United States v. Lopez , 284 F. App'x 216 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 14, 2008
No. 07-20188
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN ANGEL LOPEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-446-1
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Juan Angel Lopez pleaded guilty to one count of conspiracy to possess with
intent to distribute 1000 kilograms or more of marijuana and one count of aiding
and abetting possession with intent to distribute 1000 kilograms or more of
marijuana. Lopez’s presentence report (PSR) noted that Lopez did not appear
to qualify for a reduction under U.S.S.G. § 5C1.2, the guidelines safety valve
provision, because he had not been debriefed. Lopez objected to this paragraph
of the PSR and requested the opportunity to be debriefed. At sentencing, Lopez
*
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should not be published and is not precedent except under the limited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. 07-20188
asserted that he was debriefed. The Government stated that the debriefing had
not been truthful. Lopez acknowledged the Government’s position. Lopez did
not request a hearing on the matter or dispute the finding that he had not been
truthful. The district court overruled all objections to the PSR and sentenced
Lopez to 120 months of imprisonment, five years of supervised release, and a
$100 special assessment.
Lopez argues that the district court erred by failing to hold an evidentiary
hearing into the truthfulness of the information provided to the Government by
Lopez. Lopez’s failure to request a hearing or object to the district court’s factual
finding without a hearing limits appellate review to the plain-error standard.
See United States v. Ochoa-Cruz, 442 F.3d 865, 866-67 (5th Cir. 2006). As Lopez
was given the opportunity to review and object to the PSR he has not shown
error, plain or otherwise.
Lopez argues that the district court erred in determining that he did not
qualify for the safety valve adjustment because his debriefing had not been
truthful. After United States v. Booker, 543 U.S. 220 (2005), this court continues
to apply the pre-Booker clearly erroneous standard of review to a district court’s
factual findings pertaining to sentencing adjustments such as the safety valve.
See United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005); see also
United States v. Miller, 179 F.3d 961, 963-64 (5th Cir. 1999).
Pursuant to U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), a defendant who
provides information to the Government may escape the imposition of a
statutory minimum sentence if the district court finds that he meets five criteria.
United States v. Lopez, 264 F.3d 527, 529-30 (5th Cir. 2001); see also U.S.S.G.
§ 2D1.1(b)(11) (providing two-level reduction offense level if defendant meets five
criteria set forth in § 5C1.2). The fifth criterion, the only one at issue here,
requires that “the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense.”
§ 5C1.2(a)(5); see also § 3553(f)(5). The defendant has the burden of showing
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No. 07-20188
eligibility for the safety-valve reduction, including the burden of showing that
he truthfully provided the Government with all relevant information. United
States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996).
In this case, the Government asserted that Lopez had not been truthful
during debriefing. Lopez did not dispute this assertion at sentencing or attempt
to present any contrary evidence to carry his burden of proving that he had
provided true information. On appeal, Lopez does not assert unequivocally that
he had been truthful and has failed to cite any evidence that he could present to
show that he had told the truth when debriefed. Lopez has not shown that the
district court was clearly erroneous in its factual finding that he was not eligible
for the relief under the safety valve provisions of the Sentencing Guidelines.
Lopez’s sentence is AFFIRMED.
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