Argued Dec. 17, 2013.
Sheri H. Mecklenburg, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Robert L. Rascia, Pablo F. DeCastro, Rascia & DeCastro, Chicago, IL, for Defendant-Appellant.
Before FLAUM, SYKES, and TINDER, Circuit Judges.
FLAUM, Circuit Judge.
Fernando Acevedo-Fitz pleaded guilty to conspiracy to possess heroin with intent to distribute, 21 U.S.C. § 841(a)(1). The drug quantity was at least a kilogram, and the district court sentenced Acevedo-Fitz to the corresponding statutory minimum of 120 months' imprisonment after concluding that he was ineligible for the " safety valve." See id. § 841(b)(1)(A)(i); 18 U.S.C. § 3553(f). Acevedo-Fitz had been caught lying during several safety-valve debriefings, and on appeal he essentially contends that, despite his lies, he came clean before sentencing and thus was entitled to benefit from the safety valve. We conclude, however, that Acevedo-Fitz forfeited any entitlement to the safety valve by attempting to secure that benefit through deception. Moreover, the district court did not believe that Acevedo-Fitz ever told the entire truth, and that finding is both amply supported by the record and reason enough to affirm the's sentence.
After an investigation conducted by the Drug Enforcement Administration and the Chicago Police Department, the government filed a criminal complaint in June 2011 charging Acevedo-Fitz, Luis Gambino, and others with drug crimes including seven heroin sales totaling 4.75 kilograms during August through December 2010. The investigation also revealed a March 2011 transaction involving what was then believed to be an undetermined quantity of cocaine, but later was determined to be heroin. Acevedo-Fitz and Gambino came to the DEA's attention as a result of the investigation of their principal customers, Domingo Blount and Gabriel Bridges.
In September of 2011 Acevedo-Fitz was indicted for conspiracy, 21 U.S.C. §§ 846, 841(a)(1), three substantive counts of distributing heroin, id. § 841(a)(1), and three counts of using a communication facility in committing a felony drug crime, id. § 843(b). Acevedo-Fitz pleaded guilty to the conspiracy, and the government dropped the remaining charges. In a written, signed Petition to Enter a Plea of Guilty, Acevedo-Fitz admitted that on " several occasions" from August 2010 through February 2011 he and Gambino had distributed varying quantities of heroin, principally to Domingo Blount and Gabriel Bridges. Then during the plea colloquy the defendant admitted— under oath— these same facts.
Three months before sentencing the government submitted a memorandum arguing that Acevedo-Fitz was ineligible for the safety valve. The government contended that Acevedo-Fitz had failed to comply with the requirement that he provide " all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct." The government explained that Acevedo-Fitz had twice participated in safety-valve debriefings during January 2013 but lied on both occasions. Only when the defendant was confronted with evidence of his lies, the government continued, did he admit what investigators already knew. The government asserted that Acevedo-Fitz could not satisfy his burden of establishing eligibility for the safety valve because his disclosures had been untrue and incomplete.
In support of this memorandum, the government attached the Investigation Report detailing what had occurred during the two safety-valve debriefings. During the first session Acevedo-Fitz denied trafficking drugs before June 2011, and he also denied dealing directly with customers. Only after a prosecutor confronted him with recorded conversations about a September 2010 transaction did Acevedo-Fitz admit that those conversations concerned an order for 1 kilogram of heroin. The government then ended the session to give Acevedo-Fitz a chance to review with counsel all of his conversations recorded during a wiretap.
During the second debriefing, Acevedo-Fitz stated that he supplied 1 kilogram of heroin to Gambino on a single occasion but did not engage in any other drug transactions. Those assertions cannot be reconciled with the defendant's admissions before and during the guilty-plea colloquy, and when an agent challenged his truthfulness, Acevedo-Fitz sad that he needed to listen to the intercepted calls. When the agent confronted him with the details from his multiple heroin transactions, Acevedo-Fitz replied, " That's a lie." He denied recollection of five of the transactions but said he " might recall the details" if the agents would play the intercepted telephone conversations. During the latter part of the debriefing, Acevedo-Fitz went so far as to deny even recognizing the name " Bridges," despite his earlier written and oral admissions that Bridges was one of his two principal customers. Before the debriefing ended, Acevedo-Fitz told agents about the distribution process, rent payments, and a description of the heroin he obtained from his suppliers.
Acevedo-Fitz objected to the presentence report and to the government's memorandum. He argued that the safety valve should be applied despite his lies during the two debriefings because months later, in May 2013, he sent the government a letter that, on his view, constituted a complete and truthful disclosure prior to sentencing. In that letter (which counsel wrote but Acevedo-Fitz signed) the defendant identified his primary customers and his heroin supplier, admitted his participation in ...