United States v. Malcom Brooks

FILED

NOT FOR PUBLICATION SEP 10 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-30261

Plaintiff - Appellee, D.C. No. 3:12-cr-00015-TMB-

v.

MEMORANDUM*

MALCOLM BROOKS,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 12-30300

Plaintiff - Appellee, D.C. No. 3:12-cr-00015-TMB-

DMS-

v.

COREY GRESHAM,

Defendant - Appellant.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Argued and Submitted August 13, 2013 Anchorage, Alaska

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. page 2 Before: KOZINSKI, Chief Judge, BERZON and IKUTA, Circuit Judges.

1. Even assuming that Appellant Malcolm Brooks isn’t bound by his waiver

of appellate rights, cf. United States v. Bibler, 495 F.3d 621, 623–24 (9th Cir.

2007), he has failed to establish eligibility for safety valve relief by a

preponderance of the evidence. See United…

MEMORANDUM *

1. Even assuming that Appellant Malcolm Brooks isn’t bound by his waiver of appellate rights, cf. United States v. Bibler, 495 F.3d 621, 623-24 (9th Cir.2007), he has failed to establish eligibility for safety valve relief by a preponderance of the evidence. See United States v. Mejia-Pimental, 477 F.3d 1100, 1104 (9th Cir.2007).

The district judge found that Brooks failed to “truthfully provide[ ] to the Government all information and evidence” concerning the crime prior to his sentencing *594 hearing. 18 U.S.C. § 3553 (f)(5). He noted inconsistencies in two of Brooks’s testimonies and found that Brooks failed to provide an explanation for the discrepancies. The court made no finding that Brooks made a truthful or complete disclosure in either testimony. Because the evidence indicates much greater involvement by Gresham than Brooks disclosed, we cannot find that the district court clearly erred in concluding that Brooks failed to “provide, prior to sentencing, all information at his disposal which is relevant to the offense, whether or not it is relevant or useful to the government’s investigation.” United States v. Shrestha, 86 F.3d 935, 939 (9th…

concurring:

I disagree with the majority as to one point:

The district court applied an erroneous standard with regard to one safety valve factor, 18 U.S.C. § 3553 (f)(5). The district court considered only the truth of the information provided at Gresham’s trial. But under United States v. Shrestha, 86 F.3d 935, 939-40 (9th Cir.1996), the *595 question is whether complete and truthful information was ever provided prior to sentencing, not whether the defendant subsequently provided false information.

I agree, however, that on a plain error standard, Brooks cannot prevail as to another safety valve factor, 18 U.S.C. § 3558 (f)(2), concerning possessed firearms in connection with the offense. I therefore agree that we must affirm the denial of safety valve relief to Brooks.