US v. Dany Toro-Munera

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:15-cr-00269-RBH-1 Copies to all parties and the district court/agency. [999964306].. [16-4205]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4205

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANY ALEXIS TORO-MUNERA,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:15-cr-00269-RBH-1)

Submitted:

October 25, 2016

Decided:

November 8, 2016

Before KING and KEENAN, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

Kimberly H. Albro, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Beth Drake, Acting United States
Attorney, Christopher D. Taylor, Assistant United States Attorney,
Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dany Alexis Toro-Munera appeals the district court’s ruling
that he does not qualify for the safety valve provision in 18
U.S.C. § 3553(f) (2012) because he failed to truthfully provide
all information regarding his offense to the Government.

We

affirm.
Application of the safety valve under 18 U.S.C. § 3553(f) is
a question of fact that we review for clear error.

United

States v. Henry, 673 F.3d 285, 292 (4th Cir. 2012). “This standard
of review permits reversal only if this Court is left with the
definite and firm conviction that a mistake has been committed.”
Id. (internal quotation marks omitted).

In conducting such a

review, we afford “the district court’s credibility determinations
great deference.” Id.
To be eligible for relief under the safety valve provision,
a defendant must show the following five elements:
(1) the defendant does not have more than one criminal
history point; (2) the defendant did not use violence or
possess a firearm in connection with the offense; (3)
the offense did not result in death or serious bodily
injury; (4) the defendant was not an organizer, leader,
manager, or supervisor of others in the offense; and (5)
no later than the time of sentencing, the defendant
truthfully provided the government with all evidence and
information the defendant had concerning the offense or
offenses comprising the same course of conduct or a
common scheme or plan.

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Henry, 673 F.3d 285, 292-93; 18 U.S.C. § 3553(f).

The burden of

proof lies with the defendant to show that he has met each element.
United States v. Aidoo, 670 F.3d 600, 607 (4th Cir. 2012).
The parties agree that the first four prongs of the safety
valve requirement have been met, but dispute whether Toro-Munera
has satisfied the fifth requirement.

We have reviewed the record

and conclude that the district court’s justification for finding
Toro-Munera’s testimony not credible does not leave us “with the
definite and firm conviction that a mistake has been committed.”
See Henry, 673 F.3d at 292.

Thus, the district court did not

clearly err in finding Toro-Munera ineligible for the safety valve
provision.
Accordingly, we affirm the judgment of the district court.
We

dispense

with

oral

argument

because

the

facts

and

legal

contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED

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