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

                                                 FILED
                                                                            June 29, 2009
                                     No. 08-40649
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

SONIA CASTILLO

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:07-CR-1217-3


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Sonia Castillo was tried by a jury and found guilty of possession with the
intent to distribute marijuana and conspiracy to do the same.                      Castillo’s
presentence report (PSR) did not recommend a sentencing reduction under the
safety valve provision of the Sentencing Guidelines. Castillo objected to the PSR
on this ground. At sentencing, the district court denied safety valve relief.
       Castillo now argues that the district court erred by failing to give her a
safety valve reduction or an evidentiary hearing to determine whether such 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                    No. 08-40649

reduction was warranted. We review for clear error a district court’s decision to
apply the safety valve provision. United States v. McCrimmon, 443 F.3d 454,
457 (5th Cir. 2006).
      Pursuant to U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), a defendant who
provides information to the Government may escape the imposition of a
statutory minimum sentence if the district court finds that she meets five
criteria. United States v. Lopez, 264 F.3d 527, 529-30 (5th Cir. 2001). The fifth
criterion, the only one at issue here, requires that by the time of sentencing “the
defendant has truthfully provided to the Government all information and
evidence the defendant has concerning the offense.” § 5C1.2(a)(5); see also
§ 3553(f)(5). The defendant has the burden of showing eligibility for the safety
valve reduction, including the burden of showing that she truthfully provided
the Government with all relevant information. United States v. Flanagan, 80
F.3d 143, 146-47 (5th Cir. 1996).
      In the district court’s statement of reasons, it indicated that it adopted the
PSR. An addendum to the PSR concluded that the safety valve did not apply
because Castillo denied knowing at the time of the offense that the offense
involved transporting marijuana rather than illegal aliens.
      Castillo’s testimony that she did not know that the offense involved
marijuana “directly contradicted information gathered by the government,”
including the testimony of a codefendant and a confidential informant. See
United States v. Edwards, 65 F.3d 430, 433 (5th Cir. 1995). At trial, Castillo
admitted to lying to agents the first time she was questioned but testified that
she was truthful with them the second time she was questioned. See id. Castillo
was hesitant on the stand to admit knowing one of the participants in the
offense, and she admitted that she did not inform agents of two other involved
individuals. Based on these facts, the district court’s denial of Castillo’s request
to be sentenced under the safety valve was not clearly erroneous.



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                                   No. 08-40649

      Castillo did not request an evidentiary hearing in the district court or
object to the lack of one. Accordingly, Castillo’s contention that the district court
erred by not holding an evidentiary hearing on the safety valve issue is reviewed
for plain error. See United States Washington, 480 F.3d 309, 313 (5th Cir. 2007).
The cases cited by Castillo do not advance her position that an evidentiary
hearing was required. Because Castillo has not shown that the failure to hold
an evidentiary hearing was clear or obvious error that affected her substantial
rights, Castillo has not shown plain error with respect to this issue. See United
States v. Olano, 507 U.S. 725, 732-34 (1993).
      AFFIRMED.




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