US v. Joaquin Vicencio

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00015-GEC-1 Copies to all parties and the district court/agency. [999804253].. [14-4724, 14-4746]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4724

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOAQUIN GONZALEZ VICENCIO, a/k/a Joaquin Gonzalez Chairez,
Defendant - Appellant.

No. 14-4746

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOAQUIN BERUMEN CORTES,
Defendant - Appellant.

Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge; Michael F. Urbanski, District Judge.
(5:13-cr00015-GEC-1; 5:13-cr-00015-GEC-2)

Argued:

December 8, 2015

Decided:

Before MOTZ, KING, and KEENAN, Circuit Judges.

April 26, 2016

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Affirmed by unpublished per curiam opinion.

ARGUED: Michael Thayer Hemenway, THE LAW OFFICES OF MICHAEL T.
HEMENWAY, Charlottesville, Virginia; Russell Darren Bostic,
BOSTIC & BOSTIC, PC, Harrisonburg, Virginia, for Appellants.
Elizabeth G. Wright, OFFICE OF THE UNITED STATES ATTORNEY,
Harrisonburg, Virginia, for Appellee.
ON BRIEF: Anthony P.
Giorno, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
The
Berumen

defendants,
Cortes,

District
and

of

were

Virginia

using

a

Joaquin
convicted
for

convicted

sentenced

and

Joaquin

the

Western

in

manufacturing
on

Berumen
for

Vicencio

sentenced

substance

marijuana.

States.

and

conspiracy,

hazardous

manufacturing
and

Gonzalez

federal

Cortes

illegally

marijuana,
land

was

reentering

while

separately
the

United

Gonzalez Vicencio and Berumen Cortes maintain that the

district court committed error as to Count Three.

Specifically,

they argue — for the first time on appeal — that the government
failed to prove, in connection with their hazardous substance
convictions,

that

they

Additionally,

Berumen

knew

Cortes

they

were

challenges

on

the

federal

district

land.
court’s

denial of sentencing relief under the safety valve provision of
18

U.S.C.

§ 3553(f).

As

explained

below,

we

reject

their

contentions and affirm.

I.
A.
On August 1, 2013, the federal grand jury in Harrisonburg,
Virginia,
Vicencio

returned
and

a

Berumen

four-count
Cortes.

indictment
Count

One

against
charged

Gonzalez
them

with

conspiracy to manufacture marijuana, in violation of 21 U.S.C.
§ 846.

Count Two alleged a substantive marijuana manufacturing
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offense under 21 U.S.C. § 841(a)(1) and (b)(1)(A).

Count Three

charged the two defendants with using a hazardous substance on
federal land while manufacturing marijuana and thereby causing
environmental damage, in contravention of 21 U.S.C. § 841(b)(6).
Finally,

Count

reentering

the

Four

charged

United

Berumen

States,

in

Cortes

with

violation

illegally

of

8

U.S.C.

§ 1326(a).
B.
In December 2013, the district court conducted the threeday

jury

trial

Harrisonburg.

of

Gonzalez

We

recite

Vicencio

the

favorable to the government.

and

evidence

Berumen
in

the

Cortes
light

in

most

See United States v. Perry, 757

F.3d 166, 175 (4th Cir. 2014).
1.
In

June

2013,

Agent

Willis,

an

officer

of

the

Virginia

State Police and supervisor of the Alleghany Highlands Drug Task
Force, responded to an informant’s report that “somebody had
been growing something” in the George Washington National Forest
in Highland County, Virginia (the “National Forest”).
24. 1

See J.A.

Willis met with the informant, and they walked together a

few hundred feet into the National Forest.
1

As they crested a

Citations herein to “J.A. __” and “S.J.A. __” refer to the
contents of the Joint Appendix and Supplemental Joint Appendix
filed by the parties in these appeals.

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small hill, Willis saw a partially cleared area where a plot of
marijuana plants was growing.

Although the informant advised

that there were other suspicious plots nearby, Willis decided
that they should withdraw from the area for safety reasons.
Upon leaving the National Forest, Agent Willis reported his
discovery

of

marijuana

to

state

and

federal

law

enforcement

authorities, including the United States Forest Service.

A few

days later, on the morning of July 2, 2013, four officers —
Willis, Agent Mullins of the State Police, and Forest Service
Officers Fisher and Buchanan — went to the marijuana plot to
install surveillance cameras to gather intelligence.
and

Mullins

were

installing

the

cameras,

Willis

As Fisher
spotted

strange-looking object up the hill from their location.

a

After

examining the object through binoculars, Willis determined that
it was probably a tent or a tarp and decided to investigate
further.
Agent Willis and Officer Buchanan soon found a well-worn
path leading up the hill, which they followed from the marijuana
plot toward the object.

