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

                                              FILED
                                                                   May 18, 2009
                                 No. 07-31025
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

KIZZIE LAKIA HARDMAN

                                            Defendant-Appellant


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                         USDC No. 2:05-CR-20044-3


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:
      Kizzie Lakia Hardman appeals her jury conviction for conspiracy to
possess with intent to distribute over 50 grams of cocaine base, in violation of 21
U.S.C. §§ 846, 841(a)(1), and (b)(1)(A). Hardman argues that evidence was
insufficient to support her conviction.      Because Hardman preserved her
sufficiency argument, we review to determine if a reasonable trier of fact could
conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
      To establish a drug conspiracy under § 846, the Government must prove
that (1) two or more persons agreed to violate federal narcotics laws, (2) the
                                  No. 07-31025

defendant had knowledge of the conspiracy, and (3) the defendant voluntarily
participated in the conspiracy. United States v. Gonzales, 79 F.3d 413, 423 (5th
Cir. 1996). Proof of the mere presence of the defendant at a scene of criminal
activity and his association with the other defendants is insufficient to support
a criminal conviction. United States v. Paul, 142 F.3d 836, 840 (5th Cir. 1998).
However, a jury may find knowledgeable, voluntary participation from a
defendant’s presence when the presence is such that it would be unreasonable
for anyone other than a knowledgeable participant to be present. Id.
      Our review of the record reveals ample evidence that a conspiracy existed
and that Hardman had knowledge of the conspiracy. The record also contains
evidence that Hardman voluntarily participated in the conspiracy. Thelma
Woodard testified that Hardman told her that she had been selling drugs with
one of the coconspirators, Eddie Sutton, for six years.        Hardman also told
Woodard that she and Sutton were trying to make an additional $100,000 before
they stopped selling drugs. Hardman challenges the credibility of Woodard’s
testimony. This court’s review is concerned only with the sufficiency, not the
weight, of the evidence. The credibility of a witness and the weight of the
evidence is the exclusive province of the jury. United States v. Garcia, 995 F.2d
556, 561 (5th Cir. 1993). Accordingly, our review of the record confirms that the
evidence was sufficient to convict Hardman. See Jackson, 443 U.S. at 319.
      Hardman also argues that the district court erred in denying the safety
valve reduction. After United States v. Booker, 543 U.S. 220 (2005), this court
continues to review the district court’s findings of fact pertaining to a safety
valve reduction for clear error and the district court’s legal interpretation of the
safety valve standard de novo. See United States v. Villanueva, 408 F.3d 193,
203 n.9 (5th Cir. 2005); see also United States v. Miller, 179 F.3d 961, 963-64
(5th Cir. 1999). “Under the clearly erroneous standard, ‘[i]f the district court’s
account of the 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

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sitting as the trier of fact, it would have weighed the evidence differently.’”
United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (citation omitted).
      Pursuant to the safety valve provision of § 5C1.2, a defendant who
provides information to the Government may escape the imposition of a
statutory minimum sentence if he 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 the defendant truthfully provide to the Government all
information   and   evidence   the   defendant has     concerning    the   offense.
§ 5C1.2(a)(5); see also 18 U.S.C. § 3553(f)(5). The defendant has the burden of
establishing 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).
      In this case, the district court made an “independent determination” that
Hardman was not eligible for a reduction under § 5C1.2 because she had not
provided truthful information. United States v. McCrimmon, 443 F.3d 454, 457-
58 (5th Cir. 2006). The district court’s finding is plausible in light of Hardman’s
statements in her post-examination interview.         See Davis, 76 F.3d at 84.
Accordingly, the judgment of the district court is AFFIRMED.




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