United States v. Pedro Ortiz, 136 F.3d 882 (2d Cir. 1997). · Go Syfert
United States v. Pedro Ortiz, 136 F.3d 882 (2d Cir. 1997). Cases Citing This Book View Copy Cite
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At page 883 Applying safety valve criteria for sentencing relief37 citing casesalso holding that the government has no general duty to seek out information from the defendant1 citing court put it this way · 36 listed here
  • United States v. Harry, 130 F.4th 342 (2d Cir. 2025).published 2 cites
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997).
  • United States v. Cherry, No. 21-1459 (2d Cir. Jan. 19, 2024).unpublished
    We review a sentencing court’s factual findings for clear error, United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997), while reviewing questions of law with respect to the Fifth Amendment privilege de novo, United States v. Greenfield,…
  • United States v. Pedro Gonzalez Cueto, No. 19-1379 (2d Cir. May 8, 2020).unpublished 2 cites
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997).
  • United States v. Greenberg, No. 18-1768 (2d Cir. May 16, 2019).unpublished 2 cites
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997).
  • United States v. Colon-Flores, Martinez-Figueroa, No. 17-2387 (L) (2d Cir. Feb. 20, 2019).unpublished
    United States v. Kleiner, 765 F.3d 155, 158 (2d Cir. 2014); United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997).
  • United States v. Ramos-Nunez, 633 F. App'x 20 (2d Cir. 2016).unpublished
    We review the district court’s factual finding that he did not do so only for clear error, see United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997), which is not present here.
  • United States v. Beltre, 562 F. App'x 15 (2d Cir. 2014).unpublished
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Obiorah, 536 F. App'x 53 (2d Cir. 2013).unpublished
    We review the district court’s factual findings regarding application of the safety valve for clear error, see United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997), which is not present here.
  • United States v. Arnold, 536 F. App'x 9 (2d Cir. 2013).unpublished
    We review the district court’s factual finding that he did not do so only for clear error, see United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997), which is not present here.
  • United States v. Valerio, 472 F. App'x 61 (2d Cir. 2012).unpublished
    “We review a sentencing court’s factual findings for clear error.” United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
Show 26 more citing cases
  • United States v. McKenzie, 421 F. App'x 28 (2d Cir. 2011).unpublished
    “Safety Valve” “We review a sentencing court’s factual findings for clear error, but review the court’s interpretation of the safety valve provisions de novo.” United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997); see United States v. N…
  • United States v. Hernandez, 416 F. App'x 91 (2d Cir. 2011).unpublished
    The law is clear that every defendant seeking the benefit of safety valve relief must meet five specific requirements, see 18 U.S.C. § 3553 (f)(1) — (5), including that defendant provide a truthful proffer to the government about “all he k…
  • United States v. Gomez, 384 F. App'x 37 (2d Cir. 2010).unpublished
    It necessarily follows that we identify no error in the district court’s finding that Reyes failed to satisfy the fourth requirement for safety valve consideration under 18 U.S.C. § 3553 (f) and U.S.S.G. § 501.2(a), that is, that he “was n…
  • United States v. Touzel, 281 F. App'x 37 (2d Cir. 2008).unpublished
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997) (per curiam).
  • United States v. Viertel, 242 F. App'x 779 (2d Cir. 2007).unpublished
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Castellar, 242 F. App'x 773 (2d Cir. 2007).unpublished
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Villa, 242 F. App'x 774 (2d Cir. 2007).unpublished
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Morant-Cordero, 164 F. App'x 114 (2d Cir. 2006).unpublished
    See United States v. Tang, 214 F.3d 365, 371 (2d Cir.2000); United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Gaton, 98 F. App'x 61 (2d Cir. 2004).unpublished 2 cites
    United States v. Tang, 214 F.3d 365, 371 (2d Cir.2000); United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Soriano, 295 F. Supp. 2d 317 (S.D.N.Y. 2003).published
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997) (per curiam); Gambino, 106 F.3d at 1110 .
  • United States v. Rafael Duverge Perez, 295 F.3d 249 (2d Cir. 2002).published
    We review the sentencing court’s factual findings for clear error, United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997), and the decision refusing to strike testimony because a witness refused to answer a question on Fifth Amendment gro…
  • United States v. Wendy Reynoso, 239 F.3d 143 (2d Cir. 2000).published 4 cites
    Reynoso, who bears the burden of proving that she qualifies for safety valve relief, see, e.g., United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997), argues that §3553(f)(5) requires only that a defendant "subjectively believe[]" infor…
  • United States v. Fausto Dejesus, 219 F.3d 117 (2d Cir. 2000).published