In less than a minute, they arrived at

a campsite, which consisted of a tent covered by a tarp and
enclosed within a small corral, plus a kitchen area covered by a
second tarp.
about.
campsite,

After

They also saw various gardening tools scattered
announcing

Willis

heard

their

identity

movements
5

inside

and
the

presence
tent.

at

the

Willis

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advised the tent’s occupants — first in English and then in
Spanish — to come out and surrender with their hands up.

In

response, Gonzalez Vicencio and Berumen Cortes emerged from the
tent

and

were

arrested.

Agent

Mullins

and

Officer

Fisher

promptly joined their colleagues at the campsite, having heard
Willis’s commands from down the hill.

Willis and Buchanan left

the two suspects with Mullins and Fisher and quickly surveyed
the surrounding area for others, but found no one.

The officers

then returned to their vehicles — with Gonzalez Vicencio and
Berumen Cortes in tow — and sought backup support to gather the
marijuana and other evidence.
Further investigation of the area near the campsite led to
the discovery of three additional marijuana plots, all within
the National Forest and connected to the campsite by walking
paths. 2

The four plots were located on land cleared of natural

underbrush, and each plot consisted of hundreds of mounds of
store-bought topsoil where marijuana plants were growing.

The

officers ultimately seized nearly 5,000 marijuana plants from
the four plots.

2

More specifically, in terms of geography, the marijuana
plots were located less than two miles east of the West
Virginia-Virginia line, in the watershed of the northern branch
of Scaffold Run. Formed on the eastern slope of the continental
divide, Scaffold Run flows east to Back Creek, the Jackson
River, and then to the James River and the Chesapeake Bay.

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The

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officers

also

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found

trash

littered

throughout

the

campsite and marijuana plots, including candy wrappers, empty
topsoil bags, and plastic cups that had been used for marijuana
seedlings.
stream,

One trash heap, located within a few feet of a

contained

several

empty

containers

for

fertilizer,

insecticide, pesticide, rat poison, and other animal repellants.
Some of the empty containers bore the marks of animal teeth.
Back at the campsite, the officers found and seized the
defendants’ cell phones, a notepad, and a day planner.

Berumen

Cortes’s cell phone contained a photograph of himself at the
campsite, plus various photographs of the marijuana plots and
seedlings growing in plastic cups.

The notepad, labeled with

Berumen Cortes’s name, documented prior work by the defendants
at the site and contained notations such as “we watered” and
“threw fertilizer.”

See J.A. 474-75.

One notation indicated

that Berumen Cortes had planted seeds on May 13 and 14, 2013.
The day planner, found in a plastic bag with Gonzalez Vicencio’s
cell phone, had dates crossed out from June 2 through July 1,
2013, and contained notations about work completed during that
thirty-day

period,

including

spreading

fertilizer,

removing

seeds, and fumigating the plots.
2.
At

trial,

the

government

introduced

the

cell

phone

photographs, Berumen Cortes’s notepad, and Gonzalez Vicencio’s
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day planner, as well as maps, photographs, and video footage
that

detailed

campsite,
various

and

the

locations

the

entries

trash

from

heap

Berumen

of

the

in

marijuana

the

National

Cortes’s

notepad

plots,

Forest.
and

the
The

Gonzalez

Vicencio’s day planner were translated from Spanish into English
and introduced into evidence.
The

prosecutors

post-arrest

also

statements,

introduced
which

they

the

defendants’

made

during

separate

interviews

conducted by Forest Service officers with the assistance of a
Spanish-language

interpreter.

In

their

statements,

Gonzalez

Vicencio and Berumen Cortes each admitted planting approximately
600 to 700 marijuana plants, watering the plants, and spreading
fertilizer

on

the

marijuana

plots.

Both

knowing that growing marijuana was illegal.
assisted

them

in

the

marijuana

growing

men

acknowledged

When asked who had
operations,

Berumen

Cortes explained that he had agreed to tend to the marijuana
plots after meeting a man named “Jesus” earlier that year at a
bar in Harrisonburg.

