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

                                                                            FILED
                                                                         February 27, 2008

                                     No. 07-40405                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JUAN MANUEL ZAMUDIO

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 7:06-CR-942-ALL


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juan Manuel Zamudio appeals his sentence for conspiracy to possess with
intent to distribute more than 100 kilograms of marijuana, in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). Zamudio contends the district court
improperly refused to award him a “safety-valve” reduction pursuant to U.S.S.G.
§ 5C1.2. We disagree and AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40405

                                         I.
      If a defendant meets the five criteria of the safety-valve provision, a
sentencing court must reference its sentence to the Sentencing Guidelines
without regard to any statutory minimum sentence. See U.S.S.G. § 5C1.2(a)(1)-
(5); 18 U.S.C. § 3553(f). The second of these criteria, and the only one at issue
in this case, requires that “the defendant did not use violence or credible threats
of violence . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2) (emphasis
added).
      The relevant conduct is undisputed. On October 8, 2006, a Border Patrol
agent, responding to suspicious behavior, attempted to stop Zamudio’s car. In
the course of attempting to avoid the traffic stop, Zamudio lost control of his car.
Zamudio’s car came to rest facing the Border Patrol agent’s patrol car. After the
agent parked his car in front of Zamudio’s car and began to exit his car, Zamudio
accelerated his car and hit the front of the agent’s car at a rate of speed of
approximately five to ten miles per hour. Then, after hitting the agent’s car,
Zamudio again attempted to flee, but he was unable to flee as his car’s tires had
lost traction. Zamudio did not further attempt to resist arrest.
      After taking testimony, including from the agent, the district court
concluded that Zamudio’s conduct was both violent and a credible threat of
violence. The district court thus refused to award Zamudio the safety valve
reduction. Zamudio timely appealed.
                                        II.
      Zamudio argues that the district court erred in determining that he used
violence in connection with his offense. He argues that § 5C1.2(a)(2)’s reference
to “use violence” requires the intentional use of violent or destructive physical
force. Zamudio further contends that there is no evidence that he intentionally




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used violent or destructive physical force when he “bumped” the agent’s car at
a low rate of speed in an attempt to flee.1
       The Government responds that the district court did not clearly err in
finding that Zamudio’s conduct was both violent and constituted a credible
threat of violence.
       We stress that a court’s refusal to apply § 5C1.2 is a factual finding that
is reviewed for clear error. United States v. Edwards, 65 F.3d 430, 433 (5th Cir.
1993). A finding is clearly erroneous only if, based on its review of the record,
this court is “left with a definite and firm conviction that a mistake has been
committed.” United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001) (internal
quotation marks and citation omitted). As long as the finding is plausible in
light of the entire record, it cannot be clearly erroneous. Id.
       Neither § 5C1.2 nor the accompanying commentary defines “violence” or
“credible threats of violence.” This case, however, does not require definitions
of these common terms for the purpose of determining the issue here: whether
the district court’s finding of fact was clear error. Certainly, it is entirely
plausible, even under the definition offered by Zamudio, that Zamudio’s striking
of the agent’s car with his car was violent and/or constituted a credible threat of
violence, especially as the agent was attempting to exit his vehicle at the time
Zamudio ran his car into the agent’s vehicle.




       1
          Zamudio also argues that the district court’s determination that the evidence was
insufficient to justify a two-level reckless-endangerment enhancement pursuant to U.S.S.G.
§ 3C1.2 indicates the absence of any use of violence or credible threats of violence. This
argument is without merit. To support the two-level enhancement under that provision, the
Government must show that “the defendant recklessly created a substantial risk of death or
serious bodily injury to another person in the course of fleeing from a law enforcement officer.”
U.S.S.G. § 3C1.2. That the impact here was insufficient to create a substantial risk of death
or serious bodily injury is not determinative of whether Zamudio’s conduct was violent or
constitued a credible threat of violence.

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                               No. 07-40405

                                    III.
     The district court did not clearly err by refusing to award Zamudio the
safety valve reduction. AFFIRMED.




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