     Case: 15-51181   Document: 00513867045        Page: 1   Date Filed: 02/08/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                    No. 15-51181
                                                                         FILED
                                                                   February 8, 2017
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

GABRIEL HERIBERTO CRUZ-ROMERO, also known as Gabriel H. Cruz-
Romero,

             Defendant - Appellant




                Appeals from the United States District Court
                      for the Western District of Texas


Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Gabriel Heriberto Cruz-Romero appeals his sentence for possession with
intent to distribute 100 kilograms or more of marijuana. He argues that the
government breached the plea agreement by opposing a safety valve
adjustment to his sentence. For the reasons set forth below, we dismiss Cruz-
Romero’s appeal as barred by the appeal waiver in the plea agreement.
                                         I
      Cruz-Romero, a citizen of Mexico, was pulled over near the U.S.-Mexico
border. When police approached his vehicle, they observed a bundle of sugar
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                                No. 15-51181
sacks, commonly used to smuggle illegal narcotics. Police ultimately discovered
fifteen bundles of marijuana in the vehicle weighing 146.8 kilograms.
      Cruz-Romero and his passenger were arrested and read their Miranda
rights. Cruz-Romero declined to make a statement, but the passenger admitted
he had been hired to transport marijuana into the United States.
      Cruz-Romero was indicted for (1) conspiracy to possess with intent to
distribute 100 kilograms or more of marijuana, and (2) possession with intent
to distribute 100 kilograms or more of marijuana. He pleaded guilty to the
second count, and the district court dismissed the first count. In his plea
agreement with the government, Cruz-Romero waived his right to appeal his
conviction or sentence on any ground other than ineffective assistance of
counsel or prosecutorial misconduct. Also in the plea agreement, the
government agreed not to oppose Cruz-Romero’s eligibility for a safety valve
adjustment at sentencing if he complied with the relevant criteria. These
include that, no later than sentencing, a defendant provide all information and
evidence he has regarding the offense to the government.
      Prior to sentencing, the government scheduled a debriefing meeting with
Cruz-Romero but he canceled on the day it was set to take place. Cruz-Romero
never made any post-arrest statement or otherwise volunteered information to
the government.
      The statutory minimum sentence for Cruz-Romero’s conviction was 60
months. Without the statutory minimum, the Guidelines range would have
been 37 to 46 months. The Presentence Report did not include a safety valve
adjustment, which would have required the district court to sentence Cruz-
Romero without regard to any statutory minimum. Cruz-Romero objected,
arguing that the government breached the plea agreement by requiring more
information than what he had stipulated to in the plea agreement in order to
qualify for the adjustment. The government responded that Cruz-Romero did
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                                   No. 15-51181
not qualify because he (1) did not provide a post-arrest statement, (2) canceled
his debrief with the government, and (3) did not provide even the most basic
information about his offense to the government, such as who hired him or
where he was taking the marijuana. The probation officer referred the
objection to the district court for ruling.
      Cruz-Romero reiterated his objection at sentencing. He again argued
that his stipulation to facts in the plea agreement satisfied his safety valve
obligation. The district court disagreed, stating that Cruz-Romero had not
provided any information to the government and chose not to debrief. After
overruling Cruz-Romero’s objection, the district court sentenced him to the
statutory minimum of 60 months.
      Cruz-Romero appeals his sentence. Although he knowingly and
voluntarily waived his right to appeal his sentence in the plea agreement, he
contends that the appeal waiver is unenforceable because the government
breached its express promise not to oppose his eligibility for a safety valve
adjustment. He further argues that the district court erred in denying him the
adjustment.
                                         II
      We review de novo whether an appeal waiver bars an appeal. United
States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). In doing so, we also review
de novo whether the government breached a plea agreement. United States v.
Munoz, 408 F.3d 222, 226 (5th Cir. 2005). In examining the government’s
compliance with its promises in the plea agreement, we ask “whether the
Government’s     conduct    was    consistent   with   the   parties’   reasonable
understanding of the agreement.” United States v. Harper, 643 F.3d 135, 139
(5th Cir. 2011). The defendant has the burden of proving the facts constituting
a breach of the agreement by a preponderance of the evidence. Id.


