UNITED STATES of America, Appellee, v. Carlos MARTINEZ, Defendant-Appellant.

No. 09-3706-cr.United States Court of Appeals, Second Circuit.
May 25, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the United States District Court for the Southern District of New York (Daniels, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED ANDDECREED that the judgment of the district court beAFFIRMED.

Laurie S. Hershey, Manhasset, NY, for Appellant.

Reed M. Brodsky, Andrew L. Fish, for Preet Bharara, United States Attorney’s Office for the Southern District of New York, New York, NY, for Appellees.

PRESENT: DENNIS JACOBS, Chief Judge, ROGER J. MINER and RICHARD C. WESLEY, Circuit Judges.

SUMMARY ORDER
Carlos Martinez challenges his sentence, arguing that the district court erred in denying him safety-valve relief and in concluding that he was a leader or organizer of a drug conspiracy. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Martinez argues that he discharged his burden of proving eligibility for safety-valve relief, see 18 U.S.C.G. § 3553(f); U.S.S.G. § 5C1.2(a), and that the district court erred in concluding otherwise. Reviewing the district court’s factual findings for clear error and its legal conclusion de novo, United States v. Nuzzo, 385 F.3d 109, 118 (2d Cir. 2004), we disagree. Martinez had to prove, inter alia, that “not later than the time of the sentencing hearing,” he “truthfully provided to the Government all information and evidence [he] 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); see also United States v. Jimenez, 451 F.3d 97, 102-03 (2d Cir. 2006). Martinez misled the government in two safety-valve proffer sessions. Moreover, his testimony at the sentencing hearing — which he now says is the truth — conflicts with the documentary evidence. On this record, we cannot say that the district court erred in finding Martinez ineligible for safety-valve relief. Accord Nuzzo, 385 F.3d at 119 n. 25 (“While a district court may find the [truthful proffer]

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criterion of the safety valve satisfied despite prior lies and omissions, neither a district court nor this Court is precluded from considering those prior lies and omissions in determining whether the defendant has met his burden of proving that the information provided as of sentencing is complete and truthful.”); United States v. Schreiber, 191 F.3d 103, 107 (2d Cir. 1999) (“[A]n untruthful defendant risks the possibility that his or her lies will be exposed at the sentencing hearing itself, thus disqualifying the defendant from relief.”).

Martinez argues that the district court erred in finding that he was an organizer or leader in the drug conspiracy for purposes of Sentencing Guideline § 3B1.1. Our review is for clear error, United States v. Cuevas, 496 F.3d 256, 267 (2d Cir. 2007), and we find none. An experienced police detective testified that recorded conversations between Martinez and a confidential source revealed Martinez to be a leader of the drug conspiracy; and Martinez himself testified that he had hired at least one worker for his drug distribution business. This evidence provides a sufficient basis for the district court’s conclusion that Martinez was a leader or organizer of the drug conspiracy.[1]

Finding no merit in Martinez’s remaining arguments, we herebyAFFIRM the judgment of the district court.

[1] Additionally, this finding provides independent justification for the district court’s conclusion that Martinez is ineligible for safety valve relief. See 18 U.S.C. § 3553(f)(4).
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