     Case: 13-40745      Document: 00512729596         Page: 1    Date Filed: 08/11/2014




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

                                                                                      FILED
                                                                                  August 11, 2014
                                    No. 13-40745                                   Lyle W. Cayce
                                  Summary Calendar                                      Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

AGUSTIN ELOY PINEDA-BARRIENTOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-2006-2


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Agustin Eloy Pineda-Barrientos (Pineda) was convicted, pursuant to his
guilty plea, of conspiring to possess with intent to distribute 100 kilograms or
more of marijuana. The district court denied Pineda’s request for a safety valve
adjustment after determining, based on its review of a videotape, that Pineda
had been aware that a third person had been present as marijuana bundles
were being moved, a fact Pineda had not admitted when debriefed. Pineda was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40745

sentenced to a 60-month term of imprisonment, which was the statutory
minimum. See 21 U.S.C. § 841(b)(1)(B).
      According to Pineda, the district court reversibly erred by failing to
depart below the statutory minimum.             He argues that the Government’s
refusal to move for a downward departure was not rationally related to any
legitimate government end. Because this argument is raised for the first time
on appeal, plain error review applies.          See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). For Pineda to prevail on plain
error review, the error must be clear or obvious and affect substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If these requirements
are met, this court has the discretion to correct the error, but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
      Absent a contrary agreement, which does not exist in the instant case,
the decision whether to file a U.S.S.G. § 5K1.1 motion based on a defendant’s
substantial assistance is discretionary. Wade v. United States, 504 U.S. 181,
185 (1992). When the Government retains discretion to file a motion for a
downward     departure,    its   refusal   to   do   so   is   reviewable   only   for
“unconstitutional motives.” United States v. Aderholt, 87 F.3d 740, 742 (5th
Cir. 1996). An “unconstitutional motive” exists if a prosecutor refused to file a
§ 5K1.1 motion “because of the defendant’s race or religion” or for any other
reason “not rationally related to any legitimate Government end.” Wade, 504
U.S. at 185-86.      Under this standard, a defendant must show that the
Government’s decision was “based on his membership in an identified group,
or on some specified characteristic, that the government has no possibly
legitimate grounds for treating in a discriminatory manner.” United States v.
Urbani, 967 F.2d 106, 110 (5th Cir. 1992).




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                                 No. 13-40745

      Pineda asserts that the Government’s decision not to move for a
downward departure was improper as the existence of a third person was not
conclusively established and because the district court’s findings and
conclusions did not establish that he was untruthful or that a third person
existed. He argues that the Government failed to specifically set forth the
information it was seeking from him and therefore improperly denied him a
downward departure for substantial assistance.
      The above contentions fail to make the required showing of an
“unconstitutional motive.” See Wade, 504 U.S. at 186; Urbani, 967 F.2d at 110.
Indeed, in his reply brief, Pineda admits that race and religion did not play a
role in his sentencing. Pineda has not demonstrated plain error. See Puckett,
556 U.S. at 135.
      To the extent that Pineda contends that he was entitled to a safety valve
adjustment under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, which was the
argument he raised in the district court, he fails to show reversible error. “The
plain language of the statutes and guidelines requires that [the defendant]
truthfully provide all information and evidence regarding the offense to be
eligible for the [safety valve] reduction.” United States v. Moreno-Gonzalez,
662 F.3d 369, 375 (5th Cir. 2011). As noted above, based on its review of the
videotape, the district court determined that, in refusing to admit that he was
aware of the presence of a third person, Pineda had failed to truthfully debrief.
Pineda makes no attempt to rebut this finding, and thus has not demonstrated
that the district court clearly erred in denying the safety valve adjustment.
See United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).
      AFFIRMED.




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