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NOT FOR PUBLICATION SEP 10 2013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-2
v.
MEMORANDUM*
MALCOLM BROOKS,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-30300
Plaintiff - Appellee, D.C. No. 3:12-cr-00015-TMBDMS-1
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 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 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 Cir. 1996).
page 3
Brooks also failed to establish that he did not “possess a firearm . . . in
connection with the offense.” 18 U.S.C. § 3553(f)(2). Although it’s unclear
whether the district court applied the proper burden of proof, because Brooks failed
to raise this issue below, he must demonstrate plain error. See United States v.
Rosas,
615 F.3d 1058, 1066 n.3 (9th Cir. 2010). The district court did not plainly
err in concluding that Brooks’s failure to comply with the truthful disclosure
requirement disqualifies him from safety valve relief regardless of whether he
satisfied the firearms prong. Even assuming the district court erroneously required
Brooks to show that it was “clearly improbable” that he possessed the firearms in
connection with the offense, given the accessibility of two loaded weapons to
anyone entering one of the growing areas, Brooks is unlikely to carry his burden
under the preponderance-of-the-evidence standard. Brooks was therefore not
prejudiced by any mistake concerning the burden of proof.
2. The district court did not abuse its discretion when it dismissed the first
indictment against Corey Gresham without prejudice. See United States v. Taylor,
487 U.S. 326, 332–33 (1988).
Probable cause for the search of 1100 Fairview Loop existed even if the state
troopers intentionally or negligently omitted from the search warrant affidavit that
page 4
there were negative smell tests and that another structure was nearby, because the
other evidence was sufficient to show “the kind of ‘fair probability’ on which
‘reasonable and prudent [people,] not legal technicians, act.” Florida v. Harris, 133
S. Ct. 1050, 1055 (2013) (alteration in original). The district court’s decision to
credit the state trooper’s testimony that Gresham properly waived his Miranda
rights—and to expressly discredit Gresham’s testimony to the contrary—was not
clearly erroneous. See United States v. Clawson,
831 F.2d 909, 914 (9th Cir.
1987). Because Gresham’s argument challenging the sufficiency of the evidence
rests on his erroneous premise that the foregoing evidence is inadmissible, it must
fail.
Finally, the jury’s special verdict finding that Gresham manufactured or
possessed at least 100 marijuana plants was supported by the record. Therefore the
district court did not err by imposing the mandatory minimum sentence of five
years.
AFFIRMED.
FILED
United States v. Brooks, No. 12-30261 SEP 10 2013
BERZON, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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 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. § 3553(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.
