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

                                                FILED
                                                                 October 28, 2009
                                No. 08-11189
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

MARCO ANTONIO MENDOZA-GARCIA, also known as Panchito,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:06-CR-322-6


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
      Marco Antonio Mendoza-Garcia (Mendoza) appeals the sentence imposed
following his conviction for conspiracy to distribute and to possess with the
intent to distribute more than 50 grams of methamphetamine. Mendoza argues
that the district court erred in denying his request for a safety valve adjustment
as set forth in U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). He contends that he
debriefed truthfully and provided all relevant information to the Government.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-11189

Mendoza argues that the district court relied on the Government’s mere
speculation that he had not cooperated fully.
      We review for clear error a district court’s decision to apply the safety
valve provision. United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).
“Under the clearly erroneous standard, [i]f the district court’s account of the
evidence is plausible in light of the record viewed in its entirety the court of
appeals may not reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.” United States v.
Davis, 76 F.3d 82, 84 (5th Cir. 1996) (internal quotation marks and citation
omitted).
      Pursuant to U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), 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 five criteria.
United States v. Lopez, 264 F.3d 527, 529-30 (5th Cir. 2001). The fifth criterion,
the only one at issue here, requires that by the time of sentencing “the defendant
has truthfully provided to the Government all information and evidence the
defendant has concerning the offense.” § 5C1.2(a)(5); see also § 3553(f)(5). The
defendant has the burden of showing eligibility for the safety valve reduction,
including the burden of showing that he truthfully provided the Government
with all relevant information. United States v. Flanagan, 80 F.3d 143, 146-47
(5th Cir. 1996).
      At Mendoza’s sentencing hearing, the DEA agent assigned to his case
testified regarding the information that Mendoza possessed, but failed to
divulge, including the identities of all of his drug suppliers and the identities of
men with whom he met at the home of one of the other conspirators. The agent
further testified that he was not relying on speculation regarding the
information that Mendoza had failed to provide, but on 60 days worth of taped
conversations, surveillance, and the fact that Mendoza, as a mid-level supplier
in the conspiracy, would be in a position to reveal more information about his

                                         2
                                  No. 08-11189

sources. Defense counsel did not call any witnesses at the sentencing hearing.
Based on this testimony, the district court denied application of the safety valve.
A district court’s refusal to apply § 5C1.2 is a factual finding reviewed for clear
error. United States v. Edwards, 65 F.3d 430, 433 (5th Cir. 1995). We perceive
no such error here.
      Mendoza also argues that the district court failed to provide sufficient
reasons for denying a reduction under the safety valve provision. However,
because Mendoza failed to object in the district court, our review is limited to
plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.),
cert. denied, 129 S. Ct. 625 (2008). After hearing testimony from a DEA agent,
the district court stated that Mendoza failed to debrief fully. Under these facts,
we conclude that the district court did not plainly err in stating its reasons.
      The judgment of the district court is AFFIRMED.




                                        3