According to Berumen Cortes, he was to be

paid for his work by Jesus after harvesting the marijuana yield.
Gonzalez Vicencio also said that he worked for Jesus, whom he
had

met

likewise

two

years

explained

earlier
that

conclusion of his work.

at

he

a

bar

would

in

North

receive

Carolina,

payment

at

and
the

Finally, both Gonzalez Vicencio and

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Berumen

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Cortes

drew

maps

of

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the

area

where

they

had

been

apprehended, which showed the campsite and the marijuana plots.
The
The

government’s

first

expert,

a

evidence
DEA

included

special

two

agent,

expert

explained

marijuana plants were four to six weeks old.
an

environmental

conservation

witnesses.

specialist,

that

the

The second expert,
described

how

the

substances found in the trash heap degrade the National Forest’s
ecosystem.

The

conservation

specialist

explained

that

those

chemicals and pesticides posed significant hazards to wildlife.
Indeed, they kill insects and small animals and poison larger
organisms
leaching

further
of

up

those

the

food

products

chain.

into

Moreover,

streams,

the

according

gradual
to

the

expert, “would cause continual damage” to the environment.

See

J.A. 382.
After the government rested, Gonzalez Vicencio and Berumen
Cortes
Federal

sought
Rules

judgments
of

of

Criminal

acquittal

Procedure.

under
With

Rule

29

respect

of
to

the

Count

Three, they each contended that there was insufficient evidence
that they had used the hazardous substances found in the trash
heap near the campsite.

Neither asserted, however, that there

was

that

a

lack

of

evidence

he

knew

marijuana plots were on federal land.

the

campsite

the

The prosecutors opposed

the Rule 29 motions, and the district court denied them.

9

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3.
Gonzalez

Vicencio

testified

in

his

own

defense.

He

admitted having been at the campsite with Berumen Cortes, but
only

for

the

week

preceding

their

arrests.

Regarding

the

previous three months, Gonzalez Vicencio claimed he had been
living in White Post, Virginia, a town approximately 150 miles
from the marijuana plots.

Indeed, he produced a traffic ticket

issued on April 15, 2013, in Manassas, Virginia.
bore

his

signature

and

a

White

Post

The ticket

address,

and

Gonzalez

Vicencio explained that he had responded to the ticket in court
in

June

2013.

Gonzalez

Vicencio

also

said

that

Jesus

had

offered him work, but had not explained what the work would be.
Jesus had driven Gonzalez Vicencio and Berumen Cortes to the
campsite

and

abandoned

Gonzalez

Vicencio

them

asserted

without

that

he

further

and

instructions.

Berumen

Cortes

did

nothing during the week they were at the campsite, and were
awaiting the return of Jesus when they were arrested.
Gonzalez

Vicencio

acknowledged

that

the

officers

had

interviewed him after his arrest, but said that he told them he
did not know how many plants were at the site.

Only after an

officer “insisted” that Gonzalez Vicencio provide an estimate
did he state that “there would be about 650 to 700” marijuana
plants.

See J.A. 395.

Nevertheless, Gonzalez Vicencio denied

planting, watering, or fertilizing any of the plants, and said
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had

plants either.

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never

seen

Berumen

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Cortes

do

anything

with

the

Gonzalez Vicencio explained that he drew the map

of the campsite area because one of the officers told him to do
so.
Berumen Cortes did not testify, and the defendants called
no other witnesses.

Gonzalez Vicencio and Berumen Cortes then

renewed

29

their

incorporating

Rule
the

motions

arguments

government’s evidence.

they

for

judgments

raised

at

of

the

acquittal,

close

of

the

The district court denied the renewed

motions.
Following closing arguments by counsel, the district court
instructed the jury.

As pertinent here, the prosecutors and

defense counsel had agreed to instructions on Count Three that
tracked the statutory language of 21 U.S.C. § 841(b)(6).

As to

that count, the court instructed:
For you to find a defendant guilty of Count Three
. . . , you must be convinced that the government has
proven each of the following elements beyond a
reasonable doubt . . . :
First, that the defendant manufactured
attempted
to
manufacture
marijuana,
controlled substance;

or
a

Second, that the defendant knowingly or
intentionally used a poison, chemical, or
other hazardous substance on federal land;
Third, that such use either (a) created a
serious hazard[] to humans, wildlife, or
domestic animals; or (b) degraded or harmed
the environment or natural resources; or (c)
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polluted an aquifer, spring, stream, river,
or body of water.
See S.J.A. 757.
verdicts

