                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4579
                        ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                                 Chad Allen Moens,

                      lllllllllllllllllllllDefendant - Appellant.
                                      ____________

                    Appeal from United States District Court
                  for the Southern District of Iowa - Davenport
                                 ____________

                           Submitted: January 10, 2018
                              Filed: June 8, 2018
                                 [Unpublished]
                                ____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________

PER CURIAM.

     In April 2016, Chad Moens pleaded guilty to conspiracy to distribute
methamphetamine, and the district court1 sentenced Moens to 90 months’

      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
imprisonment. Moens appeals his sentence, arguing that the district court made a
procedural error in calculating the advisory sentencing guideline range. We conclude
that Moens forfeited his present argument, and that the district court made no plain
error, so we affirm.

       Moens’s complaint about the guideline calculation concerns his role in the
conspiracy and information about the conspiracy he provided to law enforcement.
Between June 2014 and September 2015, Moens worked with David Bolinger and
others to sell methamphetamine in Davenport, Iowa. After they were arrested, Moens
and Bolinger both provided statements to law enforcement about the conspiracy.
Bolinger claimed that Moens directed him to store and distribute methamphetamine;
Moens denied that he directed Bolinger.

      At sentencing, the government relied on Bolinger’s statement to assert that
Moens played an aggravating role in the conspiracy. The prosecution argued for a
two-level increase to Moens’s offense level under USSG § 3B1.1(c). In a sentencing
memorandum filed before the hearing, Moens objected to the two-level increase and
urged instead that he was eligible for what he called “the two-level safety valve
reduction, pursuant to U.S.S.G. § 5C1.2.” Section 5C1.2, however, provides only that
a defendant who meets certain criteria should be sentenced in accordance with the
applicable sentencing guidelines without regard to any statutory minimum sentence.
On appeal, Moens suggests that his sentencing memorandum actually referred to a
two-level decrease under USSG § 2D1.1(b)(17). That two-level decrease applies to
defendants in drug trafficking cases who meet the criteria under § 5C1.2.

       At the sentencing hearing, the parties disputed whether Moens should receive
a two-level increase for an aggravating role in the offense. Moens argued that he and
Bolinger made conflicting statements, and that “[a]t best what the government is
trying to manufacture is a tie” on the question of aggravating role. The district court
ruled in favor of Moens and declined to apply the two-level increase under

                                         -2-
§ 3B1.1(c). Moens never raised the issue of a two-level decrease under
§ 2D1.1(b)(17), and the district court did not address it. The court determined a total
offense level of 31, a criminal history category of I, and a guideline range of 108 to
135 months’ imprisonment. The court then varied downward from the guidelines
based on the factors set forth in 18 U.S.C. § 3553(a) and imposed a sentence of 90
months’ imprisonment.

       Moens argues that the district court erred because it did not apply the two-level
decrease under § 2D1.1(b)(17). The presentence report did not recommend the
decrease, and the government maintains that Moens waived the argument when he
stated his position at the hearing as follows: “The only objections that are still
remaining, Your Honor, are the issues that pertain to a two-level enhancement for role
in the offense. Every other issue has been resolved with the exception of the variance
issues that I am bringing forth.”

       It is a stretch to say that Moens’s entitlement to a decrease under
§ 2D1.1(b)(17) is among the “issues that pertain to a two-level enhancement for role
in the offense.” Moens’s role in the offense is one criterion under § 5C1.2, but there
are four other criteria, and counsel’s statement surely did not alert the district court
to a remaining dispute under § 2D1.1(b)(17). The sentencing memorandum,
moreover, referred only to § 5C1.2 and did not mention § 2D1.1(b)(17). Assuming
for the sake of analysis that counsel’s statement at the hearing did not intentionally
relinquish (i.e., waive) any right to a two-level decrease, Moens forfeited the issue by
failing to raise it adequately. At most, his contention is eligible for review under the
plain-error standard. See United States v. Olano, 507 U.S. 725, 731-32 (1993).

       To receive a two-level decrease under § 2D1.1(b)(17), the defendant bears the
burden to prove that he meets the five criteria under § 5C1.2. The fifth criterion is
that “not later than the time of the sentencing hearing, the defendant has truthfully
provided to the Government all information and evidence the defendant has

                                          -3-
concerning the offense or offenses that were part of the same course of conduct or of
a common scheme or plan.” The government contends that Moens did not satisfy this
requirement.

        The district court did not commit plain error by failing to declare sua sponte
that Moens satisfied the fifth criterion and deserved a two-level decrease. The court
was presented with conflicting statements from Moens and Bolinger about Moens’s
role in the conspiracy. To show that he truthfully provided all information about the
offense, Moens had to establish that he was truthful and that Bolinger was not. But
the answer to that credibility question is not obvious, and Moens himself suggested
that the conflicting statements merely manufactured a “tie.” Having failed to press
the issue at the hearing, Moens can prevail only if the record is so clear that the
district court obviously erred by failing to award the two-level decrease on its own
initiative. The record, however, establishes that his entitlement to the adjustment was
at least subject to reasonable debate, so the appeal is without merit.

      The judgment of the district court is affirmed.
                     ______________________________




                                         -4-
