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

                                                 FILED
                                                                          February 25, 2009
                                     No. 06-50503
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

HECTOR RAMON GONZALEZ-CANDELARIO

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:03-CR-616-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Hector Ramon Gonzalez-Candelario pleaded guilty to conspiracy to possess
with intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 846, 841(a)(1), (b)(1)(A). At sentencing, Gonzalez-Candelario claimed
that he was entitled to a two-level reduction in his offense level because he met
the safety valve criterion in U.S.S.G. § 5C1.2(a). The district court denied him
the two-level reduction and sentenced him 135 months in prison. Gonzalez-



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 06-50503

Candelario now appeals, arguing that the district court misapplied the safety
valve standard and that his trial counsel rendered ineffective assistance.
Safety Valve
       We review the district court’s findings of fact pertaining to a safety valve
reduction for clear error and the district court’s legal interpretation of the safety
valve standard de novo. See United States v. Villanueva, 408 F.3d 193, 203 n.9
(5th Cir. 2005); see also United States v. Miller, 179 F.3d 961, 963-64 (5th Cir.
1999). “Under the clearly erroneous standard, ‘[i]f the district court’s account of
the evidence is plausible in light of the record viewed in its entirety the court of
appeals may not reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.’” United States v.
Davis, 76 F.3d 82, 84 (5th Cir. 1996)(citation omitted).
       Pursuant to U.S.S.G. § 2D1.1(b)(7)1 , Gonzalez-Candelario would have
received a two-level reduction in his offense level if he satisfied the safety-valve
criteria under § 5C1.2(a), which states that a defendant who provides
information to the Government may escape the imposition of a statutory
minimum sentence if the district court finds that he meets five criteria. United
States v. Lopez, 264 F.3d 527, 529-30 (5th Cir.2001); see also § 3553(f). The fifth
criterion, the only one at issue here, requires that “the defendant has truthfully
provided to the Government all information and evidence the defendant has
concerning the offense.” § 5C1.2(a)(5); see also § 3553(f)(5). The defendant has
the burden of establishing eligibility for the safety valve reduction, including
showing that he truthfully provided the Government with all relevant
information. United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996).
Consistent with § 5C1.2’s directive that the safety valve is applicable if “the
court finds that the defendant meets the criteria,” a district court is required to


       1
         Gonzalez was sentenced pursuant to the 2005 edition of the Sentencing Guidelines.
PSR ¶ 26. In the 2005 edition, § 2D1.1(b)(7) read as follows: “If the defendant meets the
criteria set forth in subdivisions (1)-(5) of subsection (a) of 5C1.2 . . . decrease by 2 levels.”

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make an independent determination whether the criteria have been met. United
States v. McCrimmon, 443 F.3d 454, 457-58 (5th Cir. 2006).
      The record reflects that the parties, during sentencing, presented their
respective arguments regarding whether Gonzalez-Candelario was entitled to
the safety valve reduction. The Government informed the district court that
Gonzalez-Candelario disputed the amount of cocaine that was attributed to him,
that Gonzalez-Candelario refused to debrief, and that Gonzalez-Candelario’s
written statement was insufficient to qualify him for the safety valve departure.
Gonzalez-Candelario countered that his first trial attorney had been ineffective
at explaining what would be expected of Gonzalez-Candelario during the
debriefing. When Gonzalez-Candelario offered to testify regarding his ineffective
assistance claim, the court denied his request, stating “I don’t believe him
anyway.” The district court thereafter denied Gonzalez-Candelario’s request for
the safety valve reduction. The district court’s implicit factual finding that
Gonzalez-Candelario was not entitled to the safety valve reduction is not clearly
erroneous. See Davis, 76 F.3d at 84.
Ineffective Assistance of Counsel
      Gonzalez-Candelario also argues that the district court abused its
discretion when it refused to permit him to introduce evidence at sentencing
regarding his ineffective assistance claim in relation to the safety valve issue.
He also argues that his counsel rendered ineffective assistance.
      This court generally does not resolve claims of ineffective assistance of
counsel on direct appeal because the record is rarely sufficiently developed.
United States v. Haese, 162 F.3d 359, 363 (5th Cir. 1998). “Unless the district
court has developed a record on the defendant’s allegations, [this court] cannot
fairly evaluate the merits of the claim.” United States v. Bounds, 943 F.2d 541,
544 (5th Cir. 1991); United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.
1987). Gonzalez-Candelario’s argument is not reviewable on direct appeal in
this case because the record is not sufficiently developed on the issue. We

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decline to address this claim of ineffective assistance on direct appeal without
prejudice to Gonzalez-Candelario’s right to bring it in a 28 U.S.C. § 2255
proceeding. See United States v. Gulley, 526 F.3d 809, 821 (5th Cir.), cert.
denied, 129 S. Ct. 159 (2008).
      AFFIRMED.




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