After briefly deliberating, the jury returned

convicting

Gonzalez

Vicencio

and

Berumen

Cortes

on

Count Three and all other charges in the indictment.
C.
On

September

10,

2014,

Vicencio

and

Berumen

Gonzalez

presentence
range

of

97

Guidelines,
criminal

report
to

(“PSR”)

121

premised

history

a

category

district

Cortes.

initially

months
on

the

in

total
of

I.

court
Berumen

calculated

prison

sentenced

under

offense

level

Because

Cortes’s

an

the
of

advisory
Sentencing
30

Berumen

and

a

Cortes’s

convictions on Count One and Count Two each carried 120-month
statutory

minimum

sentences,

however,

the

PSR

arrived

at

an

advisory Guidelines range of 120 to 121 months.
Berumen Cortes raised two objections to his PSR.

First, he

objected to the PSR’s failure to afford him a reduction for
acceptance
3E1.1.

of

responsibility,

pursuant

to

Guidelines

section

Second, he claimed eligibility for relief from the 120-

month statutory minimum under the safety valve provision of 18
U.S.C. § 3553(f), which permits a sentencing court to impose a
sentence within a Guidelines range below a statutory minimum
when the defendant has truthfully provided “to the government
all information and evidence [he] has concerning the offense or

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offenses that were part of the same course of conduct or of a
common

scheme

disclosure.

or

plan,”

i.e.,

a

complete

See 18 U.S.C. § 3553(f).

and

truthful

The prosecutors opposed

both objections.
In opposing Berumen Cortes’s request for § 3553(f) relief,
the prosecutors explained that Berumen Cortes had not made the
required

disclosure.

Specifically,

when

the

prosecutors

met

with Berumen Cortes for a presentencing proffer session, the
“discussion went back and forth” on relatively simple questions
like where Berumen Cortes lived.

See J.A. 562.

After several

breaks in the questioning, Berumen Cortes’s counsel ended the
proffer session, and it was never rescheduled.

The prosecutors

were thus unable to ask Berumen Cortes numerous questions about
various activities relating to the scheme and plan, including
the origin of the marijuana seeds, the day-to-day operations at
the

marijuana

plots,

the

details

of

how

Jesus

had

recruited

Berumen Cortes, and how the defendants had obtained the food and
supplies found at the campsite.
counsel

acknowledged

that

the

In response, Berumen Cortes’s
proffer

session

was

fruitless,

explaining that Berumen Cortes had been “confused about some of
the

questions.”

See

id.

at

569.

The

lawyer

maintained,

however, that Berumen Cortes “never denied or challenged that he
was involved with the marijuana.”

See id.

Moreover, Berumen

Cortes’s lawyer argued that Berumen Cortes had already disclosed
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everything he knew about the marijuana plots in his post-arrest
statement to the Forest Service officers and in an interview
with

the

probation

prosecutors

were

officer.
simply

According

speculating

to

the

that

lawyer,

Berumen

the

Cortes

possessed more information.
Ultimately, the district court sustained Berumen Cortes’s
objection to the PSR regarding his acceptance of responsibility,
but overruled his safety valve objection.
court

found

required

by

that

Berumen

§ 3553(f),

forthcoming

about

acceptance

of

his

In so ruling, the

Cortes

had

not

made

because

he

had

not

criminal

responsibility

activities.
adjustment,

In

the

disclosure

been
light

Berumen

entirely
of

the

Cortes’s

advisory Guidelines sentence was calculated as 120 months in
prison, and the court imposed that sentence. 3

3

Berumen Cortes’s codefendant, Gonzalez Vicencio, was
sentenced to 134 months in prison.
In the defendants’ joint
opening brief, Gonzalez Vicencio contended that the district
court erred in applying a two-level Guidelines adjustment for
obstruction of justice.
During the pendency of this appeal,
however,
the
court
reduced
Gonzalez
Vicencio’s
sentence,
pursuant to 18 U.S.C. § 3582(c)(2), to the statutory minimum of
120 months.
Gonzalez Vicencio now appropriately concedes that
any error in the court’s calculation of his advisory Guidelines
range was harmless, because “there is no legal basis in any
argument raised on direct appeal for this Court to approve a
sentence under the mandatory minimum.”
See Reply Br. of
Appellants 12; see also United States v. McManus, 734 F.3d 315,
318 (4th Cir. 2013) (“Sentencing error is harmless if the
resulting sentence is not longer than that to which the
defendant would otherwise be subject.” (internal quotation marks
omitted)).

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Gonzalez
appeals,

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Vicencio

which

we

and

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Berumen

Cortes

consolidated.

