United States v. Ricardo Maxwell Bowe, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10054
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO MAXWELL BOWE, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80105-DMM-1
____________________
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2 Opinion of the Court 22-10054
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Congress enacted the “safety valve” to permit defendants
convicted of certain crimes to be sentenced below any statutory
minimum if the sentencing court finds that they meet five listed
criteria.
See 18 U.S.C. § 3553(f). Those same criteria have been
incorporated into the Sentencing Guidelines.
See U.S.S.G.
§ 5C1.2(a).
As relevant here, the fifth element under § 3553(f) requires a
defendant to “truthfully provide[] to the Government all infor-
mation and evidence” he has about his offense. 18 U.S.C.
§ 3553(f)(5). “This plain language requires a defendant to both
truthfully and fully disclose information within [his] knowledge re-
lating to the crime for which []he is being sentenced[,]” even if the
information is not useful to the government.
United States v.
Figueroa, 199 F.3d 1281, 1282–83 (11th Cir. 2000);
see United States
v. Thomas, 32 F.4th 1073, 1079 (11th Cir. 2022) (“While
[§ 3553(f)(5)] does not bar a defendant from safety valve relief if he
has no information to share, it is clear it requires a defendant to
share what information he does have.”).
Appellant Ricardo Bowe claims that he should be excused
from this “tell-all” requirement because of fear that harm would
come to him or his family if he did so. Bowe pled guilty to distri-
bution of 28 grams or more of cocaine base,
see 21 U.S.C.
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22-10054 Opinion of the Court 3
§ 841(a)(1), which ordinarily carried a mandatory minimum sen-
tence of five years,
see id. § 841(b)(1)(B)(iii). Without the manda-
tory minimum, his guideline range was 46 to 57 months.
Bowe met all the requirements for relief under the safety
value except for § 3553(f)(5). At sentencing, Bowe acknowledged
not being fully truthful with the government, but he argued for a
“fear-of-harm” exception that would permit the court to grant re-
lief, anyway. He asserted that he lived in a rough neighborhood
and feared harm to himself or his family if he gave a full statement.
The district court found that such an exception was not consistent
with this Court’s precedent, so it imposed the mandatory mini-
mum sentence of 60 months. The court said it would have sen-
tenced Bowe to less time if it had the discretion to do so.
We review
de novo the district court’s understanding of the
scope of its authority under the safety valve.
Figueroa, 199 F.3d at
1282. When construing a statute, we begin, and often end, “with
the language of the statute itself.”
United States v. Steel, 147 F.3d
1316, 1318 (11th Cir. 1998) (
en banc). “Where the language Con-
gress chose to express its intent is clear and unambiguous, that is as
far as we go to ascertain its intent because we must presume that
Congress said what it meant and meant what it said.”
Id. In other
words, when the words of a statute are unambiguous, “judicial in-
quiry is complete.”
Harris v. Garner, 216 F.3d 970, 973 (11th Cir.
2000) (
en banc).
Here, the district court properly denied relief under the
safety valve. Bowe’s proposed fear-of-harm exception to the tell-
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4 Opinion of the Court 22-10054
all provision, § 3553(f)(5), is not consistent with the statutory lan-
guage. The statute Congress enacted authorizes relief from the
mandatory minimum only “if the court finds at sentencing, after
the Government has been afforded the opportunity to make a rec-
ommendation, that” each of the five listed criteria are met. 18
U.S.C. § 3553(f). As relevant, the fifth element states in full,
[N]ot later than the time of the sentencing hearing,
the defendant has truthfully provided to the Govern-
ment 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 de-
fendant has complied with this requirement.
Nothing in this provision can reasonably be construed to
support an exception for cases where a defendant fears harm from
full and truthful disclosure. Nor does Bowe rely on any specific
statutory language. Regardless of any merits it may or may not
have as a policy matter, we lack the authority to craft an exception
that contradicts the plain language of the statute.
See Harris, 216
F.3d at 973;
Steel, 147 F.3d at 1318;
e.g.,
McCarthan v. Dir. of Good-
will Indus.-Suncoast, Inc., 851 F.3d 1076, 1091 (11th Cir. 2017) (
en
banc) (“Congress did not create any exception to section 2255(h)
for non-constitutional changes in law, so we may not craft one.”).
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22-10054 Opinion of the Court 5
Bowe’s proposed fear-of-harm exception to the safety valve
is also inconsistent with our precedent.1 In
Thomas, for example,
we held that a defendant was ineligible for safety-valve relief when
he refused to share all relevant information about a drug operation
with the government. 32 F.4th at 1079. We noted that, in his sen-
tencing memorandum, the defendant stated he did not cooperate
because of safety concerns for himself and his family.
Id. at 1079
n.10. But we explained that the defendant had the “burden to
show, by a preponderance of the evidence, that he met each of the
five safety valve criteria.”
Id. at 1079. Because the defendant chose
not to disclose all information he had regarding the drug operation
and his co-conspirators, we concluded he was not eligible for
safety-valve relief.
Id.;
see also Figueroa, 199 F.3d at 1282 (holding
that § 3553(f)(5) requires “complete and truthful disclosure of [a de-
fendant’s] knowledge of the crime,” even if the information is not
useful to the government).
In short, the plain language of § 3553(f) and our precedent
require defendants to prove all five safety-valve criteria, including
full and truthful disclosure of information about their offense. Be-
cause Bowe admittedly did not do so, even if he had good reasons
1 In addition, every circuit to have addressed the issue has declined to recog-
nize a fear-of-harm exception.
See United States v. Pena, 598 F.3d 289, 292
(6th Cir. 2010);
United States v. Tang, 214 F.3d 365, 371 (2d Cir. 2000);
United
States v. Roman-Zarte, 115 F.3d 778, 785 (10th Cir. 1997);
United States v.
Stewart, 93 F.3d 189, 196 (5th Cir. 1996);
United States v. Montanez, 82 F.3d
520, 523 (1st Cir. 1996).
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6 Opinion of the Court 22-10054
for that choice, he is not eligible for relief under the safety valve.
We therefore affirm his 60-month sentence.
AFFIRMED.
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