     Case: 11-10092        Document: 00511759993             Page: 1      Date Filed: 02/15/2012




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

                                                                                      FILED
                                                                                   February 15, 2012

                                            No. 11-10092                             Lyle W. Cayce
                                                                                          Clerk

UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee
v.

ROLANDO VAZQUEZ,

                                                         Defendant - Appellant.



                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 4:10-CR-142-1


Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        Rolando Vazquez appeals his below-Guidelines sentence and specifically
challenges the district court’s failure to apply an offense level reduction under
United States Sentencing Guidelines Manual §§ 2D1.1(b)(16) and 5C1.2. We
AFFIRM.
                                                    I.
        Vazquez pleaded guilty to a one-count indictment charging him with
possession of more than fifty grams of methamphetamine with intent to


        *
          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 R. 47.5, the court has determined that this opinion should not be published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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distribute in violation of 21 U.S.C. § 841(b)(1)(B). Law enforcement officers
learned of Vazquez while investigating a broader drug trafficking organization.
Vazquez agreed to speak with officers regarding his criminal activities twice:
upon his arrest and again later. After his second interview, Vazquez declined
requests from law enforcement for additional interviews.
       Vazquez’s Pre-Sentence Report (“PSR”) assigned him a total offense level
of 39. The PSR did not include a two-level reduction under section 2D1.1(b)(16),
which applies in a drug case if the defendant meets the criteria set forth in
section 5C1.2(a)(1)-(5) for application of the “safety valve.”1 Vazquez objected to
the PSR’s failure to include the reduction. The Probation Officer agreed that
Vazquez had met the first four safety valve requirements but disputed whether
he had met the fifth requirement, namely, that he truthfully provided to law
enforcement all information he possessed concerning the offense. The PSR
indicated that because Vazquez declined to be interviewed following his


       1
         U.S. Sentencing Guidelines Manual § 2D1.1(b)(16) provides a two-level “safety-valve”
reduction for defendants who meet the five criteria listed in section 5C1.2(a):
        (1)     the defendant does not have more than 1 criminal history point, as determined
                under the sentencing guidelines before application of subsection (b) of §4A1.3
                (Departures Based on Inadequacy of Criminal History Category);

       (2)     the defendant did not use violence or credible threats of violence or possess a
               firearm or other dangerous weapon (or induce another participant to do so) in
               connection with the offense;

       (3)     the offense did not result in death or serious bodily injury to any person;

       (4)     the defendant was not an organizer, leader, manager, or supervisor of others in
               the offense, as determined under the sentencing guidelines and was not engaged
               in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and

       (5)     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, but the fact that the defendant has no relevant or
               useful other information to provide or that the Government is already aware of
               the information shall not preclude a determination by the court that the defendant
               has complied with this requirement.
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indictment, he was not entitled to the reduction.
      At his sentencing hearing, Vazquez pursued his objection. In response to
the court’s observation that Vazquez declined requests for additional interviews,
Vazquez argued that he had “provided all the information he has about the
offense, and there’s nothing in the presentence report that shows he didn’t.”
Vazquez also called Drug Enforcement Agency Task Force Officer Mott as a
witness.   Task Force Officer Mott testified that he was unaware of any
information Vazquez possessed that he had not provided to officers. The district
court then launched into its own series of questions at the sentencing hearing
sua sponte. It asked: “You don’t know what information that he might have had
that he didn’t disclose about the offense or related offenses or relevant conduct
offenses?” Task Force Officer Mott answered no. The court pointed out that
“[t]here’s no way for you to know that?” Task Force Officer Mott agreed but
added: “I don’t know of anything else.”
      The district court then overruled the objection, concluding as follows:
      I cannot find that your client has, prior to this day, provided the
      Government all information and evidence he has concerning the
      offense or the offenses that were part of the same course of conduct.
      The fact that the case agent for the Government can’t say one way
      or the other certainly is not proof that he did, so I’ll overrule that
      objection.

