     Case: 11-51191       Document: 00512113855         Page: 1     Date Filed: 01/15/2013




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

                                                                            FILED
                                                                         January 15, 2013
                                     No. 11-51191
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROBERTO MIRELES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:11-CR-210-2


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Roberto Mireles appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute and to distribute
five kilograms or more of cocaine. He argues that the district court erred in
imposing a leadership sentencing enhancement pursuant to U.S.S.G. § 3B1.1(c).
       The facts set forth in the Presentence Report (PSR) reflect that Mireles
recruited his codefendant, Ernesto Fierro, and gave him instructions concerning
obtaining the cocaine from two unknown persons and delivering it to a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-51191     Document: 00512113855      Page: 2   Date Filed: 01/15/2013

                                  No. 11-51191

confidential informant. Although Mireles identified a witness who he stated
could corroborate his allegation that Fierro was the actual leader or organizer
of the conspiracy, the Government interviewed the witness and determined that
the witness was not credible. Because Mireles did not present any evidence to
rebut the facts in the PSR, the district court was entitled to rely on those facts.
See United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). Those facts
support the district court’s finding that Mireles acted as a leader or organizer.
See United States v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005); United States
v. Giraldo, 111 F.3d 21, 24-25 (5th Cir. 1997).
      Mireles argues that the district court erred in not considering his
statement for purposes of awarding a safety valve adjustment under U.S.S.G.
§ 5C1.2. At sentencing, the Government stated that Mireles had not been
truthful in his debriefing; that he attempted to minimize his role in the offense
by alleging that Fierro was the actual leader or organizer; and that the
information in Mireles’s statement was not fruitful. Thus, the record supports
the district court’s determination that Mireles was not entitled to the safety
valve adjustment because he was not truthful with the Government in his
debriefing and because the district court determined that he was a leader or
organizer in the conspiracy. Therefore, Mireles did not meet his burden to
establish that he was entitled to the safety valve adjustment. See United States
v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).
      AFFRIMED.




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