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                                  No. 15-51181
                                        III
      The threshold issue is whether the government breached the plea
agreement by opposing a safety valve adjustment. If not, then the appeal
waiver must be enforced.
      The purpose of a safety valve adjustment is “to allow less culpable
defendants who fully assisted the Government to avoid the application of the
statutory mandatory minimum sentences.” United States v. Rodriguez, 60 F.3d
193, 196 (5th Cir. 1995). There are five criteria. See U.S.S.G. § 5C1.2(a)(1)-(5);
see also 18 U.S.C. § 3553(f)(1)-(5). If they are satisfied, the district court must
impose a sentence without regard to a statutory minimum. U.S.S.G. § 5C1.2(a).
      Here, the government promised not to oppose Cruz-Romero’s eligibility
for a safety valve adjustment if he satisfied the relevant criteria prior to
sentencing. The parties dispute only whether Cruz-Romero met the fifth
criterion. It requires that a defendant, “not later than the time of the
sentencing hearing . . . truthfully provide[] to the Government all information
and evidence [he] has concerning the offense or offenses that were part of the
same course of conduct or of a common scheme or plan.” U.S.S.G. § 5C2.1(a)(5).
      The defendant has the burden of ensuring complete disclosure of
information and evidence to the government under Section 5C1.2(a)(5). See
United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996). Cruz-Romero
argues that his stipulation to the factual basis in the plea agreement satisfied
this burden. But “[t]he plain language of the statutes and guidelines requires
that [the defendant] truthfully provide all information and evidence regarding
the offense to be eligible for the [safety valve] reduction.” United States v.
Moreno-Gonzalez, 662 F.3d 369, 375 (5th Cir. 2011) (emphasis added); see also
Rodriguez, 60 F.3d at 196 (explaining that benefit of safety valve adjustment
applies only to those who “fully assisted the Government”). Cruz-Romero did
not dispute, or offer any evidence to contradict, the government’s claim that he
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                                  No. 15-51181
had failed to provide all relevant information known to him. Stipulating to
some basic facts in the plea agreement obtained wholly from a co-defendant,
without more, did not obviate Cruz-Romero’s burden of assisting the
government. Cf. Rodriguez, 60 F.3d at 196 (“A defendant’s statements to a
probation officer do not assist the Government.”). Cruz-Romero had ample
opportunity to offer assistance to the government, including a scheduled
debrief, but he declined to do so. He fails to show that the government’s conduct
in opposing his eligibility for a safety valve adjustment, based on his failure to
comply with Section 5C1.2(a)(5), was inconsistent with a reasonable
understanding of the plea agreement.
      Cruz-Romero also argues that the plea agreement barred the
government from challenging his eligibility for a safety valve adjustment
because it reserves the government’s right to contest his eligibility only for a
substantial assistance adjustment. The safety valve and substantial assistance
provisions are contained in separate paragraphs of the plea agreement, and
the limitation provision in question appears only in the latter. It has no bearing
on the safety valve provision, the text of which explicitly reserves the
government’s right to oppose an adjustment thereunder if Cruz-Romero does
not satisfy Section 5C1.2(a).
      Lastly, Cruz-Romero argues that the appeal waiver is unenforceable
because the plea agreement does not explicitly reserve the government’s right
to oppose the application of Section 5C1.2 or define what constitutes
“cooperation” on his part, rendering it fatally ambiguous. This argument is
conclusory, and we deem it abandoned. See United States v. Charles, 469 F.3d
402, 407-08 (5th Cir. 2006).
      Because Cruz-Romero fails to show that the Government breached the
plea agreement, his appeal is barred by the appeal waiver.


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                          No. 15-51181
                               IV
 The appeal is DISMISSED.




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