USA v. Juan Sifuentes

Filing

UNPUBLISHED OPINION FILED. [09-51116 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/29/2010 for Appellant Juan Manuel Sifuentes [09-51116]

USA v. Juan Sifuentesase: 09-51116 C

Document: 00511286104 Page: 1 Date Filed: 11/05/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51116 S u m m a r y Calendar November 5, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J U A N MANUEL SIFUENTES, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 2:08-CR-1027-3

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Juan Manuel Sifuentes pleaded guilty to possessing a n d conspiring to possess with intent to distribute 100 kilograms or more of m a r iju a n a . He appeals his 60-month statutory minimum sentence, arguing that t h e district court should have imposed a shorter sentence under the safety-valve s e n te n c in g guideline, U.S.S.G. § 5C1.2. See 18 U.S.C. § 3553(f); United States v . Lopez, 264 F.3d 527, 529-30 (5th Cir. 2001). We will uphold the sentencing

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-51116 Document: 00511286104 Page: 2 Date Filed: 11/05/2010 No. 09-51116 c o u r t's determination as long as it is not clearly erroneous. United States v. M c C r im m o n , 443 F.3d 454, 457 (5th Cir. 2006). A defendant seeking relief under the safety valve must show, among other t h in g s , that he has truthfully provided the government with all information and e v id e n c e related to the offense. § 3553(f)(5); § 5C1.2(a)(5); United States v. F la n a g a n , 80 F.3d 143, 146-47 (5th Cir. 1996). Sifuentes takes issue with the d is t r ic t court's decision to adopt the finding in the amended Presentence Report (P S R ) that he did not truthfully provide all of the required information. He s u g g e s t s that this finding had no factual basis and asserts that the government a n d the district court should have inquired into whether the probation officer w h o prepared the PSR verified the statement with the case agent who debriefed S ifu e n t e s . He also argues that the district court improperly adopted the PSR's c o n c lu s io n on this point based solely on its view that he had failed to tell the t r u t h to authorities immediately after his arrest. T h e court's determination that Sifuentes did not truthfully debrief is p la u s ib le in light of the entire record. See United States v. Powers, 168 F.3d 741, 7 5 3 (5th Cir. 1999). The probation officer explained in the addendum to the PSR t h a t he had contacted the case agent and that the case agent had verified that S i f u e n t e s debriefed but concluded that his debriefing had been untruthful. Sifuentes did not come forward with any evidence that would support a c o n c lu s io n that the finding in the PSR was incorrect. Because Sifuentes failed t o rebut the PSR's findings, the district court was entitled to adopt them. See U n ite d States v. Smith, 528 F.3d 423, 425 (5th Cir. 2008). The denial of the s a fe t y -v a lv e adjustment was not clearly erroneous. See Powers, 168 F.3d at 753. A F F IR M E D .

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