     Case: 16-40145        Document: 00514009028       Page: 1    Date Filed: 05/26/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-40145                              FILED
                                                                            May 26, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

           Plaintiff - Appellee

v.

ANGELO CARLINN HOLMES,

           Defendant - Appellant



                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 2:15-CR-643-1


Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Angelo Carlinn Holmes was convicted of possession with intent to
distribute methamphetamine. The district court sentenced Holmes to the
mandatory minimum term of 10-years’ imprisonment after finding Holmes
ineligible for safety-valve relief. Holmes appealed and we AFFIRM.
                                             I
       Holmes was charged with one count of possession with intent to
distribute more than 500 grams of a substance containing methamphetamine,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40145
a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). The district court found Holmes
guilty after a bench trial on stipulated facts.
      According to Holmes’s Presentencing Report (PSR), Holmes travelled to
Texas to visit a woman he had met in New Orleans two months earlier. The
woman’s friend gave Holmes drugs to smuggle to a bus station in Houston.
When Holmes’s Greyhound bus stopped at a U.S. Border Patrol checkpoint in
Texas, a border patrol agent who suspected that Holmes was concealing drugs
patted him down and discovered two bags of a “white powdery substance.”
Laboratory testing determined that the substance was methamphetamine. The
PSR did not describe any other drug trafficking.
      The PSR calculated Holmes’s total offense level at 29. With his criminal
history category of I, Holmes’s Guidelines sentencing range was 87- to 108-
months’ imprisonment, but Holmes was subject to a statutory minimum term
of 10-years’ imprisonment.
      Holmes was first called for sentencing on January 20, 2016. The parties
informed the court that Holmes was eligible for relief under the “safety-valve”
provision in 18 U.S.C. § 3553(f), which allows courts to disregard the statutory
minimum for low-level, nonviolent drug offenders who cooperate with the
Government. The Government attorney—who had recently replaced the
original prosecutor on the case—informed the court that she believed Holmes
had debriefed truthfully with a DEA agent. Because the DEA agent was
unavailable that day, the district court postponed Holmes’s sentencing so the
agent could testify regarding the debrief.
      At the rescheduled sentencing hearing, the DEA agent testified that he
conducted Holmes’s debrief on December 3, 2015, and that he believed that
Holmes “was being as truthful as he could.” The agent testified that Holmes
said that he had met a woman named Cheyenne at a club in New Orleans and
that Cheyenne connected Holmes with the drug supplier in Texas. Holmes
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                                 No. 16-40145
admitted that the instant offense was his second load of drugs involving
Cheyenne. Holmes said that he sold the first load of drugs “on the streets” in
New Orleans, but did not specify where.
      The district court asked whether the agent had questioned Holmes about
his plans to sell the second load of drugs. The agent responded that he had
asked but Holmes “wasn’t forthcoming as far as that.” The agent elaborated
that he “asked [Holmes] where he was going to sell it and he just didn’t provide
that information.” Quoting the relevant statutory language, the district court
asked the agent to confirm whether “[Holmes] . . . truthfully provided to the
Government all information and evidence the Defendant has concerning the
offense or offenses that were part of the same course or scheme.” The agent
answered that Holmes had not.
      After the agent’s testimony, the prosecutor argued that the Government
had been “misguided in [its] request . . . that the Court allow a safety-valve
adjustment . . . .” The prosecutor said she had thought Holmes was just a
transporter with no knowledge beyond where he was supposed to pick up and
deliver the drugs. Instead, Holmes was a street dealer who had made a prior
trip, “which makes it seem less credible that he doesn’t know the person who
set up this deal . . . .” The prosecutor asked the court to impose the mandatory
minimum sentence of 10 years.
      Defense counsel asked for “more time . . . to do a follow-up [with the
agent,]” which the district court denied after it confirmed that defense
counsel’s investigator attended Holmes’s debrief. The district court allowed
defense counsel to consult with Holmes who declined to testify. In light of the
DEA agent’s testimony, the court denied the requested safety-valve relief. The
court explained that it could not in “good conscience” find that Holmes had
truthfully provided everything he could when it was clear that Holmes was not


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                                            No. 16-40145
merely a transporter but was in fact a seller and that Holmes had not been
forthcoming about the details of his planned drug sales.
          The court sentenced Holmes to the mandatory minimum of 10-years’
imprisonment, explaining, “[t]ruthfully disclosing all that you know is
required. Apparently [you were] given that opportunity and [were] not
forthcoming, according to the witness. So that’s the sentence – basis of the
sentence.” Defense counsel reiterated her objection to the denial of safety-valve
relief.
          Holmes now appeals the district court’s judgment.
                                                   II
          We review the district court’s legal interpretation of the safety-valve
provision de novo and its findings of fact as to the application of the provision
for clear error. United States v. Flanagan, 80 F.3d 143, 145 (5th Cir. 1996). “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), cert. denied,
135 S. Ct. 1865 (2015) (internal quotation marks and citation omitted); United
States v. Contreras, 597 F. App’x 265, 266 (5th Cir. 2015) (unpublished) (“The
district court’s finding that [the defendant] was not truthful was plausible in
light of the record as whole and not clearly erroneous.”).
          The safety-valve provision permits a district court to disregard the
statutory mandatory minimum sentence under certain drug statutes,
including § 841, if the defendant meets five requirements. 18 U.S.C. § 3553(f);
see also U.S.S.G. § 5C1.2. 1 The defendant bears the burden of showing that he




