United States v. Renteria , 283 F. App'x 199 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 19, 2008
No. 07-51068
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RICARDO RENTERIA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-16-2
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Ricardo Renteria pleaded guilty to conspiracy to distribute at least five
kilograms of cocaine and was sentenced to 235 months of imprisonment and five
years of supervised release.
Renteria argues on appeal that he should have received a two-level
reduction in his offense level for a safety valve adjustment pursuant to U.S.S.G.
§§ 2D1.1(b)(9) and 5C1.2(a) (2006).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-51068
Because, as Renteria concedes, his argument is being raised for the first
time on appeal, our review is for plain error. See United States v. Rodriguez, 15
F.3d 408, 414-15 (5th Cir. 1994).
Renteria contends that false statements that he made to a probation
officer during his presentence interview concerning a November 2006 incident
did not violate § 5C1.2(a)(5) because they did not constitute statements to the
“Government.” Although a probation officer, for purposes of § 5C1.2, is not the
Government, Renteria has not shown that he met his burden of providing the
Government with all of the information and evidence that he had concerning the
incident, and thus he has not shown that the district court plainly erred
concerning this issue. See United States v. Flanagan, 80 F.3d 143, 146-47 (5th
Cir. 1996); United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995).
Renteria also argues that the district court’s denial of acceptance of
responsibility alone should not have prevented him from receiving the safety
valve reduction. He further contends that he met the requirements of § 5C1.2(a)
and that his failure to provide the Government with information concerning the
November 2006 offense should not prevent him from receiving the safety valve
reduction under § 5C1.2(a)(5) because it was not part of a common scheme or
plan with the instant offense. However, nothing in the record indicates that the
district court denied Renteria a safety valve adjustment solely on the basis that
he was denied acceptance of responsibility, and the district court’s factual
determinations concerning Renteria’s eligibility for a safety valve adjustment
cannot constitute plain error. See United States v. Lopez, 923 F.2d 47, 50 (5th
Cir. 1991).
AFFIRMED.
2