UNITED STATES of America, Appellee, v. Wendy REYNOSO, a/k/a Cathy Altagracia, a/k/a La Rubia, Defendant-Appellant, 239 F.3d 143

JOSÉ A. CABRANES, Circuit Judge:

Section 3553(

f) of Title 18 provides that, for certain specified offenses, a court “shall” sentence a defendant “without regard to any statutory minimum sentence” if, inter alia, “the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense.” 18 U.S.C. § 3553(f)(5).

The question presented in this appeal, apparently as a matter of first impression, is whether a defendant who provided objectively false information to the Government nevertheless satisfies the requirement set forth in § 3553(f)(5) if he or she subjectively believed the information provided to the Government was true.

The question arises on appeal from a judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge ), convicting defendant Wendy Reynoso, following a guilty plea, of distributing and possessing with intent to distribute more than five grams of crack cocaine and sentencing her principally to the statutory minimum of 60 months’ imprisonment. We agree with the District Court that because Reynoso provided the Government with objectively false information, she does not qualify for the so-called “safety valve” of § 3553(f).

Accordingly, we affirm the judgment of the District Court. I. The facts relevant to this appeal are essentially undisputed. On July 8, 1998, officers and agents of the High Intensity Drug Task Force, a joint task force of the New York City Police Department (“NYPD”) and the United States Drug Enforcement Administration, were conducting an investigation in the area of Broadway and 151st Street in Manhattan. As part of that investigation, a confidential informant (“Cl”) approached an unidentified male and arranged for Ricky Nesmith, an undercover NYPD detective, to purchase 62 grams of crack cocaine.

The Cl and Detective Nesmith then took a livery taxi to 605 West 151st Street, where the unidentified male had indicated to the Cl that the crack cocaine would be delivered. Soon after the Cl and Detective Nes-mith arrived at 605 West 151st Street, Reynoso approached the car. Following a conversation with the Cl, Reynoso then left.

A short time later, however, she returned carrying a brown bag, and handed the bag, which turned out to contain approximately 44 grams of crack cocaine, to the CL Reynoso told the Cl that there were only 45 grams of crack cocaine in the bag, and instructed the Cl and Detective Nesmith that because of police activity in the area they should return later for the remaining 17 grams.

Reynoso was arrested almost five months later, on December 7, 1998, and charged in a two-count indictment with conspiracy to distribute and possess with intent to distribute more than fifty grams of crack cocaine, in violation of 21 U.S.C. § 846; and distribution and possession with intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(B).

On August 13, 1999, Reynoso met with prosecutors for a so-called “safety valve proffer.” At the meeting, Reynoso informed the Government that she had been addicted to drugs at the time she distributed the crack cocaine to Detective Nesmith. Although she acknowledged distributing the crack cocaine, Reynoso nevertheless denied having served — on July 8, 1998 or on any other date — as a courier or deliverer of drugs for a Washington Heights drug dealer.

Instead, Reynoso steadfastly maintained that she had stolen the crack cocaine at issue from a nearby billiards parlor and that she then had approached the first car she saw to sell the drugs. As Reynoso’s counsel concedes, “The objective facts known to the parties did not support Ms. Reynoso’s story.... The only logical inference [from the known facts] is that Ms. Reynoso was working for a drug dealer as a courier, not that she had stolen the crack and sold it herself.” Brief of Appellant at 6.

Because Reynoso continued to deny having served as a courier or distributor, despite the known facts to the contrary, defense counsel retained Dr. Mark Mills, a forensic psychiatrist, to examine Reynoso. After Dr. Mills briefly examined Reynoso in jail and reviewed the case materials, he reported his findings to defense counsel in September 1999. Dr. Mills concluded that Reynoso had no “psychiatric illness,” nor any “major psychiatric issue[s].” Nevertheless, after reviewing Reynoso’s accounts of neglect and drug use during her childhood and adolescence, Dr.

Mills opined: [Reynoso’s] history of intoxication, impaired memory and neglect accounts for her behavior at her proffer session. While she was ready to accept responsibility for her criminal behavior, she unconsciously elaborated, the technical term is “confabulated!,]” a story that would account for her behavior given the highly incomplete recollection that she had. Expressed differently, Ms. Reyno-so told something that was untrue, but did not appreciate that it was untrue because of her organic memory impairment, secondary to cocaine intoxication.

Such a pattern of confabulation is common in those with significant organic memory impairment. (emphasis added). On October 6, 1999, Reynoso pleaded guilty to Count Two of the indictment — for distribution and possession with intent to distribute more than five grams of crack cocaine. Thereafter, armed with Dr. Mills’s report, Reynoso’s counsel made a motion pursuant to the safety valve provision of § 3553(

f) for relief from the mandatory minimum sentence of 60 months’ imprisonment.

