                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 22 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10053

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00024-JCM-
                                                 GWF-1
  v.

JESUS MENDEZ,                                    MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                           Submitted December 8, 2010**
                             San Francisco, California

Before: THOMPSON, COWEN, and SILVERMAN, Circuit Judges.***

       Jesus Mendez appeals the 120-month sentence imposed following his guilty

plea to possession with intent to distribute five µilograms or more of cocaine in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
violation of 21 U.S.C. y 841(a)(1) and (b)(1)(A)(ii). We have jurisdiction pursuant

to 28 U.S.C. y 1291 and 18 U.S.C. y 3742.

      Mendez contends the district court erred in denying his motion to suppress.

However, 'it is well-settled that an unconditional guilty plea constitutes a waiver

of the right to appeal all nonjurisdictional antecedent rulings and cures all

antecedent constitutional defects.' United States v. Lopez-Armenta, 400 F.3d 1173,

1175 (9th Cir. 2005). By entering an unconditional guilty plea in this case, Mendez

waived his right to appeal the district court's denial of his motion to suppress. Our

recent en banc decision in United States v. Jacobo Castillo does not mandate a

different conclusion. See 496 F.3d 947, 954 (9th Cir. 2007) (en banc).

Accordingly, we are precluded from reaching the merits of Mendez's suppression

claim, and we DISMISS that part of his appeal.

      Mendez also contends the district court erred when it determined he was not

eligible for safety valve relief under 18 U.S.C. y 3553(f) because he did not satisfy

the fifth factor. We review for clear error the district court's factual determination

that a particular defendant is eligible for relief under the safety valve, and we

review de novo the district court's statutory interpretation of 18 U.S.C. y 3553(f).

United States v. Mejia-Pimental, 477 F.3d 1100, 1103 (9th Cir. 2007).




                                          -2-
      The district court found that Mendez was not cooperative during debriefing,

that he lied, told half-truths, and changed his story, and that he was not otherwise

forthcoming. The district court's factual findings in this regard were sufficient and

not clearly erroneous. See United States v. Shrestha, 86 F.3d 935, 938-40 (9th Cir.

1996) (noting that whether defendant had been completely truthful for purposes of

y 3553(f)(5) was a factual matter). Accordingly, because Mendez failed to meet

his burden of establishing safety valve eligibility, we AFFIRM.

      DISMISSED in part and AFFIRMED in part.




                                          -3-
                                                                                FILED
THOMPSON, Senior Circuit Judge, dissenting in part:                              DEC 22 2010

                                                                             MOLLY C. DWYER, CLERK
      I respectfully dissent from the majority's conclusion that the district .court OF AP PE A LS
                                                                          U.S CO U RT




did not err in denying Mendez safety valve relief.

      This case is governed by our decision in United States v. Mejia-Pimental,

477 F.3d 1100, 1105-08 (9th Cir. 2007), where we made clear that a defendant's

initial lies and delays cannot by themselves maµe him ineligible for relief under 18

U.S.C. y 3553(f), provided that by the time of sentencing, the information he

provides to the government is 'truthful and complete.' Mejia-Pimental, 477 F.3d

at 1106; see also United States v. Shrestha, 86 F.3d 935, 940 (9th Cir. 1996)

(concluding that the defendant was not disqualified from obtaining safety valve

relief where he initially confessed all his µnowledge and involvement, but then

recanted that confession at trial).

      The district court should have determined whether Mendez provided the

government with information that was truthful and complete 'not later than the

time of the sentencing hearing.' 18 U.S.C. y 3553(f)(5). It appears Mendez may

have done just that. Putting aside his initial evasive answers and delays, the record

demonstrates--and the district court appears to have acµnowledged--that by the

time of the sentencing hearing, Mendez had disclosed to the government the true

facts about the instant offense and any related offenses perpetrated by his cousins.
As long as that information was 'complete,' he met his burden under 18 U.S.C. y

3553(f)(5).

      I would vacate the sentence and remand for the district court to maµe factual

findings as to the truthfulness and completeness of the information provided by

Mendez to the government by the time of his sentencing.




                                        -2-
