of his customers in the Little Rock area, Page had
failed to provide all the required information.
"We will overturn a district court's findings with respect to safety valve
eligibility only if they are clearly erroneous." United States v. Guerra-Cabrera, 477
F.3d 1021, 1024–25 (8th Cir. 2007). "Affirmance is required if the record supports
the court's findings, regardless of which party is favored." United States v. Alvarado-
Rivera, 412 F.3d 942, 947 (8th Cir. 2005) (en banc). "Defendants bear the burden of
establishing that they have met each of the five eligibility requirements, including that
they have provided truthful information to the government." Guerra-Cabrera, 477
F.3d at 1025.
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Page argues that the district court rested its finding entirely on the
government's bare assertion that "we do not believe [Page]." This is simply not the
case. The district court engaged in an extended discussion with Page's counsel
concerning Page's failure to implicate any downstream participants in the operation.
Considering the volume of marijuana that Page admitted to purchasing, we cannot say
that the district court committed clear error in concluding that Page had not fully
cooperated. "To merit safety valve treatment a defendant must . . . disclose whatever
information he has about his offense, and the district court can hold him accountable
for revealing the identities and participation of others involved in the offense if it
could reasonably be expected he would have such information." Guerra-Cabrera, 477
F.3d at 1025. Indeed, "[i]n making its assessment of the truthfulness of a safety valve
proffer, the district court is entitled to draw reasonable inferences from the evidence.”
Alvarado-Rivera, 412 F.3d at 948. In this case, it is reasonable to infer that Page
worked with—and withheld the identities of—downstream co-conspirators. We
affirm the judgment of the district court.
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