Defense counsel conceded that Reynoso had not been “[objectively” truthful at her safety valve proffer, but argued that she nevertheless satisfied § 3553(f)(5) — which, as noted, requires that “the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense” — because “she did not appreciate the fact that her information was untrue [as a result] ‘of organic memory impairment, secondary to cocaine intoxication.’ ” In opposing the motion, the Government did not contest that Reynoso satisfied the other four requirements for relief under the safety valve provision or challenge the findings of Dr.

Mills. Instead, the Government argued that Dr. Mills’s findings were irrelevant as a matter of law and that Reynoso could not satisfy § 3558(f)(5) because the information she had provided was “objectively untruthful.” Following oral argument, the District Court denied Reynoso’s motion for relief from the mandatory minimum sentence in a ruling from the bench. The District Court agreed to assume arguendo that Dr.

Mills’s findings were valid and that Reyno-so “genuinely believes that she was telling the truth.” Nevertheless, the District Court concluded, primarily as a matter of plain language and of “policy,” that Reyno-so did not satisfy the requirement of § 3558(f)(5) because she had provided objectively false information to the Government. Accordingly, the District Court sentenced Reynoso to the statutory minimum of 60 months’ imprisonment, followed by four years’ supervised release, and imposed a mandatory special assessment of $100. This appeal followed. II.

The sole question on this appeal is whether Reynoso qualifies for relief under the safety valve statute.

The parties agree that this question turns on whether Reynoso satisfies the fifth requirement of the statute, which provides that 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 or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. 18 U.S.C. § 3553(f)(5); accord U.S.S.G. § 5C1.2(5) (incorporating the same requirement).

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[ ]” information provided to the Government is true. In response, the Government contends that the provision requires a defendant to show that the information he or she provided was objectively true. The proper construction of the statute is a question of law, subject to de novo review. See, e.g., United States v. Tang, 214 F.3d 365, 370 (2d Cir.2000).

We conclude that Reynoso and the Government are both partially correct — that is, that a defendant seeking to qualify for relief under the safety valve provision must prove both that the information he or she provided to the Government was objectively true and that he or she subjectively believed that such information was true. This conclusion is supported, first and foremost, by the plain language of § 3553(f)(5). See, e.g., United States v.

Piervinanzi, 23 F.3d 670, 677 (2d Cir.1994) (“[T]he starting point for interpreting a statute is the language of the statute itself.” (internal quotation marks omitted)); cf. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (“The plain meaning of legislation should be conclusive, except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” (internal quotation marks and brackets omitted)).

As noted, § 3553(f)(5) states that a defendant qualifies for relief only by “truthfully pro-vid[ing] to the Government all information and evidence [he or she] has concerning the offense.” 18 U.S.C. § 3553(f)(5) (emphasis added). One authority defines “truthful” as both “telling or disposed to tell the truth” and “accurate and sincere in describing reality.” Webster’s Third New International Dictionary of the English Language Unabridged 2457 (1976). Other dictionaries similarly define the word to encompass both a subjective belief in the truth of information conveyed and the conveyance of true information.

See, e.g., The American Heritage Dictionary of the English Language 1378 (1970) (“1. Consistently telling the truth, honest. 2. Corresponding to reality: true.”); The Random House College Dictionary 1612 (1973) (“1. telling the truth, esp. habitually .... 2. conforming to truth .... 3. corresponding with reality_”); Webster’s New Universal Unabridged Dictionary 1964 (2d ed.1983) (“1. telling the truth; presenting the facts; veracious; honest. 2. corresponding with fact or reality, as an artistic representation.” ).

We see no reason to believe that Congress did not intend for the word “truthfully” in § 3553(f)(5) to encompass both these meanings. Accordingly, we hold that in order to qualify for safety valve relief, a defendant must prove both that the information he or she provided to the Government was objectively true and that he or she subjectively believed that such information was true.

Reynoso and our dissenting colleague emphasize that the statutory language is “truthfully provided” rather than “truthful information,” and would have us infer from Congress’s use of an adverb that “the emphasis in the statute is on the defendant’s state of mind,” Brief of Appellant at 21; see post at 150, but we are unpersuaded. In previous cases concerning § 3553(f)(5), we have, except when quoting the statute itself, almost without fail used the adjective “truthful” when articulating the standard to be applied. See United States v.