    Here, defendant’s assertion that he was denied effective assistance of counsel in entering into the plea agreement is predicated on the belief that he should have pleaded guilty without an agreement and then litigated the safety valve issu…
  • United States v. Damon Smith, 174 F.3d 52 (2d Cir. 1999).published
    At issue here is Eric’s purported compliance with the fifth criterion, which essentially requires the defendant “ ‘to disclose all he knows concerning both his involvement and that of any co-conspirators.’ ” United States v. Ortiz, 136 F.3…
  • United States v. Daniel Vasquez, 161 F.3d 909 (5th Cir. 1998).published 2 cites
    See Flanagan, 80 F.3d at 146 ; United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997), cert. denied, 118 S. Ct. 1104 (1998); United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996), cert. denied, 117 S. Ct. 742 (1997).
  • United States v. Raymond Cruz, 156 F.3d 366 (2d Cir. 1998).published
    United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Nesheiwat, 523 F. App'x 814 (2d Cir. 2013).unpublished
    See United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997) (per curiam).
  • United States v. Clark, 442 F. App'x 606 (2d Cir. 2011).unpublished
    See United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Oye, 397 F. App'x 697 (2d Cir. 2010).unpublished
    See *699 United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Baratto, 187 F. App'x 127 (2d Cir. 2006).unpublished
    See United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Nelson Jimenez, 451 F.3d 97 (2d Cir. 2006).published
    The Rationale Undergirding Gambi-no In Gambino , we held that, in order to satisfy the fifth requirement of the safety-valve provision, the defendant must prove to the sentencing court, by a preponderance of the evidence, that he has provi…
  • United States v. Gonzalez, 161 F. App'x 183 (2d Cir. 2006).unpublished
    See United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997) (quoting 18 U.S.C. § 3553 (f)(5)).
  • United States v. Angel Tang, 214 F.3d 365 (2d Cir. 2000).published
    See United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997).
  • United States v. Robert Schreiber, 191 F.3d 103 (2d Cir. 1999).published 2 cites
    See United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997) (per curiam), cert. denied, — U.S. —, 118 S.Ct. 1104 , 140 L.Ed.2d 158 (1998).
  • United States v. Amadou Conde, 178 F.3d 616 (2d Cir. 1999).published
    See, e.g., United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997) (per curiam); United States v. Gambino, 106 F.3d 1105, 1110 (2d Cir. 1997).
  • United States v. Gonzalez-Montoya, 161 F.3d 643 (10th Cir. 1998).published
    See United States v. Verners, 103 F.3d 108, 110 (10th Cir.1996); see also United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1104 , 140 L.Ed.2d 158 (1998).
At page 884 Government duty to solicit defendant information for safety valve relief6 citing casesholding a defendant’s expression of willingness to provide the required information was not enough to satisfy the requirement to truthfully provide information to government1 citing court put it this way
  • United States v. Arunas Milkintas, 470 F.3d 1339 (11th Cir. 2006).published
    (holding a defendant’s expression of willingness to provide the required information was not enough to satisfy the requirement to truthfully provide information to government)
  • United States v. Stephenson, 452 F.3d 1173 (10th Cir. 2006).published
    Finally, the Second Circuit in United States v. Ortiz, 136 F.3d 882, 884 (2d Cir.1997) relied on the analysis in Ivester and Flanagan to hold a defendant has the burden to come forward with information that qualifies for the safety valve.
  • United States v. Sanchez Rodriguez, No. 23-50395 (5th Cir. Nov. 16, 2023).unpublished
    See United States v. Ortiz, 136 F.3d 882, 884 (2d Cir. 1997) (citing Flanagan, 80 F.3d at 146 ) (holding that merely “express[ing] a willingness to provide the required information” does not meet a defendant’s burden); United States v. Mil…
  • United States v. Fabian Gonzalez-Loya, 639 F. App'x 1023 (5th Cir. 2016).unpublished
    See United States v. Ortiz, 136 F.3d 882, 884 (2d Cir.1997) (per cu-riam) (affirming the district court’s denial of safety-valve relief when the defendant had “done no more than express his willingness to the district court to provide the…
  • United States v. Kenyatta Brack, 188 F.3d 748 (7th Cir. 1999).published 2 cites
    See United States v. Ortiz, 136 F.3d 882, 884 (2d Cir.1997) (per curiam).
  • United States v. Gama-Bastidas, 142 F.3d 1233 (10th Cir. 1998).published
    See United States v. Ortiz, 136 F.3d 882, 884 (2d Cir.1997), cert. denied,_U.S__, — U.S.-, 118 S.Ct. 1104 , 140 L.Ed.2d 158 (1998); United States v. Ramirez, 94 F.3d 1095, 1100 (7th Cir.1996); United States v. Real-Hernandez, 90 F.3d 356,…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Pedro ORTIZ, Defendant-Appellant
700, Docket 96-1827.
Court of Appeals for the Second Circuit.
Oct 31, 1997.
Published opinion
136 F.3d 882
1997 U.S. App. LEXIS 32778
1997 WL 837186
B. Alan Seidler, Nyaek, New York, Defendant-Appellant., Dolan Garrett, Assistant United States Attorney for the Eastern District of New York, Brooklyn, New York (Zachary W. Carter, United States Attorney, Susan Corkery, Assistant United States Attorney, of counsel), for Appellee.
Winter, Meskill, Pollack.
Cited by 44 opinions  |  Published
PER CURIAM:

