United States v. Miller

MEMORANDUM *

Miller raises two issues in his timely sentencing appeal over which we have jurisdiction under 28 U.S.C. § 1291 . Miller first contends that the district court erred at sentencing by not making an independent determination that he did not qualify for safety valve relief under 18 U.S.C. § 3553© (as implemented at U.S.S.G. § 5C1.2). He argues that the district court improperly deferred judgment to the government, which maintained at sentencing that Miller was not truthful and completely forthcoming with information concerning the offense and, therefore, ineligible for safety valve relief because he did not meet the fifth requirement of the safety valve provision.

Miller had the burden of proving, by a preponderance of the evidence, that he satisfies each of the five criteria and is thus entitled to the safety valve. United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir.1996). “Once he has made this showing, however, it falls to the Government to show that the information he has supplied *638 is untrue or incomplete.” United States v. Shresthra, 86 F.3d 935, 940 (9th Cir.1996).

Miller did not meet his burden of proving, by a preponderance of the evidence, that he…