United States v. Erasmo Lemus , 553 F. App'x 736 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30001
Plaintiff - Appellee, D.C. No. 2:12-cr-06012-EFS
v.
MEMORANDUM*
ERASMO BIRRUETA LEMUS,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Erasmo Birrueta Lemus appeals from the district court’s judgment and
challenges the 120-month sentence imposed following his guilty-plea conviction
for conspiracy to possess and possession with intent to distribute at least 50 grams
of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
aiding and abetting, in violation of 18 U.S.C. § 2. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Birrueta Lemus contends that the district court erred by finding him
ineligible for safety valve relief. We review for clear error, see United States v.
Mejia-Pimental, 477 F.3d 1100, 1103 (9th Cir. 2007), and find none. The record
supports the district court’s finding that Birrueta Lemus failed to provide the
government with all of the information that he had concerning the offense. See 18
U.S.C. § 3553(f)(5); United States v. Thompson, 81 F.3d 877, 880 (9th Cir. 1996)
(“[A] defendant must give the Government all the information he has concerning
the offense, including the source of his drugs, to avail himself of the benefit of [the
safety valve].”).
Birrueta Lemus also contends the district court erred by failing to place the
case agent under oath and by depriving Birrueta Lemus of his Sixth Amendment
right to confront the witnesses against him. We review for plain error, see United
States v. Orm Hieng, 679 F.3d 1131, 1138-39 (9th Cir. 2012), and find none.
Birrueta Lemus has not shown a reasonable probability that he would have
received a different sentence had the court placed the agent under oath or given
Birrueta Lemus the opportunity to cross-examine the agent. See United States v.
Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
AFFIRMED.
2 13-30001