Pedro Ortiz appeals from a sentence of, inter alia, 120 months imprisonment, imposed by Judge Glasser after Ortiz pleaded guilty to conspiracy to distribute and possession with intent to distribute heroin, cocaine, and cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Ortiz argues that the district court erred in refusing to apply the so-called “safety valve” provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, which would have allowed him to be sentenced under the Sentencing Guidelines and below the[*883] minimum sentence fixed by statute. We disagree and affirm.

. On May 13, 1996, Ortiz pleaded guilty to Count One of a nine-count indictment, admitting that from May 1994 to June 1995 he, together with named co-conspirators, knowingly and intentionally conspired to distribute and possess with intent to distribute heroin, cocaine, and cocaine base. The parties agree that, for purposes of the Sentencing Guidelines, Ortiz’s offense level was 20, with a sentencing range of 33 to 41 months. Under 21 U.S.C. § 841(b)(1)(A), however, Ortiz was subject to a minimum prison term of 10 years.

By letter dated September 30, 1996, Ortiz notified the district court that, inter alia, he would move at sentencing for a sentence below the 10-year statutory minimum, pursuant to the “safety valve” provisions set forth in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. These provisions entitle a defendant to “a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence,” if the defendant meets five criteria: (i) the defendant has no more than one criminal-history point; (ii) the defendant “did not use violence or credible threats of violence or possess a firearm or other dangerous weapon ... in connection with the offense”; (iii) no one was killed or seriously hurt as a result of the offense; (iv) the defendant was not an organizer, leader, manager, or supervisor in the offense and was not engaged in a continuing criminal enterprise; and (v) “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense....” U.S.S.G. § 5C1.2(1)-(5); 18 U.S.C. § 3553(f)(1)-(5). Ortiz’s September 30 letter stated that “he has clearly met or will meet the five criteria.”

The government did not respond to. the “safety valve” argument until Ortiz’s sentencing hearing on December 12, 1996. At that hearing, the government asserted that Ortiz had failed to satisfy both the second and fifth criteria under Section 5C1.2. Judge Glasser . agreed. As to Section 5C1.2(2), Judge Glasser determined that because, in the same transaction, Ortiz had sold both heroin and a semiautomatic weapon to an undercover agent, Ortiz “possessed” a firearm “in connection with” his offense of conviction. As to Section 5C1.2(5), Judge Glasser determined that, despite Ortiz’s expressed “willingness” to provide information to the government, he had never actually provided any information. In an order entered on December 13, 1996, Judge Glasser reiterated his findings and concluded that Ortiz was not entitled to relief under the safety valve provisions in Section 5C1.2 and 18 U.S.C. § 3553(f). We review a sentencing court’s factual findings for clear error, but review the court’s interpretation of the safety valve provisions de novo. United States v. Ramirez, 94 F.3d 1095, 1099 (7th Cir.1996); United States v. Flanagan, 80 F.3d 143, 145 (5th Cir.1996).

