     Case: 15-40013      Document: 00513278269         Page: 1    Date Filed: 11/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-40013                                 FILED
                                  Summary Calendar                       November 19, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

ARMANDO BARDALES,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:12-CR-897




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       Armando Bardales appeals his convictions of, and concurrent sentences
for, conspiracy to possess with intent to distribute a 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-40013

possession with intent to distribute a kilogram or more of heroin, and impor-
tation of a kilogram or more of heroin. Although he contends that the district
court erred in excluding expert testimony concerning his diminished mental
capacity, he does not brief the standards that apply in determining whether
the testimony was admissible. Nor does he identify any error in the district
court’s reasons for excluding the testimony―i.e., that expert opinion concerning
ability to form criminal intent is inadmissible under the Federal Rules of Evi-
dence, that the requirements of Daubert v. Merrill Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), were not met, and that the expert failed to produce an
adequate expert report. Accordingly, Bardales has waived the issue. See FED.
R. APP. P. 28(a)(8)(A); United States v. Stalnaker, 571 F.3d 428, 439-40 (5th
Cir. 2009); Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).

      Bardales claims that the district court should have taken into account
his diminished mental capacity in determining that he did not qualify for the
safety valve under U.S.S.G. § 5C1.2. He asserts that his mental condition was
part of his history and characteristics that the district court was required to
consider.

      We review the district court’s application of the guidelines de novo and
its factual findings for clear error. United States v. Harris, 597 F.3d 242, 250
(5th Cir. 2010). The same standard of review is applied to challenges regarding
the statutory safety valve. See United States v. Flanagan, 80 F.3d 143, 145
(5th Cir. 1996). A district court’s decision that a defendant is ineligible for a
safety valve reduction because he did not fully and truthfully debrief is a fac-
tual finding that we review for plain error. See 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. King, 773 F.3d


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48, 52 (5th Cir. 2014), cert. denied, 135 S. Ct. 1865 (2015) (internal quotation
marks and citation omitted).

      Bardales presents no authority for conflating the requirements that the
district court first calculate the correct guidelines range, then consider that
range and the other factors under 18 U.S.C. § 3553(a)―including the defen-
dant’s history and characteristics―in determining the sentence. See Gall v.
United States, 552 U.S. 38, 49-50 & n.6 (2007). While calculating the guideline
range, the court must find the existence of a number of factors before applying
the safety valve, including that “the defendant has truthfully provided to the
Government all information and evidence the defendant has concerning the
offense or offenses.” 18 U.S.C. § 3553(f)(5); § 5C1.2(a)(5).

      The district court considered Bardales’s claim that his mental condition
prevented him from fully debriefing, but the court found that he failed truth-
fully to inform the government about his offenses in that he denied knowledge
of the heroin. Bardales has not shown that the court’s finding of a less-than-
truthful debriefing was implausible in light of the record as a whole. Indeed,
the finding is supported by the jury’s determination that Bardales knowingly
committed the offenses. Therefore, he has not shown that the court clearly
erred in finding that he failed truthfully to debrief, see United States v. Moreno-
Gonzalez, 662 F.3d 369, 375 (5th Cir. 2011), and thus he fails to show that the
court erred in denying the safety valve, see § 5C1.2(a)(5).

      Bardales similarly claims that the court erred by failing to take into
account his diminished mental capacity in deciding that he was not entitled to
the downward adjustment for acceptance of responsibility. Because he did not
raise that argument in the district court, our review is for plain error. See
United States v. Flora-Ochoa, 139 F.3d 1022, 1023 (5th Cir. 1998). To show
plain error, Bardales must show a forfeited error that is clear or obvious and


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                                   No. 15-40013

that affects his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). If he makes such a showing, we have the discretion to correct the
error but should do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.

      Even assuming―purely for the sake of argument―that the district court
erred by failing to consider Bardales’s mental condition in determining
whether to grant the adjustment for acceptance of responsibility, the error did
not affect his substantial rights, because he received the statutory minimum
120-month sentence. See 21 U.S.C. § 841(b)(1)(A)(i); 21 U.S.C. § 960(b)(1)(A).
The district court was unable to sentence him below the statutory minimum in
the absence of a motion by the government for substantial assistance or the
application of the safety valve. See United States v. Krumnow, 476 F.3d 294,
297 (5th Cir. 2007).

      Likewise, to the extent Bardales suggests that the sentence is substan-
tively unreasonable because it does not account for his mental illness, he can-
not show that any error affected his substantial rights, because he received the
statutory minimum. See id. He thus fails to establish plain error. See Puckett,
556 U.S. at 135.

      AFFIRMED.




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