Appeal from the United States District Court for the District of Columbia (No. 1:08-cr-00083)
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge:
Before: HENDERSON, Circuit Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Appellant Lenin Erazo (Erazo) pleaded guilty to one count of unlawful distribution of 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(ii). The district court sentenced him to sixty-four months' incarceration followed by forty-eight months' supervised release, along with a special assessment of $100 and an order to comply with deportation directives. On appeal, Erazo argues that the district court erred in finding him ineligible for sentencing under the "safety valve" provision set forth in section 5C1.2 of the United States Sentencing Guidelines (Guidelines or U.S.S.G.). We affirm the district court as explained below.
I. On March 6, 2008, Erazo arranged by telephone to sell two kilograms of powder cocaine to a confidential informant (CI) working for the District of Columbia Metropolitan Police Department.*fn1 Shortly after 7 p.m. Erazo and two co-defendants, Alcides Guerra-Bautista and Juan Portillo, arrived at a parking lot in Northeast Washington, D.C. to meet with the putative buyers-the CI and an undercover police detective. Erazo drove himself in a Toyota Corolla. His confederates, Bautista and Portillo, arrived separately in a black Ford pickup truck. The CI and detective had already arrived in an undercover police van equipped with audio and video equipment. Erazo then stepped out of his vehicle, approached the undercover police van and sat down in the front passenger seat next to the detective. Inside the van, Erazo discussed the cocaine with the detective, telling him in Spanish, "Yes, the drugs are good, the drugs are good." After
a short conversation, Erazo called out in Spanish, "Bring the [stuff]." Bautista and Portillo were still sitting in the pickup truck and, on hearing Erazo's command, Bautista withdrew a bag of cocaine from the rear of the truck and took it over to the van. Portillo accompanied him. Erazo took the bag and Bautista and Portillo sat down in the van's back seat. Erazo told the detective that he was unable to transport the cocaine himself because he did not have a driver's license.
Erazo and the undercover detective consummated the transaction once all three co-defendants were inside the van, with Erazo handing over about 1.5 kilograms of cocaine to the detective. The CI gave cash to Erazo, telling him that it was $8000. The detective then said he had to retrieve the rest of the money and exited the van. At that moment, a police team converged on the vehicle and placed all three co-defendants under arrest.
When the police searched Portillo incident to his arrest, they discovered a Raven Arms .25 caliber pistol around the cuff of his pants. Portillo later testified that he had been carrying the weapon tucked into his waistband and "when the police threw themselves on me" it fell down his pants-leg. The pistol was loaded with five rounds of ammunition. Police also recovered a napkin containing thirty-one rounds of .25 caliber ammunition and a black scale from the back seat of the van where Portillo and Bautista had been sitting.
Erazo pleaded guilty to one count of distribution of 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(ii), and agreed to a two-level sentence enhancement for possession of a dangerous weapon pursuant to section 2D1.1(b)(1) of the Guidelines.*fn2 Erazo argued, however, that he was eligible for the "safety valve" provision of the Guidelines, which requires that a defendant be sentenced "without regard to any statutory minimum sentence" if he meets certain enumerated criteria. U.S.S.G. § 5C1.2(a); 18 U.S.C. § 3553(f). In particular, Erazo argued that he could establish under subpart (a)(2) of the safety valve provision that he did "not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense." U.S.S.G. § 5C1.2(a)(2). The district court held an evidentiary hearing to determine whether Erazo was eligible for the safety valve. The Government called Portillo to testify about how he came into possession of the pistol that the police found on him at the March 6, 2008 drug deal.
Portillo testified that, before his arrest, he had been staying at a friend's two-bedroom apartment in nearby Maryland, sleeping on the floor of one of the bedrooms. It was there that
Portillo met Erazo, who was living in the other bedroom. On March 6, 2008 Portillo was in the apartment with Bautista, a friend from Guatemala, when Bautista received a telephone call from Erazo. Erazo asked to speak to Portillo. Once Portillo came on the line, Erazo asked him for a "favor": to get a gun out of Erazo's bedroom and bring it to him. According to Erazo, the gun was under Erazo's bed. Portillo found the gun under Erazo's bed and shortly thereafter, with the pistol in his waistband, accompanied Bautista in the pickup truck to the meeting with Erazo and his buyers.
According to Portillo, however, he was duped into becoming an unwitting participant in the drug deal. As Portillo recounted, Erazo lied about the reason he asked Portillo to retrieve his gun, saying that he had arranged to sell the pistol together with his own car and needed a ride home. Portillo also disputed the sequence of events in the Government's factual proffer. Portillo testified that he did not hear Erazo yell, "Bring the [stuff]." Instead, Portillo was in the pickup truck having a telephone ...