We

timely

possess

noted

these

jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 4

II.
A.
Gonzalez Vicencio and Berumen Cortes now contend — for the
first time on appeal — that 21 U.S.C. § 841(b)(6) requires the
government to prove that a defendant knows he is on federal land
when he uses a hazardous substance in violation of 21 U.S.C.
§ 841(a).

Section 841(b)(6) provides:

Any person who violates [21 U.S.C. § 841(a)], or
attempts to do so, and knowingly or intentionally uses
a poison, chemical, or other hazardous substance on
Federal land, and, by such use
(A)

creates a serious hazard to
wildlife, or domestic animals,

(B)

degrades or harms the
natural resources, or

(C)

pollutes an aquifer, spring,
river, or body of water,

humans,

environment

or

stream,

shall be [punished as provided by law].

4

Gonzalez Vicencio and Berumen Cortes have not appealed
their convictions on Counts One and Two — the conspiracy and
marijuana manufacturing offenses — nor does Berumen Cortes
contest his conviction on Count Four for illegally reentering
the United States.

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See

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21

Filed: 04/26/2016

U.S.C.

Gonzalez

§ 841(b)(6)

Vicencio

requirements

and

extend

(emphasis

Berumen

beyond

Pg: 16 of 21

added).

Cortes,

knowing

According

§ 841(b)(6)’s

or

mens

intentional

use

to
rea

of

a

hazardous substance to knowledge that such substance is being
used on federal land.
Gonzalez Vicencio and Berumen Cortes frame their contention
as one of evidence sufficiency, arguing that the prosecutors
failed to present any evidence from which the jury could find
that either of them knew he was on federal land when he used
hazardous

substances

to

manufacture

marijuana.

Because

that

argument was never presented to or addressed by the district
court, we cannot grant relief unless the plain error standard is
satisfied.

See

United

States

v.

Olano,

507

U.S.

725,

732

(1993). 5
To satisfy the Olano plain error standard, a defendant must
first show:

“(1) that an error was made; (2) that the error was

plain; and (3) that the error affected his substantial rights.”
See United States v. Carthorne, 726 F.3d 503, 510 (4th Cir.
2013).

Even

exercise

our

if

those

discretion

requirements
to

correct

are
a

satisfied,

plain

error

we

will

only

when

necessary to prevent “a miscarriage of justice” or to ensure
5

Contrary to the defendants’ contention, the government
maintains that the issue they raise regarding § 841(b)(6) is one
of instructional error.
However framed, the issue was never
presented to or addressed by the district court.
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“the

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fairness,

integrity

proceedings.”
marks

or

Pg: 17 of 21

public

reputation

of

judicial

See Olano, 507 U.S. at 736 (internal quotation

omitted).

We

have

recognized

that

the

plain

error

standard “is strictly circumscribed and meeting all four prongs
is difficult, as it should be.”
F.3d

197,

213

(4th

Cir.

See United States v. Byers, 649

2011)

(internal

quotation

marks

omitted).
The stringent requirements of plain error review flow from
the fundamental

principle

that

a

right

“may

be

forfeited

in

criminal as well as civil cases by the failure to make timely
assertion of the right” in the trial court.
at 731 (internal quotation marks omitted).

See Olano, 507 U.S.
Our strict adherence

to the Olano standard “serves to induce the timely raising of
claims

and

opportunity
United

objections,

which

to

and

States,

consider
556

U.S.

gives
resolve

129,

134

the

district

them.”
(2009).

See

court
Puckett

That

the
v.

inducement

engenders judicial efficiency, because the trial court is better
suited to address an issue in the first instance.

In contrast,

a court of appeals sits as “a court of review, not of first
view.”

Cf. Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326,

1335 (2013) (internal quotation marks omitted).
error

review

afterthoughts.

discourages
That

is,

both

mousetrapping

arguments

and

As such, plain
and

objections

convenient
that

are

strategically withheld until appeal, or identified only after
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the trial court has ruled, will not prevail unless the rigorous
plain error standard is satisfied.
Importantly,

an

unpreserved

error

will

constitute

plain

error “only if it contravenes the law of the Supreme Court or
this circuit.”