Appellant had the burden of proving that he met all five criteria of the safety valve provisions. United States v. Gambino, 106 F.3d 1105, 1110 (2d Cir.1997); United States v. Sabir, 117 F.3d 750, 754 (3d Cir.1997); United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir.1997); United States v. Myers, 106 F.3d 936, 941 (10th Cir.), cert. denied, — U.S. -, 117 S.Ct. 2446, 138 L.Ed.2d 205 (1997). As to the fifth requirement, appellant had to show that, “not later than the time of the sentencing hearing, [he] ha[d] truthfully provided to the Government all information and evidence [he] ha[d] 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); U.S.S.G. § 5C1.2(5); Gambino, 106 F.3d at 1110. This fifth requirement, in short, required appellant “to disclose all he knows concerning both his involvement and that of any co-conspirators.” United States v. Ivester, 75 F.3d 182, 184 (4th Cir.), cert. denied, 518 U.S. 1011, 116 S.Ct. 2537, 135 L.Ed.2d 1060 (1996); accord, Myers 106 F.3d at 941.

Ortiz does not contend that, as of the time of sentencing, he had actually provided the government with all the information he had concerning the conspiracy. It would appear under the plain language of the statute, therefore, that Ortiz failed to satisfy the fifth requirement of the safety valve provisions. Ortiz contends, however, that his September[*884] 30 letter to the district court expressed a willingness to provide the required information, and that the government never responded to his offer.

Both the Fifth and the Fourth Circuits have considered the issue of whether the government, having been provided notice that a defendant was willing to provide information about a crime, has a duty to seek out that information. Both circuits have concluded that the government has no such duty for purposes of the safety valve provisions. See Flanagan, 80 F.3d at 146 (concluding that “the burden is on the defendant to provide the Government with all information and evidence regarding the offense. There is no indication that the Government must solicit the information.”); Ivester, 75 F.3d at 185-86 (“defendants cannot claim the benefit of § 3553(f) by the mere fact that the Government never sought them out for debriefing”); cf. United States v. Beltran-Ortiz, 91 F.3d 665, 669 n. 4 (4th Cir.1996) (noting that although government has no general duty to debrief defendant, it cannot argue that defendant failed to meet his disclosure obligation where it promises in plea agreement to debrief defendant and then fails- to do so). In Flanagan, the Fifth Circuit pointed out that because the safety valve provisions require disclosure even where “the Government is already aware of the information,” 18 U.S.C. § 3553(f)(5), U.S.S.G. § 5C1.2(5), it would be “anomalous” to require the government to solicit information where the governmént “is aware of all the relevant or useful information.” Flanagan, 80 F.3d at 146. In Ivester, the Fourth Circuit noted that the safety valve provisions require a defendant to “provide” information, and that this term would be meaningless if a defendant could qualify for safety valve protection merely by expressing a willingness to provide information. Ivester, 75 F.3d at 185.

We agree with the Fourth and Fifth Circuits’ interpretation of 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(5), at least with regard to the facts before us. Ortiz has not provided the requisite information, has not made a proffer with regard to that information, and has not even sought a meeting with the government. This is not a case in which there is any possibility of a misunderstanding or of a rebuff by the government when Ortiz sought to provide the requisite information. The statute requires a defendant to provide that information by the.time of sentencing. Ortiz has done no more than express his willingness to the district court to provide the information and to request sentencing under the safety valve provisions based solely on that expression of willingness. More was required on his part to satisfy the fifth requirement of those provisions. Because a defendant must satisfy all five requirements to get the benefit of those provisions and Ortiz failed to satisfy the fifth requirement, we need not reach the question of whether Ortiz met the second requirement.

We therefore affirm.