     Case: 16-11090       Document: 00513949738         Page: 1     Date Filed: 04/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                     No. 16-11090                                FILED
                                   Summary Calendar                          April 12, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

LUCY YANG,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:15-CR-91-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Having been convicted pursuant to her guilty-plea, Lucy Yang appeals
her 60-month sentence for possession, with intent to distribute, 100 kilograms
or more of marijuana, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. Yang
maintains the district court erred in finding she did not qualify for a reduction
under the safety valve of Sentencing Guideline § 5C1.2 because she had not
provided all truthful information about her offense to the Government.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-11090

      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.      E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Thus, for this claimed procedural error, a district court’s factual finding
that a defendant is ineligible for a safety-value reduction because she did not
fully and truthfully debrief is reviewed for clear error. E.g., United States v.
McElwee, 646 F.3d 328, 345 (5th Cir. 2011). Along that line, a “factual finding
is not clearly erroneous if it is plausible, considering the record as a whole”.
United States v. King, 773 F.3d 48, 52 (5th Cir. 2014) (internal quotation marks
and citation omitted).
      As Yang notes, the Government must offer more than mere speculation
to show defendant failed to provide all truthful information. See United States
v. Miller, 179 F.3d 961, 969 (5th Cir. 1999). In the instant matter, however,
the Government pointed to specific false statements provided by Yang during
her proffer interview and omissions in her written statement. Although Yang
explained several areas of concern through her testimony at the sentencing
hearing, “defendants must disclose information by the time of the
commencement of the sentencing hearing”. United States v. Brenes, 250 F.3d
290, 293 (5th Cir. 2001) (emphasis added). Moreover, even if Yang’s above-
referenced testimony at sentencing is considered, the Government pointed to



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                               No. 16-11090

additional discrepancies between that testimony and her written statement.
Therefore, Yang has not shown the court clearly erred in finding she was
ineligible for a sentence reduction under the safety valve. See McElwee, 646
F.3d at 345.
      AFFIRMED.




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