     Case: 13-50922      Document: 00512689957         Page: 1    Date Filed: 07/08/2014




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

                                    No. 13-50922                                 FILED
                                  Summary Calendar                            July 8, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CONG VAN PHAM,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:09-CR-281


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Cong Van Pham pleaded guilty to manufacturing 100 or more marijuana
plants, and he was sentenced to the statutory minimum sentence of 60 months
of imprisonment. In the present appeal, Pham challenges the district court’s
refusal to grant him relief under the safety valve. He argues that the district
court committed legal error by failing to make an independent determination
whether he had truthfully provided the Government with all of the information


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50922

he had regarding his offense.        He maintains that instead of making an
independent determination, the district court deferred to the Government’s
position that he had not truthfully provided all of the information he had about
the offense. He contends that the district court’s deference to the Government’s
position was demonstrated by the district court’s failure to have the case agent
called as a witness at sentencing.
      If a defendant convicted of a drug offense meets the five requirements of
the safety valve provision, the district court may sentence him “without regard
to any statutory minimum sentence.” 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a).
The fifth requirement of the safety valve provision, the only requirement at
issue in the case, requires 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 concerning the offense or offenses
that were part of the same course of conduct or of a common scheme or plan.”
§ 3553(f)(5); § 5C1.2(a)(5). That a defendant does not have any information
about the offense that the Government does not already know “shall not
preclude a determination by the court that the defendant has complied with
this requirement.”   § 3553(f)(5); § 5C1.2(a)(5).   While the Government is
entitled to make a recommendation regarding whether the safety valve should
be applied, the district court makes the final determination. See § 3553(f). A
defendant bears the burden of showing that he is entitled to relief under the
safety valve. United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).
We review the district court’s interpretation of the safety valve provision de
novo, but its determination of whether the defendant has provided full
disclosure is a factual finding reviewed for clear error.     United States v.
Flanagan, 80 F.3d 143, 145 (5th Cir. 1996).




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                                 No. 13-50922

      While the statutory language provides that a district court may find that
a defendant is eligible for safety valve relief despite the inability of the
defendant to provide the Government with information about the offense that
it did not already know, nothing in the statutory language requires the district
court to make an independent determination. See § 3553(f)(5). Nevertheless,
as Pham’s eligibility for safety valve relief, specifically whether he had
truthfully provided the Government with all of the information he had about
the offense, was a disputed issue at sentencing, the district court was required
to make a ruling on the issue. See FED. R. CRIM. P. 32(i)(3)(B).
      At sentencing, the district court did not make an explicit ruling
regarding whether Pham had provided the Government with all of the
information he had concerning the offense and whether Pham was eligible for
relief under the safety valve. Nevertheless, the district court’s comments at
sentencing questioning how Pham could have afforded two houses and
multiple vehicles based upon his reported income and how Pham could have
developed such a sophisticated marijuana growing operation in four months
from 100 marijuana seeds demonstrated an implicit ruling that Pham had not
truthfully provided the Government with all of the information he had about
the offense. Additionally, in the written Statement of Reasons, the district
court adopted the presentence report (PSR) without change, and the PSR
stated that Pham was not eligible for relief under the safety valve because he
had not truthfully provided the Government with all of the information that
he had about the offense. While the Government offered to call its case agent
as a witness at sentencing and the district court did not take the Government
up on that offer, Pham did not seek to call any witnesses or present any
rebuttal evidence at sentencing. Given these circumstances, the district court’s
implicit ruling that Pham was not eligible for safety valve relief because he had



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                                No. 13-50922

not truthfully provided the Government with all of the information he had
about the offense was sufficient. See United States v. Huerta, 182 F.3d 361,
364-65 (5th Cir. 1999).
      Pham repeatedly asserted that he established the grow house in four
months with 100 marijuana seeds he had obtained from a friend.             The
uncontested evidence set forth in the factual basis and PSR, however, showed
that Pham’s grow house was sophisticated and contained 760 marijuana
plants. Additionally, the undisputed information in the PSR indicated that
Pham owned two houses worth a combined total of $325,000 as well as three
vehicles despite reporting a total of approximately $80,000 in income in the
three years prior to his arrest. While Pham asserted at sentencing that he had
obtained rental income from one of the houses and that both he and his wife
worked as nail technicians, this did not explain how Pham and his wife
obtained so many assets while reporting such little income.         Given the
implausible nature of Pham’s explanation of the offense, the district court’s
determination that Pham had not truthfully provided the Government with all
of the information that he had about the offense was not clearly erroneous. See
McCrimmon, 443 F.3d at 457-58.
      AFFIRMED.




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