     Case: 17-10804      Document: 00514556770         Page: 1    Date Filed: 07/16/2018




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

                                                                                 FILED
                                      No. 17-10804                           July 16, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellee

v.

JOSE EMMANUEL MORALES RITTINGGER,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:16-CR-53-2


Before KING, SOUTHWICK, and HO, Circuit Judges.
PER CURIAM:*
       Defendant Jose Emmanuel Morales Rittingger was riding in a car that
was pulled over on August 15, 2016, in Potter County, Texas. The trooper
requested to search the vehicle and the driver, Joel Merida, consented. A
subsequent search of the vehicle revealed over 44 pounds of heroin. Rittingger
later pled guilty to count one of the superseding indictment, which charged
him with possession with intent to distribute one kilogram or more of heroin


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10804     Document: 00514556770      Page: 2   Date Filed: 07/16/2018



                                  No. 17-10804
and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(i) and
18 U.S.C. § 2. The district court later sentenced Rittingger to 121 months in
prison.
      Rittingger appeals the district court’s denial of a mitigating-role
adjustment under U.S. Sentencing Guidelines § 3B1.2, as well as the district
court’s denial of safety-valve relief under U.S. Sentencing Guidelines § 5C1.2.
The district court’s factual findings in each instance are reviewed for clear
error. United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013); United
States v. McElwee, 646 F.3d 328, 345 (5th Cir. 2011). “A factual finding is not
clearly erroneous if it is plausible, considering the record as a whole.” United
States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010) (citing United States v. Scher,
601 F.3d 408, 413 (5th Cir. 2010)).
      A mitigating-role adjustment under the U.S. Sentencing Guidelines is
only appropriate, under this Court’s precedents, if a defendant is “peripheral”
to the advancement of an underlying conspiracy. See United States v. Porter,
721 F.App’x 377 (5th Cir. 2018); accord United States v. Castro, 843 F.3d 608
(5th Cir. 2016). Here, the district court did not clearly err in determining,
based on the record before it, that Rittingger did not act “peripheral[ly]” as part
of the broader drug conspiracy. On the contrary, Rittingger was a key asset to
the drug trafficking ring—he confirmed to federal agents that the drug cartel
approached him in Mexico, directed him to pick up the car in New Mexico, and
directed him to transport the large quantity of heroin to Chicago. Rittingger
and Merida were necessary cogs of the drug conspiracy.
      The district court similarly did not clearly err in denying safety-valve
relief. Under U.S. Sentencing Guidelines § 2D1.1(b)(17), a defendant is eligible
for safety-valve relief if he satisfies five criteria set forth in U.S. Sentencing
Guidelines § 5C1.2.      U.S. Sentencing Guidelines § 5C1.2(a)(5), the only
criterion relevant to this case, provides that, “not later than the time of the
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                                No. 17-10804
sentencing hearing, 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 . . . .” U.S.S.G. § 5C1.2(a)(5). But here, an Assistant U.S. Attorney
testified that Rittingger was not credible or honest during a suppression
hearing, and Rittingger makes no attempt to meaningfully rebut the Assistant
U.S. Attorney’s testimony.    There is also a plethora of barely contested
additional evidence of Rittingger frequently changing his story to federal
agents. Accordingly, the district court did not clearly err in denying safety-
valve relief.
      The judgment of the district court is AFFIRMED.




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