     Case: 11-50031     Document: 00511672049         Page: 1     Date Filed: 11/21/2011




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

                                                                            FILED
                                                                        November 21, 2011
                                     No. 11-50031
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

VIRGINIA LEE MILLER, also known as Virginia Frye Miller,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CR-46-4


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Virginia Lee Miller appeals the sentence imposed following her guilty plea
conviction of conspiracy to distribute more than 500 grams of methamphetamine
(Count 1), distribution of methamphetamine and aiding and abetting (Count 2),
and distributing methamphetamine from a premises where a minor was present
or residing and aiding and abetting (Count 3). The district court sentenced
Miller to the statutory minimum sentence of 120 months of imprisonment on



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50031     Document: 00511672049     Page: 2   Date Filed: 11/21/2011

                                  No. 11-50031

Count 1 and to 78 months of imprisonment on Count 2 and on Count 3, with all
sentences to run concurrently.
      In two assignments of error, Miller challenges the district court’s rulings
denying her credit for acceptance of responsibility under U.S.S.G. § 3E1.1 and
declining to apply the safety valve provision of U.S.S.G. § 5C1.2 based on the
finding that she did not fully and truthfully admit her conduct in the underlying
offense. She argues that the finding is clearly erroneous because she admitted
all of her offense conduct. She maintains that her denial of knowing about the
existence of a working methamphetamine lab in her shed was entirely plausible
and should not be the basis for denying her acceptance of responsibility or
precluding the application of the safety valve.
      Under the discretionary sentencing system established by United States
v. Booker, 543 U.S. 220 (2005), district courts retain a duty to consider the
Sentencing Guidelines, along with the sentencing factors set forth in 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). This
court reviews the sentence imposed for reasonableness in light of the factors set
forth in § 3553(a). Id. at 519. In Gall v. United States, 552 U.S. 38, 51 (2007),
the Supreme Court established a bifurcated process for conducting a
reasonableness review. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). Pursuant to Gall, this court must determine whether the
district court committed any procedural errors, “such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence
-- including an explanation for any deviation from the Guidelines range.” 552
U.S. at 51. If the district court’s decision is procedurally sound, this court will
“consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard . . . tak[ing] into account the totality of the
circumstances.” Id.

                                        2
     Case: 11-50031   Document: 00511672049     Page: 3    Date Filed: 11/21/2011

                                   No. 11-50031

I.      Procedural Error
A. Acceptance of responsibility
        Deferring to the district court’s unique position to evaluate a defendant’s
acceptance of responsibility, this court examines the denial of a reduction for
acceptance of responsibility “under a standard of review even more deferential
than a pure clearly erroneous standard.” United States v. Outlaw, 319 F.3d 701,
705 (5th Cir. 2003) (internal quotation marks and citation omitted). This court
“will affirm a sentencing court’s decision not to award a reduction under
U.S.S.G. § 3E1.1 unless it is without foundation.” United States v. Solis, 299
F.3d 420, 458 (5th Cir. 2002) (internal quotation marks and citation omitted).
B. Safety valve
        Pursuant to § 5C1.2 and 18 U.S.C. § 3553(f), a defendant who provides
information to the Government may avoid 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). The fifth criterion, the only
one at issue here, requires that by the time of sentencing “the defendant has
truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan . . . .” § 5C1.2(a)(5); see also
§ 3553(f)(5). “[T]he defendant has the burden of ensuring that he has provided
all the information and evidence regarding the offense to the Government. This
he must do no later than at the time of the sentencing hearing regardless
whether the Government requests such information.”               United States v.
Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996).
        The district court’s determination of whether the defendant has provided
full disclosure is a factual finding reviewed for clear error. See Flanagan,
80 F.3d at 145-46; United States v. Edwards, 65 F.3d 430, 433 (5th Cir. 1995).
“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

                                         3
      Case: 11-50031   Document: 00511672049   Page: 4   Date Filed: 11/21/2011

                                   No. 11-50031

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) (internal quotation marks and citation
omitted).
         In this case, the district court heard testimony at sentencing that the
police had a recording made during a controlled methamphetamine buy wherein
Miller told the buyer that the proceeds from the sale were going to be used to
fund an ongoing methamphetamine cook. Later that same day, police located an
active methamphetamine lab in her shed. Nevertheless, Miller consistently
maintained that she did not know about the lab. Given the testimony, the
district court’s determination that Miller did not fully and truthfully admit all
of her conduct in the offense is not without foundation and is plausible. See
Solis, 299 F.3d at 458; Davis, 76 F.3d at 84. Accordingly, the district court’s
finding is affirmed.
II.      Clerical Error
         Finally, the judgment reflects that Miller was convicted in Count 3 of
violating, inter alia, 21 U.S.C. § 860(a). However, Miller was charged with, and
pleaded guilty to, violating 21 U.S.C. § 860a. Accordingly, we instruct the
district court on remand to correct the judgment to reflect that Miller was
convicted of § 860a, rather than § 860(a). See FED. R. CRIM. P. 36.
         AFFIRMED; REMANDED with instructions.




                                        4
