USA v. Fo
Filing
920070314
Opinion
United States Court of Appeals Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 14, 2007 Charles R. Fulbruge III Clerk No. 06-50042 Summary Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROBERT FO, JR., Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas (3:99-CR-811-1)
Before DAVIS, BARKSDALE, AND BENAVIDES, Circuit Judges. PER CURIAM:* Having pleaded guilty in 1999 to conspiracy to possess, with intent to distribute, five kilograms or more of cocaine and to possession, with intent to distribute, 500 grams or more of
cocaine, Robert Fo, Jr., contests his sentence in 2005, contending the district court clearly erred in denying him a safety-valve
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*
reduction pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. (Fo was a fugitive for six years prior to sentencing.) A district court's factual findings regarding a safety-valve adjustment are reviewed for clear error; its legal interpretations, de novo. 1999). United States v. Miller, 179 F.3d 961, 964 (5th Cir.
As noted, Fo claims only clear error by the district court
in its findings of fact. "U.S.S.G. § 5C1.2, also known as the `safety valve' provision, limits the applicability of statutory minimum sentences in certain cases, specifically, those involving less culpable defendants who fully assist the Government." United States v. Treft, 447 F.3d
421, 426 (5th Cir.) (internal citations omitted), cert. denied, 127 S. Ct. 555 (2006). To receive a safety-valve adjustment, a
defendant must meet five criteria listed in § 5C1.2; if he does, the sentencing court may impose its sentence in accordance with the Guidelines rather than the statutory minimum. U.S.S.G. § 5C1.2(a); 18 U.S.C. § 3553(f). In rejecting Fo's safety-valve-adjustment request, the
district court found Fo had not satisfied § 5C1.2(a)(5), which requires that, "not later than the time of the sentencing hearing, the defendant ... truthfully provide[] to the Government 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 or plan". § 5C1.2(a)(5). Fo maintains he made a
timely and complete disclosure of all relevant facts surrounding 2
the commission of the offenses charged.
He also claims the
district court's factual findings as to drug quantities likewise support the necessary findings for a safety-valve adjustment. The defendant has the burden of establishing eligibility for the safety-valve reduction, including showing he truthfully
provided the Government with all relevant information and evidence regarding the offense. 146-47 (5th Cir. United States v. Flanagan, 80 F.3d 143, Information in the Presentence
1996).
Investigation Report, which the district court adopted in relevant part, shows: Fo's involvement in the drug conspiracy extended
beyond the two kilogram deals to which he admitted; and he was actively involved in negotiations regarding a sale of 100 kilograms of cocaine, a fact Fo denies. Despite Fo's contentions to the
contrary, a review of the record shows Fo failed to truthfully provide the Government with all information and evidence regarding the instant offenses. See U.S.S.G. § 5C1.2; 18 U.S.C. §
3553(f)(5); Flanagan, 80 F.3d at 146-47.
Accordingly, because the
district court's safety-valve-reduction finding is plausible in light of the record as a whole, see United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996), its challenged finding is not clearly erroneous. AFFIRMED
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