                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                             No. 00-40269

                           Summary Calendar



UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,

                                  versus

SAMUEL HERNANDEZ ALEMAN,
                                               Defendant-Appellant.



            Appeal from the United States District Court
                 For the Southern District of Texas
                            (C-99-CR-267)

                           October 30, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant    was    convicted    of   a   single   count   of

possession with intent to distribute cocaine. Because Aleman's

testimony at trial differed from the statement he provided to

officers at the time of his arrest, the Presentence Report (PSR)

recommended a total offense level of 30, which included a two-point

obstruction of justice enhancement.1 At the sentencing hearing, the


     *
      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this opinion should not be published and is not precedent except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.
     1
         See U.S.S.G. § 3C1.1, notes 4(b) & 4(f).
district court heard testimony from Agent Vickers. Agent Vickers

offered uncontroverted testimony that the information provided by

Aleman during a post-trial debriefing with agents was truthful.

     The district court ultimately found an offense level of 28,

imposing imprisonment at the lowest range of that level (i.e., 78

months).    The     record   indicates       that   the    court    rejected   the

application of the obstruction of justice enhancement. However, the

court also refused to apply a two-point reduction under the "safety

valve" provision2 - which would have yielded a total offense level

of 26 - unless Aleman testified under oath that his debriefing was

truthful (at which time, the court stated that it would award an

obstruction of justice enhancement because of the conflict between

this testimony and Aleman's trial testimony). Aleman refused to so

testify, and the court refused to award a "safety valve" reduction.

Aleman    appeals     the    court's   failure      to    apply    this   downward

reduction.3

     The district court's failure to award the reduction is clearly

erroneous.4 Not only is it uncontested that Aleman met the first


     2
         See U.S.S.G. § 5C1.2, 2D1.1(b)(6).
     3
        A defendant may appeal a sentence imposed under the
sentencing guidelines if the sentence "(1) was imposed in violation
of law; (2) was imposed as a result of an incorrect application of
the sentencing guidelines; or (3) is greater than the sentence
specified in the applicable guideline range." 18 U.S.C. § 3742(a)
(2000).
     4
         See United States v. Edwards, 65 F.3d 430, 433 (5th Cir.
1995).

                                         2
four criteria under section 5C1.2, but there is uncontroverted

testimony from the sentencing hearing that the debriefing was

truthful - thereby meeting the fifth and final requirement. The

district court never indicated that it doubted Vicker's testimony.

The "safety valve" reduction is mandatory if the five criteria are

met.5

        The more difficult question in this case is whether the

district court's failure to award the reduction was harmless error.

A finding of harmless error requires specific, convincing evidence

from the record that the district court had a particular sentence

in mind, and would have imposed that sentence notwithstanding the

guideline error.6 In this case, the district court indicated its

general       policy   of    not   applying    an    obstruction    of   justice

enhancement based on a defendant's false trial testimony. However,

it also repeatedly indicated that it would not award the safety

valve reduction and follow its normal policy of not applying the

obstruction of justice enhancement. Moreover, although we may

question the        wisdom   of    the   court's    "either-or"   posture,7   the


        5
            See United States v. Miller, 179 F.3d 961, 963 n.2 (5th Cir.
1999).
        6
            See United States v. Huskey, 137 F.3d 283, 289 (5th Cir.
1998).
        7
       However, had the court applied both the downward reduction
and the obstruction of justice enhancement, the record would
support the latter decision (i.e., because Aleman's trial testimony
arguably met the criteria for perjury). See United States v.
Dunnigan, 507 U.S. 87, 95-96 (1993); United States v. Storm, 36

                                          3
Government has met its burden of proof in establishing harmless

error.8 In fact, the court expressly indicated that an offense

level of 28 would result, even if the court were to apply the

safety valve provision. In light of the preceding, the district

court's judgment is AFFIRMED.

     AFFIRMED.




F.3d 1289, 1295 (5th Cir. 1994). Thus, the court would not need to
hear new testimony from Aleman about the truthfulness of the
debriefing to find obstruction of justice.
     8
         See Huskey, 137 F.3d at 289.

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