     Case: 18-40607      Document: 00514926940         Page: 1    Date Filed: 04/23/2019




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

                                                                                FILED
                                    No. 18-40607                            April 23, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODOLFO CANTU, JR., also known as Lil Rudy,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-644-1


Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Rodolfo Cantu, Jr., appeals the sentence imposed after he pleaded guilty
to possession with intent to distribute 22.02 grams of methamphetamine. He
challenges the two-level enhancement under U.S.S.G. § 2D1.1(b)(2) for making
a credible threat to use violence, which disqualified him from being eligible for
the safety valve reduction. Cantu argues that the district court erred by
enhancing his base offense level pursuant to § 2D1.1(b)(2) because the facts in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40607

the presentence report (PSR) were vague and did not support a finding of a
credible threat of violence.
      We review for clear error the district court’s factual finding that Cantu
made a credible threat to use violence. See United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). “A factual finding is not clearly erroneous
as long as it is plausible in light of the record as a whole.” United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (internal quotation marks and
citation omitted). We also review for clear error the district court’s reasonable
inferences from the facts. See United States v. Caldwell, 448 F.3d 287, 290 (5th
Cir. 2006). The sentencing court was allowed to rely on the facts recounted in
the presentence report (PSR) unless Cantu demonstrated by competent
rebuttal evidence that the information is “materially untrue, inaccurate or
unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal
quotation marks and citation omitted).
      As stated in the PSR, Cantu, a member of the Texas Mexikan Mafia
(TMM), told two arresting officers that he and the other members of the TMM
knew personal information about them. He also told one officer that he should
conceal his face while executing warrants and questioned why the officer
continued to work in law enforcement given what the TMM knew about him.
Cantu made no attempt to demonstrate by competent rebuttal evidence that
the information was materially untrue. See id. at 230. Based on the evidence,
the district court reasonably inferred that Cantu’s statements to the police
officers constituted a credible threat to use violence. See Caldwell, 448 F.3d at
290. Accordingly, the district court’s finding that Cantu made a credible threat
to use violence was “plausible in light of the record as a whole.” Betancourt,
422 F.3d at 246 (internal quotation marks and citations omitted). Because a
defendant qualifies for the safety valve if he, among other things, did not use



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                                  No. 18-40607

credible threats of violence, the district court did not clearly err in determining
that Cantu failed to qualify for a safety valve adjustment. See 18 U.S.C.
§ 3553(f); U.S.S.G. § 5C1.2; Cisneros-Gutierrez, 517 F.3d at 764. Accordingly,
the judgment of the district court is AFFIRMED.




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