Having overruled Vazquez’s objection to the failure to apply the two-level safety
valve reduction, the district court found a total offense level of 39. Vazquez had
no criminal history, therefore his criminal history category was I, bringing his
Guidelines range to 262)327 months imprisonment.
      Vazquez moved for a downward variance from the Guidelines range to 120
months. The district court departed downward but not as far as Vazquez
requested, sentencing him to 200 months imprisonment followed by a five-year
term of supervised release. Vazquez objected to the sentence as procedurally
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and substantively unreasonable. This appeal followed.
                                        II.
      Vazquez’s sole argument on appeal is that the district court reversibly
erred by finding that he did not satisfy the fifth safety valve factor, which
required him to truthfully provide the government with all the information and
evidence he had concerning the offense or offenses that were part of the same
course of conduct or common scheme or plan as the one of which he was
convicted.   We review a district court’s interpretation of the Sentencing
Guidelines de novo. United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010).
We review the sentencing court’s findings of fact and its application of the safety
valve provision for clear error. United States v. Lyckman, 235 F.3d 234, 237 (5th
Cir. 2000). “Under the clearly erroneous standard, if the district court’s account
of evidence is plausible in light of [the] record viewed in its entirety, the Court
of Appeals may not reverse it even though convinced that had it been sitting as
trier of fact, it would have weighed the evidence differently.” Burton v. United
States, 237 F.3d 490, 500 (5th Cir. 2000) (citing United States v. Davis, 76 F.3d
82, 84 (5th Cir. 1996)). “Furthermore, a district court may adopt facts contained
in a PSR without further inquiry if the facts have an adequate evidentiary basis
and the defendant does not present rebuttal evidence.” United States v. Lopez-
Urbina, 434 F.3d 750, 767 (5th Cir. 2005) (citing United States v. Cooper, 274
F.3d 230, 239 (5th Cir. 2001)). We conclude that the district court did not clearly
err in its application of the safety valve provision.
      Vazquez argues that the district court interpreted section 2D1.1(b)(16)
incorrectly to require him to prove that there was no possibility that he had
withheld information. The party that seeks to adjust the sentence “has the
burden of proving the facts to support the adjustment.” United States v.
Flanagan, 80 F.3d 143, 146 (5th Cir. 1996) (citing United States v. Ayala, 47
F.3d 688, 690 (5th Cir. 1995)).       Sentencing facts must be proven by a
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preponderance of the evidence. United States v. Partida, 385 F.3d 546, 565 (5th
Cir. 2004) (“Under the Sentencing Guidelines, a district court’s operative fact
finding is generally subject only to a preponderance of the evidence standard.”).
Thus, to avail himself of the two-level safety valve reduction, Vazquez had to
prove by a preponderance of the evidence that by the time of the sentencing
hearing, he had “truthfully provided to the Government all information and
evidence [he had] 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).
      Vazquez points out that he agreed to more than one interview with law
enforcement and in each interview willingly divulged an extensive amount of
information going beyond merely confessing the criminal conduct that resulted
in his arrest. He also explains that officers point to no information he provided
that was false or misleading. Finally, he points to Task Force Officer Mott’s
testimony at his sentencing hearing that he did not “know of anything else” that
Vazquez knew but had not disclosed.        He concludes that he proved by a
preponderance of the evidence that he had provided all information and evidence
he had concerning the offense or offenses that were part of the same course of
conduct or of a common scheme of plan to the one of which he was convicted.
      The government responds that after the two interviews Vazquez discusses,
he refused further interviews. According to the government, if it had been able
to interview Vazquez further, it would have asked him additional questions
about the criminal enterprise. The government argues that because Vazquez
declined further interviews, it never had the chance to answer those questions,
and thus Vazquez managed to withhold relevant information from the
government.
      The PSR contradicts Vazquez’s argument that he answered all of the
officers’ questions and supports the government’s argument that it wished to ask
him further questions about the criminal enterprise.      Moreover, Task Force
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Officer Mott merely testified that he was not aware of any information that
Vazquez withheld. Given that more than one officer interviewed Vazquez, Task
Force Officer Mott’s testimony does not contradict the PSR’s indication that
Vazquez refused to answer several questions. Vazquez’s decision to decline
further interviews reinforces the inference that he withheld information.
Therefore, the district court did not clearly err in finding that Vazquez failed to
prove by a preponderance of the evidence that he provided all information and
evidence he had to the government. We AFFIRM.
