USA v. Roman-Salgado

Filing 920071115

Opinion

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-40384 Summary Calendar November 15, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. LAMBERTO ROMAN-SALGADO Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:06-CR-1222-ALL Before KING, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* Lamberto Roman-Salgado appeals the sentence following his guilty-plea conviction for possession with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. 841. Ramon-Salgado argues that the district court failed to make adequate factual findings to support its decision to deny him safety valve relief and that the district court erred in denying him safety valve relief based upon its erroneous conclusion that the Government's objection to the safety valve barred it from granting or even considering the 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * No. 07-40384 Although application of the safety valve pursuant to 18 U.S.C. 3553(f) and U.S.S.G. 5C1.2 was addressed during Roman-Salgado's sentencing hearing, Roman-Salgado did not challenge the reason the district court gave for denying the safety valve or the failure of the district court to make any factual findings in connection with its denial of the safety valve. Accordingly, we review those particular issues for plain error. See Unites States v. Perez, 484 F.3d 735, 744 (5th Cir. 2007); United States v. Rodriguez, 15 F.3d 408, 414-15 (5th Cir. 1994). The Government's objection to the application of the safety valve did not preclude the district court from considering the safety valve. See 5C1.2(a)(5); see also 3553(f)(5); cf. U.S.S.G. 5K1.1. Accordingly, the district court's belief that it did not have the authority to consider the safety valve was error that was plain. Because of the error, the district court failed to factually develop whether Roman-Salgado was entitled to the safety valve. Given the lack of factual development of the record, it is impossible to determine whether the district court's error affected Roman-Salgado's substantial rights. Therefore, RomanSalgado's sentence is vacated and the case remanded for resentencing for the district court to consider whether he is entitled to the safety valve and resentence him accordingly. See United States v. Butler, 988 F.2d 537, 543-44 (5th Cir. 1993) We note that the judgment mistakenly states that Roman-Salgado was convicted pursuant to 21 U.S.C. 841 and 846. The record reflects that RomanSalgado pleaded guilty to a violation of 841, but that the conspiracy count under 846 was dismissed. Accordingly, on remand, the district court is directed to correct the judgment to reflect that the only offense of conviction is 21 U.S.C. 841. CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING AND FOR CORRECTION OF CLERICAL ERROR 2

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