See United States v. King, 628 F.3d 693, 700

(4th Cir. 2011) (internal quotation marks omitted).
regard,

we

have

directly

on

a

district

court

recognized
legal

does

that

issue
not

and

commit

plain

F.3d

176,

omitted).
plain

181

(4th

we

Cir.

have

yet

to

circuits

other

reasoning of another circuit.”
739

“when

In that

are

split,

error

by

speak

following

a

the

See United States v. Shepperson,
2014)

(internal

quotation

marks

As a corollary to that principle, the requirements of

error

review

are

more

difficult

to

satisfy

when

the

unpreserved issue has not been addressed by a court of appeals.
In

the

context

of

these

proceedings,

we

are

content

to

assume that an error occurred and that the first prong of Olano
has been satisfied.

See, e.g., United States v. Godwin, 272

F.3d 659, 679 (4th Cir. 2001) (“Without belaboring the point, we
simply

assume

analysis.”).

trial

error

and

proceed

with

the

Olano

Turning to Olano’s second prong, however, it is

apparent that Gonzalez Vicencio and Berumen Cortes have failed
to demonstrate that the assumed error is plain.

Put succinctly,

the defendants have not referred us to any authorities — and
there are none — that delineate the mens rea requirements of
18

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§ 841(b)(6).

Filed: 04/26/2016

Pg: 19 of 21

We therefore conclude that Gonzalez Vicencio and

Berumen Cortes fail to satisfy the requirements of plain error
review.
B.
Finally,
denial

of

Berumen

his

Cortes

request

for

challenges
relief

provision, 18 U.S.C. § 3553(f).

the

under

district
the

court’s

safety

valve

Had the court granted safety

valve relief to Berumen Cortes, he would have been eligible for
a

sentence

below

the

120-month

statutory

minimum.

The

government counters that the court properly found that Berumen
Cortes had not made a complete and truthful disclosure to the
authorities.

We review for clear error a sentencing court’s

decision to deny a defendant safety valve relief.

See United

States v. Henry, 673 F.3d 285, 292 (4th Cir. 2012).
The safety valve provision authorizes a sentencing court to
afford a first-time offender relief from a mandatory minimum
sentence, if the defendant satisfies five requirements.
defendant must shoulder the burden by showing that:

The

(1) he has

no more than one criminal history point under the Guidelines;
(2) his offense did not involve violence or the possession of a
firearm; (3) the offense did not result in serious bodily injury
or death; (4) he did not play a leadership role in the offense;
and (5) “no later than the time of sentencing, [he] truthfully
provided the government with all evidence and information [he]
19

Appeal: 14-4724

had

Doc: 63

Filed: 04/26/2016

concerning

the

offense

Pg: 20 of 21

or

offenses

comprising

course of conduct or a common scheme or plan.”

the

same

See Henry, 673

F.3d at 292-93.
As our good Chief Judge recently explained in United States
v. Aidoo, “[t]he defendant’s burden under the safety valve is a
true

burden

defendant.”
3553(f)

is

of

proof

that

rests,

at

all

times,

See 670 F.3d 600, 607 (4th Cir. 2012).
thus

a

“tell-all

provision,”

and

on

the

Section

requires

the

defendant to “persuade the district court that he has made full,
truthful
valve.”

disclosure

of

information

See id. at 607, 609.

required

by

the

safety

Importantly, if the prosecutors

oppose a request for safety valve relief, the defendant must
present “some kind of evidence” that shows “he had provided the
government with complete and truthful disclosure.”
609.

See id. at

Here, the district court specifically found that Berumen

Cortes had not revealed to the government everything he knew
regarding his criminal activities.

It thus denied safety valve

relief to Berumen Cortes under the fifth element of § 3553(f).
According to the court, Berumen Cortes had “failed miserably”
when given the opportunity “to be totally forthcoming and to
volunteer information relevant to the case.”

See J.A. 582-83.

The record provides ample support for the district court’s
finding on the safety valve issue.

For example, Berumen Cortes

maintained throughout the district court proceedings that he had
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Pg: 21 of 21

been present at the campsite for only one week, but the evidence
was strong that Berumen Cortes had been there growing marijuana
much longer.

Specifically, Berumen Cortes’s notepad showed that

he had planted seeds as early as May 13, 2013, nearly two months
before his arrest.
to

safety

contention

valve
that

In the face of the prosecutor’s opposition

relief,
he

had

Berumen
not

been

Cortes

failed

entirely

to

rebut

forthcoming

to

the
the

government, let alone carry his burden to establish otherwise.
We are therefore satisfied that the court did not err in denying
Berumen Cortes’s request for relief under 18 U.S.C. § 3553(f).

III.
Pursuant

to

the

foregoing,

we

reject

the

defendants’

contentions of error and affirm the judgments.
AFFIRMED

21