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

                                                                            FILED
                                                                         October 10, 2008

                                       No. 07-50184                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

EMILIO PENA-NAJERA

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                                2:06-CR-689-ALL


Before JOLLY, BARKSDALE and HAYNES, Circuit Judges.
PER CURIAM:*
       Emilio Pena-Najera pled guilty to a one-count indictment for possession
of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B). His sole issue on appeal is based upon his contention that the district
court erred in failing to award him a reduction of his sentence under the “safety-
valve provision” of 18 U.S.C. § 3553(f) and section 5C1.2 of the United States
Sentencing Guidelines. Pena-Najera alleges that the district judge failed to
make an “independent determination.”


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50184

      We have carefully reviewed the sentencing record, and we conclude that
the district judge did made an “independent determination.” It was Pena-
Najera’s burden to prove that he was entitled to the “safety-valve” reduction, and
he failed to meet that burden. United States v. Flanagan, 80 F.3d 143, 146 (5th
Cir. 1996); see also United States v. Cervantes, 519 F.3d 1254, 1258 (10th Cir.
2008) (“he who has the burden of proof must put on some evidence at a
sentencing hearing to allow the district court to find, by a preponderance of the
evidence, that he is eligible for the safety-valve adjustment.”).
      Accordingly, the judgment of the district court is AFFIRMED.




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