Schreiber, 191 F.3d 103, 106 (2d Cir.1999) (holding that § 3553(f)(5) requires that a defendant provide “to the government complete and truthful information no later than the time of sentencing”); United States v. Conde, 178 F.3d 616, 620 (2d Cir.1999) (stating that § 3553(f)(5) requires “truthful and complete disclosure to the government”); United States v. Smith, 174 F.3d 52, 55 (2d Cir.1999) (stating that safety valve relief is contingent on disclosure of “complete and truthful information”); United States v.

Cruz, 156 F.3d 366, 371 (2d Cir.1998) (stating that § 3553(f)(5) requires “that a defendant provide truthful information regarding the ‘offense of conviction and all relevant conduct’ ”); United States v. Gambino, 106 F.3d 1105, 1110 (2d Cir.1997) (“[T]he plain language of the ‘safety valve’ places the burden on the defendant to provide truthful information to the government.”). But see id. at 1111 (“Catalano failed to meet his burden of proving that he had truthfully provided all the information available to him.”). This consistent usage, considered in conjunction with both the dictionary

definitions of the term “truthful” quoted above and the ordinary, common-sense meaning of the word, see, e.g., Perrin v.

United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”), leads ineluctably to the conclusion that Congress intended no legal significance to attach to its use of the words “truthfully provided” rather than “truthful information.” Our conclusion, that § 3553(f)(5) requires both that information provided to the Government be objectively truthful and that a defendant subjectively believe that such information is truthful, is further supported by the legislative history and purposes of the safety valve provision.

The legislative history of the Mandatory Minimum Sentencing Reform Act of 1994 (“MMSRA”), Pub.L. No. 103-322, tit. VIII, § 80001(a), 108 Stat. 1796, 1985-86, which contained the safety valve provision, indicates that one of the principal purposes of the statute was to reform the then “current operation of mandatory minimums [under which] mitigating factors that are recognized in the [sentencing] guidelines and generally are considered in drug cases do not apply to the least culpable offenders except in rare instances.” H.R.Rep. No. 103-460, at 3 (1994), reprinted at 1994 WL 107571.

As we have explained, Congress intended “to remedy an inequity in the old system, which allowed relief from statutory minimum sentences” to those defendants who rendered “substantial assistance” to the Government— usually higher-level offenders, “whose greater involvement in criminal activity resulted in their having more information”— but effectively denied such relief to the least culpable offenders, who often “had no new or useful information to trade.” Cruz, 156 F.3d at 375 (quoting United States v. Arrington, 73 F.3d 144, 147-48 (7th Cir.1996)).

The critical point to draw from this legislative history is that Congress, in enacting the MMSRA, was concerned about the low-level figure in a drug conspiracy who sought to provide the Government with substantial assistance but, by virtue of his or her minor involvement in the criminal activity, “had no new or useful information to trade.” Id. Thus, Congress intended to provide relief from statutory minimum sentences to those defendants who, but for their minor roles in criminal activity, could (and would) have provided the Government with substantial assistance.

To be sure, because a defendant may get safety valve relief even when the information provided is neither “new” nor “useful,” see 18 U.S.C. § 3553(f)(5) (“[T]he fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination ... that the defendant has complied with this requirement.”), the Government cannot legitimately claim an entitlement under § 3553(f)(5) to information of value. See, e.g., Schreiber, 191 F.3d at 108.

However, aided by the legislative history, we read the statute to mean that the Government is entitled under § 3553(f)(5) not to be provided with objectively false information, which may well be harmful to the Government. Indeed, we are confident that, in enacting the MMSRA, Congress did not intend to reward the defendant who, for whatever reason, tries “to trade” on objectively false information. Cruz, 156 F.3d at 375. Similarly, because Congress was concerned primarily with “the least culpable offenders,” H.R.Rep.

No. 103-460, at 3, we conclude that a defendant must subjectively believe he or she is providing truthful information in order to qualify for safety valve relief. Reynoso makes two arguments in reb-anee on the case law concerning § 3553(f)(5), but both are without merit. First, Reynoso contends that a defendant “need only make a good faith effort to cooperate” in order to qualify for safety valve relief. Brief of Appellant at 22 (citing United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996)).

It is true “that we have previously suggested that the statute requires a defendant to ‘cooperate’ with the government, and to do so in ‘good faith.’ ” Schreiber, 191 F.3d at 106 (citations omitted) (quoting Cruz, 156 F.3d at 375, and Gambino, 106 F.3d at 1110, respectively). However, we have never suggested that whether a defendant satisfies the statutory requirement of “truthfully providing] ... all information and evidence” turns solely on the defendant’s state of mind.

