     Case: 15-50673      Document: 00513714884         Page: 1    Date Filed: 10/12/2016




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

                                    No. 15-50673
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        October 12, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

MISAEL JOSE RODRIGUEZ-SANCHEZ, also known as Jose Rodriguez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:14-CR-189-34


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Misael Jose Rodriguez-Sanchez pleaded guilty to one count of conspiracy
to possess with intent to distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846, and was sentenced to the statutory minimum
term of 10 years of imprisonment and a three-year term of supervised release.
On appeal, Rodriguez-Sanchez contends that the district court erred by
denying him a safety valve reduction under U.S.S.G. § 5C1.2; finding that he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                     No. 15-50673

was accountable for 1.3 kilograms of methamphetamine actual; and denying
him a mitigating role adjustment under U.S.S.G. § 3B1.2.
       With respect to the safety valve, Rodriguez-Sanchez argues that the
district court erred by failing to make findings of fact as to whether his letter
was truthful and conflating the safety valve requirements with those for
substantial assistance under U.S.S.G. § 5K1.1. Because he did not specifically
raise either of the arguments he now asserts in the district court, our review is
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). To show plain error, Rodriguez-Sanchez must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
       Rodriguez-Sanchez has not demonstrated a clear or obvious error. While
the district court did not make specific factual findings as to the truthfulness
of the letter, it did give a brief explanation as to why it was rejecting the
request for a safety valve, namely that the letter was of unknown content and
not provided to the Government until shortly before sentencing. Implicit in
the denial was the district court’s determination that Rodriguez-Sanchez had
not given the Government sufficient time to verify the information in the letter
and, accordingly, had not met his burden to demonstrate that he truthfully
provided the Government with all relevant information and evidence regarding
the offense. See United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996);
United States v. Powell, 387 F. App’x 491, 496 (5th Cir. 2010). 1 Nor is there
any indication in the record that the district court conflated the requirements


      1  Although unpublished opinions issued on or after January 1, 1996, are not
precedential, they may nevertheless be persuasive. See Ballard v. Burton, 444 F.3d 391, 401
& n.7 (5th Cir. 2006); 5TH CIR. R. 47.5.4.


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                                 No. 15-50673

for the safety valve with those for substantial assistance. The district court
found safety valve relief was inappropriate because Rodriguez-Sanchez had
not carried his burden to demonstrate that he debriefed truthfully, given that
the Government did not have a reasonable amount of time to verify the
information provided in Rodriguez-Sanchez’s late-disclosed letter.           See
Flanagan, 80 F.3d at 146-47; Powell, 387 F. App’x at 496.
      Further, even if Rodriguez-Sanchez had demonstrated a clear or obvious
error, he has not demonstrated that he can satisfy the third and fourth prongs
of the plain error test. Accordingly, he has not demonstrated plain error. See
Puckett, 556 U.S. at 135; Mondragon-Santiago, 564 F.3d at 364-65.
      As to Rodriguez-Sanchez’s remaining arguments, the Government
contends that if we reject the safety valve argument, even assuming Rodriguez-
Sanchez’s remaining issues are meritorious, any error must be harmless
because Rodriguez-Sanchez received the statutory minimum sentence. Absent
the application of a statutory exception―a reduction under the safety valve or
for substantial assistance―the district court did not have the authority to
impose a sentence below the statutory minimum. See United States v. Montes,
602 F.3d 381, 390 (5th Cir. 2010).     “An error in calculating the advisory
Guidelines sentencing range in such circumstances is harmless, because the
district court could not have imposed a lower sentence.” United States v.
Victor, 519 F. App’x 306, 307 (5th Cir. 2013); see also United States v. Sandle,
123 F.3d 809, 813 (5th Cir. 1997).         Accordingly, we need not consider
Rodriguez-Sanchez’s remaining arguments because any error was harmless.
      AFFIRMED.




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