## Facts

- As part of a broader federal drug prosecution, the government obtained Donna Romero’s conviction for transporting illegal drugs.
- Violence was not a factor in Romero’s offense, and she faced a five-year mandatory minimum sentence.
- Romero sought a sentence below the mandatory minimum under the federal “safety valve,” 18 U.S.C. § 3553(f) (and the related guideline provision), which can permit qualifying nonviolent, low-record defendants to be sentenced without regard to the mandatory minimum if they meet all statutory conditions.
- During the presentence process, Romero’s husband (and father of her children) took a polygraph examination that the government treated as supporting his version of events that Romero was solely responsible for the drug-transporting conduct.
- On advice of counsel, Romero refused to submit to a polygraph examination.
- At sentencing, the polygraph examiner did not testify, and the record did not establish the examiner’s qualifications or that the test was properly administered.
- The district court relied on the husband’s reported polygraph results and Romero’s refusal to take a polygraph as reasons to reject Romero’s request for safety-valve relief and imposed the five-year mandatory minimum sentence.
- Romero appealed; the Eighth Circuit affirmed the sentence in the underlying appeal, and this published decision at 128 F.3d 1198 is an order that republishes Judge Bright’s dissent as modified (without changing the affirmance).

## Issues

1. Whether the district court erred in denying safety-valve relief based on its conclusion that Romero had not satisfied the requirement to truthfully provide complete information about the offense, where the court relied in part on the reported results of a spouse’s polygraph and Romero’s refusal to take a polygraph.
2. Whether the district court could consider polygraph-related material at sentencing when the foundation for the test’s reliability (including examiner qualifications and proper administration) was not established.

## Decision

- The Eighth Circuit left the affirmed sentence in place; Romero remained subject to the five-year mandatory minimum.
- The court issued an order modifying and republishing Judge Bright’s dissenting opinion from the earlier Weekly decision; the modification did not alter the judgment.
- In the modified dissent, Judge Bright would have remanded Romero’s case for resentencing because he concluded the sentencing court improperly treated the spouse’s polygraph and Romero’s refusal to take a polygraph as key support for denying safety-valve relief.

## Legal Principles

- Safety-valve relief under 18 U.S.C. § 3553(f) is unavailable unless the defendant satisfies all statutory conditions, including the requirement to truthfully provide to the government all information the defendant has concerning the offense and related conduct.
- Sentencing judges may consider information that would not be admissible at trial, but due process requires that information used at sentencing have sufficient indicia of reliability.
- A defendant’s eligibility for safety-valve relief often turns on the sentencing court’s fact findings about the defendant’s truthfulness and completeness; appellate review of those findings is highly deferential.
- As reflected in the modified dissent republished in this order, reliance on unsubstantiated polygraph results (and a defendant’s refusal to submit to a polygraph) raises reliability and fairness concerns when the record does not establish the test’s administration and the examiner’s qualifications.

## Conclusion

United States v. Weekly, 128 F.3d 1198 (8th Cir. 1997), is a published order modifying and republishing a dissent in the earlier Weekly appeal; the underlying judgment affirming Romero’s mandatory-minimum sentence remained unchanged. The dispute highlighted in the modified dissent centers on the denial of safety-valve relief after the sentencing court relied on a spouse’s reported polygraph results and the defendant’s refusal to take a polygraph despite an undeveloped record on the polygraph’s reliability.


United States v. Weekly, 128 F.3d 1198 (1997)