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

                                                                            FILED
                                                                          March 31, 2008

                                       No. 07-50435                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

MARIA SERA DE AGUIRRE also known as, Maria M Aguirre also known as,
Magdalena Aguirre

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:06-CR-01992


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Maria Sera De Aguirre pleaded guilty to importing and possessing more
than 50 kilograms of marijuana. At sentencing, she claimed that she was
entitled to a two-level reduction in her offense level because she met the “safety
valve” criterion in USSG § 5C1.2(a). The district denied her the two-level
reduction and sentenced her to 30 months in prison. De Aguirre now appeals,




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50435

contending that the district court misapplied the safety-valve standard. Finding
no error, we AFFIRM.
      1.        We review the district court’s findings of fact pertaining to a safety-
                valve reduction for clear error and the district court’s legal
                interpretation of the safety-valve standard de novo.1 Under USSG
                § 2D1.1(b)(11), a defendant is entitled to a two-level reduction in her
                offense level if she can meet the safety-valve requirements found in
                § 5C1.2. That provision requires “the [district] court [to] find[] that
                the defendant” has met five conditions.2 Only the fifth condition is
                relevant here; it provides:
                       [N]ot later than the time of the sentencing hearing, the
                       defendant [must have] 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, but the fact that the defendant has no relevant or
                       useful other information to provide or that the
                       Government is already aware of the information shall
                       not preclude a determination by the court that the
                       defendant has complied with this requirement.3
                       The rule, by its plain terms, requires “the [district] court [to]
                find[] that the defendant” has “truthfully provided to the
                Government” all relevant information about the offense.4 In other
                words, the district court must find that the defendant has actually
                been truthful.




      1
          United States v. Miller, 179 F.3d 961, 963–64 (5th Cir. 1999).
      2
          USSG § 5C1.2(a).
      3
          Id. § 5C1.2(a)(5).
      4
          Id. § 5C1.2(a).

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                    No. 07-50435

2.   De Aguirre contends that the court below mistakenly thought
     this fifth condition required it to determine only whether the
     government believed she was telling it the truth—not whether
     she was in fact telling the truth. De Aguirre reaches this
     conclusion by focusing on one statement the district court
     made at sentencing: “Motion for continuance is overruled.
     It’s plain to me that the Government does not find her credible,
     so it’s just a waste of time.”      (emphasis added).      This
     statement, however, must be read in context. Just prior to
     this statement, De Aguirre asked the district court for a
     continuance so that she could speak to the government and
     clear up any confusion it might have about what she said. The
     statement, then, was a response to that request. The district
     court was overruling the request for continuance because
     there was no need to give De Aguirre more time to confer with
     the government when the government already did not believe
     her. In other words, the request for continuance would be, in
     the district court’s words, “just a waste of time.”
           After this exchange, the district court asked De Aguirre
     if she had any other objections. She responded that she had
     none. She did not complain to the district court that it was
     not independently determining whether she had been
     truthful. Nor did she ask for an explicit ruling on her request
     for an evidentiary hearing.
           Once the district court’s comment about the government
     not finding De Aguirre credible is put into context, nothing
     else suggests that the district court applied the wrong legal
     standard. Instead, it appears that the district court agreed

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                           No. 07-50435

            with the government’s argument that De Aguirre was not
            being honest when she said she had been collecting
            information on a drug organization for 30 years. The district
            court’s implicit factual finding that De Aguirre did not provide
            truthful information to the government is not clearly
            erroneous.   Accordingly, the district court did not err in
            denying De Aguirre safety-valve relief.
AFFIRMED.




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