     Case: 09-40572     Document: 00511138183          Page: 1    Date Filed: 06/10/2010




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

                                                  FILED
                                                                            June 10, 2010
                                     No. 09-40572
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RICARDO DAVILA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:07-CR-734-2


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Ricardo Davila pleaded guilty to conspiracy to possess with intent to
distribute more than five kilograms of cocaine and was sentenced to 180 months
of imprisonment. 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. He now appeals the
district court’s denial of a two-level minor role adjustment pursuant to U.S.S.G.
§ 3B1.2 and a safety valve adjustment pursuant to U.S.S.G. § 5C1.2. He further
argues that the district court committed procedural error by failing to give



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40572   Document: 00511138183 Page: 2        Date Filed: 06/10/2010
                                No. 09-40572

adequate reasons for the sentence imposed and that his sentence is
substantively unreasonable. For the following reasons, we affirm.
      We review the district court’s finding that Davila was not a minor
participant for clear error. See United States v. Villanueva, 408 F.3d 193, 203-04
& n.9 (5th Cir. 2005).    The record reflects that Davila transported a large
amount of cocaine and agreed to drive the load through a government
checkpoint. Given these facts, we cannot say that the district court’s conclusion
that Davila was not a minor participant was implausible in light of the record
as a whole. See id. at 203; see United States v. Jenkins, 487 F.3d 279, 282 (5th
Cir. 2007).
      We review for clear error the district court’s finding that Davila was not
entitled to a § 5C1.2 safety valve adjustment because he did not truthfully
debrief. See Villanueva, 408 F.3d at 203 n.9; United States v. Miller, 179 F.3d
961, 963-64 (5th Cir. 1999). Contrary to Davila’s argument, the district court’s
conclusion was not based on unsubstantiated assertions. Rather, the district
court heard directly from Davila and concluded that his story was not plausible.
The district court’s credibility determination, which is entitled to great
deference, was not clearly erroneous. United States v. Powers, 168 F.3d 741, 753
(5th Cir. 1999).
      We review for plain error Davila’s claim that the district court provided
inadequate reasons for the sentence imposed.             See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009).   The district court gave specific reasons for the within-guidelines
sentence imposed, referencing the sentencing factors of 18 U.S.C. § 3553(a). The
court’s reasons reflect consideration of appropriate factors, such as the nature
and circumstances of the instant offense, Davila’s history, the need for adequate
deterrence to criminal conduct, and the need to protect the public.           See
§ 3553(a)(1), (2)(B)-(C). Davila has failed to show any error, much less clear or
obvious error, regarding the adequacy of the district court’s reasons. Puckett v.

                                        2
   Case: 09-40572    Document: 00511138183 Page: 3         Date Filed: 06/10/2010
                                 No. 09-40572

United States, 129 S. Ct. 1423, 1429 (2009); Mondragon-Santiago, 564 F.3d at
361-64.
      We review for plain error Davila’s claim that his sentence is substantively
unreasonable because the district court accepted the unsubstantiated assertions
of the Government in determining the applicability of the safety valve provision.
See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). First,
Davila had the burden of proving the facts necessary to support the safety valve
adjustment; however, he failed to carry his burden.          See United States v.
Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996). Second, on appellate review, “[a]
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337,
338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). Davila has failed to rebut this
presumption. He has thus shown no error, plain or otherwise.
      The judgment of the district court is AFFIRMED.




                                         3
