                                                                              FILED
                             NOT FOR PUBLICATION                               JUN 10 2014

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                          No. 13-50006

               Plaintiff - Appellee,               D.C. No. 3:11-cr-03203-AJB-2

  v.
                                                   MEMORANDUM*
CAROLINA MCLEAN,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Anthony J. Battaglia, District Judge, Presiding

                         Argued and Submitted May 15, 2014
                                Pasadena, California

Before:       KOZINSKI, Chief Judge, WARDLAW and FISHER, Circuit
              Judges.

       At oral argument, Appellant’s counsel waived McLean’s claim that the trial

court improperly admitted Chase deposit receipts into evidence. See Vinson v.

Thomas, 288 F.3d 1145, 1148 n.1 (9th Cir. 2002). Appellant’s remaining claim

that the sentencing court failed to apply the rule of lenity in assessing her eligibility



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                 page 2
for safety valve relief under 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5)

misapprehends that rule. The rule of lenity is a “principle of statutory

construction” designed to ensure that “‘the Court will not interpret a federal

criminal statute so as to increase the penalty that it places on an individual when

such an interpretation can be based on no more than a guess as to what Congress

intended.’” Bifulco v. United States, 447 U.S. 381, 387 (1980) (quoting Ladner v.

United States, 358 U.S. 169, 178 (1958)). The Supreme Court “has emphasized

that the ‘touchstone’ of the rule of lenity ‘is statutory ambiguity.’” Id. (quoting

Lewis v. United States, 445 U.S. 55, 65 (1980)).

      Appellant doesn’t argue that the statutory or Guidelines language defining

eligibility for safety valve relief is ambiguous. Instead, she claims that there were

ambiguities in the evidentiary materials presented to the sentencing court, and that

the court should have resolved these ambiguities in her favor. There is no such

constraint on the sentencing judge’s fact-finding. Cf. United States v. Freter, 31

F.3d 783, 786 n.3 (9th Cir. 1994). The judge “d[idn’t] find Ms. McLean’s

explanation post trial any more credible than what she said at trial.” This finding

was not clearly erroneous. See United States v. Orm Hieng, 679 F.3d 1131, 1144

(9th Cir. 2012).

      AFFIRMED.