In fact, in Ortiz, we held that a defendant’s mere willingness to provide complete and truthful information to the Government is insufficient for relief; as we explained, the statute requires a defendant actually to provide such information. See 136 F.3d at 884. Similarly, in Schreiber, we held that under the plain language of § 3553(f)(5) a defendant may qualify for safety valve relief so long as he or she “volunteerfs] to the government complete and truthful information no later than the time of sentencing” — even if he or she had repeatedly lied to the Government before telling the truth. 191 F.3d at 106.

At the threshold, therefore, a defendant must provide the Government with complete and objectively truthful information in order the qualify for safety valve relief; the defendant’s subjective reasons for failing to comply with this requirement are simply immaterial. Cf. Tang, 214 F.3d at 370-71 (rejecting the defendant’s argument that “he should be excused for refusing to give information about a particular co-conspirator ... based on his fear for the safety of his fiancee and family members”). Second, Reynoso relies on our sister circuits’ decisions in United States v.

Sherpa, 110 F.3d 656 (9th Cir.1997), and United States v. Thompson, 76 F.3d 166 (7th Cir.1996), but this reliance is misplaced. Loose language aside, these cases are distinguishable on either the law or the facts (as even the dissent implicitly concedes at least with respect to Sherpa). Sherpa concerned only the question of whether a sentencing court “may reconsider facts necessary to the jury verdict in determining whether to apply the safety valve provision.” 110 F.3d at 662.

Nothing in the opinion suggests that the panel of the Ninth Circuit considered, let alone decided, whether § 3553(f)(5) may be satisfied even when a defendant has provided the Government with objectively false information. In Thompson, on the other hand, the defendant did, in fact, provide the Government with objectively truthful information.

See 76 F.3d at 170 (“[U]pon her arrest, Thompson provided a statement setting forth her actions in transferring packages and dealing with large amounts of cash ... thus acknowledging her objective conduct.”); id. at 171 (“Prior to sentencing, Thompson provided the government all information and evidence she had concerning the offense.”).

Insofar as the Court of Appeals for the Seventh Circuit considered the “limitations on Thompson’s perceptual and analytical abilities,” id. at 171, the Court appears to have done so in order to assess whether Thompson provided the Government with all the information to which she had access, not whether she subjectively believed that the information was truthful. In any event, to the extent that Sherpa and Thompson are arguably on point and support Reynoso’s construction of § 3553(f)(5) — propositions that we believe are unsustainable based on reasonable

interpretations of the Courts’ opinions — we conclude that the cases are wrongly decided and decline to follow them. III. In sum, we hold that a defendant may not qualify for safety valve relief under 18 U.S.C. § 3553(

f) without proving both that information he or she provided to the Government was objectively true and that he or she subjectively believed that such information was true. Because Reynoso concedes that the information she provided to the Government was objectively false, she is not entitled to relief under the safety valve provision. Accordingly, the judgment of the District Court is affirmed. .

The other four requirements for relief under the safety valve provision are as follows: (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant 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; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise.... 18 U.S.C. § 3553(f). .

Because the Government has accepted Dr. Mills’ findings, for purposes of this appeal we assume, as did the District Court, that Reyno-so subjectively believed that she had truthfully provided all the information she had. . In referring to these cases, we do not mean to suggest, as our dissenting colleague would have it, that this Court has previously decided the question before us, even "subconsciously,” post at 151.

Rather, we mean to demonstrate that this Court has placed little significance on the distinction between "truthfully provided” and "truthful information.” We are also less willing than the dissenter to dismiss the plain language of these opinions as "off-hand judicial rewriting” or to speculate that our colleagues were motivated, not by reasoned conviction, but rather by a desire to avoid the grammatical “faux pas’’ of split infinitives. Post at 151 n. 1. .

In addition to the two arguments discussed below, Reynoso also suggests that the District Court's construction of § 3553(f)(5) conflicts with the law concerning mental competence to stand trial. See 18 U.S.C. § 4241. However, Reynoso did not make this argument until her reply brief, let alone raise the issue of her competence to stand trial before the District Court (to the contrary, Dr.

Mills stated explicitly in his report that Reynoso had "the requisite capacity to cooperate with [defense counsel], to evaluate her present circumstances and to enter a plea,” and "[w]e repeatedly, have said that we will not consider contentions first advanced at such a late stage.”) Strom v. Goldman, Sachs & Co., 202 F.3d 138, 142-43 (2d Cir.1999) (citing cases). Accordingly, we decline to consider Reynoso’s argument here. In any event, neither law nor logic suggests that our

interpretation of § 3553(0(5) has implications for the law concerning mental competence to stand trial.