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

                                                                   FILED
                                                                November 25, 2008
                               No. 07-51485
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

DERRICK BUSH, also known as Craig

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 5:05-CR-42-5


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
      Derrick Bush, also known as Craig, was convicted by a jury of conspiracy
to possess with intent to distribute five or more kilograms of cocaine and 1,000
kilograms of marijuana. The district court denied Bush’s request for a safety
valve adjustment pursuant to U.S.S.G. § 5C1.2, but sentenced him to a bottom-
of-the-guidelines sentence of 151 months of imprisonment.
      Bush argues that the evidence presented at trial was insufficient to
support his conspiracy conviction.    Bush also argues that his sentence is

      *
      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should not be published and is not precedent except under the limited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. 07-51485

excessive because the district court failed to grant his request for a safety valve
adjustment and because he should have been charged with no more than 10
kilograms of cocaine.
      Because Bush moved for a judgment of acquittal at the close of the
evidence, we will uphold the jury’s verdict if a reasonable trier of fact could
conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The evidence, both direct and circumstantial, is viewed in the light most
favorable to the jury’s verdict. See United States v. Resio-Trejo, 45 F.3d 907, 910,
911 (5th Cir. 1995). “All credibility determinations and reasonable inferences
are to be resolved in favor of the verdict.” Id.
      To establish that Bush was involved in a drug conspiracy, the Government
was required to prove beyond a reasonable doubt that there was “an agreement
between two or more persons to violate the narcotics laws,” that Bush “knew of
the conspiracy and intended to join it,” and that Bush voluntarily participated
in the conspiracy. United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).
The elements of the conspiracy may be established by circumstantial evidence,
and “[a]n agreement may be inferred from a concert of action.” See United States
v. Fuchs, 467 F.3d 889, 904 (5th Cir. 2006).
      We conclude that the evidence, when viewed in the light most favorable
to the jury’s verdict, supports the finding that Bush knowingly participated in
an agreement, which can reasonably be inferred from the “concert of action” in
this case, to distribute drugs. Accordingly, the jury could have concluded that
the elements of the offense were established beyond a reasonable doubt.
      Although Bush appears to challenge the district court’s denial of his
motion to suppress, he does not address the district court’s findings or its
reasons for denying his motion to suppress, nor does he refer to any evidence
adduced at the suppression hearing. Accordingly, he has failed to adequately



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brief this issue and it is deemed waived. See United States v. Flores, 63 F.3d
1342, 1374 n.36.
      A defendant who provides information to the Government may escape the
imposition of a statutory minimum sentence if the district court finds that he
meets the criteria set forth in § 5C1.2. United States v. Lopez, 264 F.3d 527,
529-30 (5th Cir. 2001). The fifth criterion, the only one at issue here, requires
that “the defendant has truthfully provided to the Government all information
and evidence the defendant has concerning the offense.”            § 5C1.2(a)(5);
§ 3553(f)(5). The defendant has the burden of establishing his eligibility for the
safety valve reduction, including showing that he truthfully provided the
Government with all relevant information. United States v. Flanagan, 80 F.3d
143, 146-47 (5th Cir. 1996). A sentencing court’s factual findings pertaining to
a § 5C1.2 reduction are reviewed for clear error. United States v. Treft, 447 F.3d
421, 426 (5th Cir.), cert. denied, 127 S. Ct. 555 (2006).
      Bush’s conclusory assertion that he is entitled to the safety valve reduction
is insufficient to establish that he provided the Government with truthful
information. He has failed to demonstrate that the district court clearly erred
in denying him the safety valve reduction.
      Finally, Bush’s assertion that his base offense level should have been
based on 10 kilograms of cocaine, not 30 kilograms, is unavailing and
unsupported by the record. Brian Hereford testified that he provided 800
pounds of marijuana and 30 kilograms of cocaine to Ruben Ramirez, who was
procuring cocaine for Bush. Further, two women were arrested with 14.95
kilograms of cocaine that they were going to deliver to Bush. Another woman
also made drug deliveries to Bush, including a delivery for which Bush paid
more than $17,000. Because the court’s finding that the conspiracy involved 30
kilograms of cocaine is plausible in light of the record as a whole, the district




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court’s finding was not clearly erroneous. See Burton v. United States, 237 F.3d
490, 500 (5th Cir. 2000).
      The judgment of the district court is AFFIRMED.




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