United States v. Felipe Ramirez-Arellano , 583 F. App'x 301 ( 2014 )

Case: 13-11370 Document: 00512802608 Page: 1 Date Filed: 10/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-11370
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 14, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
FELIPE RAMIREZ-ARELLANO,
Defendant−Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-30-19
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Felipe Ramirez-Arellano appeals the 210-month guideline sentence on
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-11370 Document: 00512802608 Page: 2 Date Filed: 10/14/2014
No. 13-11370
his guilty-plea conviction of conspiracy to distribute and possession with intent
to distribute 100 grams or more of heroin. He argues that the district court
erred in failing to apply U.S.S.G. § 2D1.1(b)(16), the safety-valve adjustment,
because he met the criteria of U.S.S.G. § 5C1.2(a), in particular the require-
ment that he provide the government with all information that he possessed.
Ramirez-Arellano contends that law-enforcement officers always assume
that a defendant is withholding information and that he should not be penal-
ized based on the subjective belief of the agent. He further asserts that he took
the affirmative step of offering to cooperate early in the proceeding, but the
government delayed conducting an interview for almost a year, and his mem-
ory faded concerning the details surrounding the offense. Additionally,
Ramirez-Arellano points out that other circuits have determined that a good-
faith effort to provide information is sufficient to satisfy the cooperation
requirement of § 5C1.2, and he contends that he made the requisite good-faith
effort to cooperate.
This court will uphold the district court’s factual determination of
whether a defendant qualifies for the safety valve if it is not clearly erroneous;
we conduct a de novo review of the district court’s legal interpretation of the
safety-valve standard. United States v. McCrimmon, 443 F.3d 454, 457 (5th
Cir. 2006); United States v. Treft, 447 F.3d 421, 426 (5th Cir. 2006). A decision
is not clearly erroneous unless it is not plausible in light of the entire record.
See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
Under § 2D1.1(b)(16), a defendant is eligible for a two-level safety-valve
reduction if he meets the criteria listed in § 5C1.2(a), which includes a require-
ment that, by sentencing, “the defendant has truthfully provided to the Gov-
ernment all information and evidence the defendant has concerning the offense
or offenses that were part of the same course of conduct or of a common scheme
2
Case: 13-11370 Document: 00512802608 Page: 3 Date Filed: 10/14/2014
No. 13-11370
or plan.” § 5C1.2(a)(5); see also § 3553(f)(5).
The district court’s determination that Ramirez-Arellano did not fully
and truthfully debrief is plausible in light of the entire record. See Davis, 76
F.3d at 84. The government’s assertion that Ramirez-Arellano failed to provide
the agent with complete and truthful information was bolstered by defense
counsel’s acknowledgment to the district court that counsel did not believe that
his client had provided all the information he had. Ramirez-Arellano provided
no evidence showing his full cooperation. In light of the evidence in the record,
the district court did not clearly err in determining that Ramirez-Arellano
failed to carry his burden of showing that he was entitled to the application of
the safety-valve reduction. See United States v. Moreno-Gonzalez, 662 F.3d
369, 375 (5th Cir. 2011); cf. Treft, 447 F.3d at 426 (affirming the denial of the
safety-valve reduction where the parties stipulated at sentencing that the
defendant had failed to provide the government with all information concern-
ing the offense).
The judgment of sentence is AFFIRMED.
3