     Case: 09-30853     Document: 00511215404          Page: 1    Date Filed: 08/26/2010




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

                                                 FILED
                                                                           August 26, 2010
                                     No. 09-30853
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

CARLOS FABIAN GUTIERREZ,

                                                   Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 2:08-CR-111-3


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Carlos Fabian Gutierrez appeals the 120-month statutory minimum
sentence imposed by the district court following his guilty plea conviction of
possession with intent to distribute five kilograms or more of cocaine. Gutierrez
contends that the district court clearly erred in denying a safety valve reduction
under U.S.S.G. § 5C1.2. He argues that he truthfully provided the Government
with all information in his possession regarding the offense. Gutierrez also



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30853     Document: 00511215404 Page: 2         Date Filed: 08/26/2010
                                  No. 09-30853

contends that the district court did not provide an explanation sufficient to
support its denial of the safety valve adjustment.
      We will uphold the district court’s decision whether a defendant qualifies
for the safety valve if it is not clearly erroneous. United States v. McCrimmon,
443 F.3d 454, 457 (5th Cir. 2006). A decision is not clearly erroneous unless it
is not plausible in light of the entire record. See United States v. Davis, 76 F.3d
82, 84 (5th Cir. 1996). We review the district court’s legal interpretation of the
safety-valve standard de novo. United States v. Treft, 447 F.3d 421, 426 (5th Cir.
2006).
      In order to qualify for the safety valve adjustment, a defendant must
satisfy five criteria. The fifth criterion, which is at issue here, 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.” § 5C1.2(a)(5); see also 18 U.S.C. § 3553(f)(5).
The defendant has the burden of showing eligibility for the safety-valve
reduction, including showing that he truthfully provided the Government with
all relevant information. United States v. Flanagan, 80 F.3d 143, 146-47 (5th
Cir. 1996).
      At the sentencing hearing, Gutierrez testified that he had received
direction from Jose Pasillas regarding cocaine trafficking, and he also
maintained that, in his debriefings, he had accurately informed the Government
of Pasillas’s role. A law enforcement agent, however, testified that Gutierrez
had made no mention during his debriefings of receiving direction from anyone.
The district court implicitly credited the law enforcement agent’s testimony in
finding that Gutierrez’s testimony at the sentencing hearing did not comport
with his debriefings and that Gutierrez was not eligible for the safety valve
adjustment, because he had not fully and truthfully debriefed.



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                                No. 09-30853

      The district court’s factual determinations are plausible in light of the
entire record and therefore are not clearly erroneous. See Davis, 76 F.3d at 84.
Further, the factual findings expressed by the district court are sufficient to
support the denial of the safety valve adjustment. See United States v. Miller,
179 F.3d 961, 968-69 (5th Cir. 1999).
      The judgment of the district court is AFFIRMED.




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