          1   The five safety-valve requirements are:

                   (1) the defendant does not have more than 1 criminal history point . . . ;

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                                     No. 16-40145
satisfies each requirement. See United States v. Towns, 718 F.3d 404, 412 (5th
Cir. 2013). The only requirement at issue in this appeal is the fifth: whether
Holmes truthfully 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 or plan.” 18 U.S.C. § 3553(f)(5).
      Holmes argues that the district court clearly erred when it denied him
safety-valve relief based on its finding that he was not “forthcoming . . . about
[his] determined disposition of the drugs.” According to Holmes, “[t]he
[G]overnment’s and the court’s inference that Mr. Holmes had some more
detailed plan which he refused to share is based merely on speculation and is
not a basis for the denial of the safety valve.” The Government counters that
the district court did not base its denial on speculation, but rather on the DEA
agent’s testimony that Holmes declined to answer when asked about his
planned sale of the drugs.
      In support of his argument, Holmes primarily relies on United States v.
Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996). In Miranda-Santiago, the First
Circuit held that the district court clearly erred in denying the safety-valve




             (2) the defendant did not use violence or credible threats of violence or
                 possess a firearm or other dangerous weapon . . . 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 . . . ; 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 . . . .

      18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2 (reiterating the requirements).
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                                 No. 16-40145
reduction. Id. at 527–30. The First Circuit explained that “mere conjecture”
could not alone bar application of the safety-valve reduction. Id. at 529. The
court elaborated that the “district court’s bare conclusion that [the defendant]
did not ‘cooperate fully,’ absent either specific factual findings or easily
recognizable support in the record, cannot be enough to thwart her effort to
avoid imposition of a mandatory minimum sentence.” Id. at 529–30. In a later
case, the First Circuit clarified its holding in Miranda-Santiago: “Miranda-
Santiago in no sense suggests that the sentencing court cannot arrive at an
independent determination regarding a criminal defendant’s truthfulness,
based on the evidence before it.” United States v. White, 119 F.3d 70, 74 (1st
Cir. 1997).
      Our court has relied on Miranda-Santiago as well. In United States v.
Miller, the Government argued that denial of safety-valve relief was justified
by the defendant’s supposedly false claim that he first learned how to dry
cocaine during his most recent drug offense. 179 F.3d 961, 967 (5th Cir. 1999).
Citing Miranda-Santiago, we found the Government’s assertion that the
defendant was untruthful to be “pure speculation,” because the only plausible
support for this assertion was the defendant’s prior drug trafficking experience
and the complexity of the cocaine drying process. Id. at 968–69.
      This case is distinguishable from Miranda-Santiago and Miller. The
district court’s denial was not based on “mere conjecture” or “bare
conclusion[s],” see Miranda-Santiago, 96 F.3d at 529–30, but on specific
evidence in the record supporting a finding that Holmes did not “truthfully
provide[] . . . all information” about his offense. See 18 U.S.C. § 3553(f)(5).
Specifically, the district court relied on the DEA agent’s testimony that Holmes
was not “forthcoming” when asked about his plans to sell the drugs he had
purchased. See United States v. Munera-Uribe, 192 F.3d 126, 1999 WL 683823,
at *14 (5th Cir. Aug. 5, 1999) (unpublished) (affirming denial of safety-valve
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                                  No. 16-40145
relief because the district court had relied on “concrete evidence tending to
show [the defendant’s] untruthfulness”).
      Even if we found the agent’s testimony to be ambiguous, as Holmes
appears to suggest, there is still no basis to second guess the district court. It
was Holmes’s burden to demonstrate applicability of the safety-valve
provision, including that he “truthfully provided . . . all information” about his
offense. See Flanagan, 80 F.3d at 145–47. Holmes offered no evidence to rebut
the DEA agent’s testimony, and the district court did not clearly err in relying
on that testimony to deny safety-valve relief.
      Holmes also argues that “[the agent] did not provide any evidentiary
basis to believe that [he] had particular plans for the distribution of the
purchased drugs which he refused to share.” Again, this argument is
unavailing in light of the record. In addition to the agent’s testimony that
Holmes was not “forthcoming,” Holmes admitted to the agent that he had
purchased narcotics through Cheyenne’s contacts on a previous occasion and
then sold the drugs on the streets in New Orleans. Given his admitted recent
experience drug trafficking in New Orleans, it was not “mere conjecture” for
the district court to infer that Holmes would have some idea about where and
how he intended to sell the second load of drugs.
                                       III
      In addition to his appeal of the district court’s denial of safety-valve
relief, Holmes also appeals his conviction. Holmes argues that the evidence
presented at trial was insufficient to support his conviction under 21 U.S.C.
§ 841 because the Government did not prove (and the district court did not
find) beyond a reasonable doubt that he knew the type and quantity of drugs
that he conspired to possess. This argument is foreclosed by our precedent. See
United States v. Betancourt, 586 F.3d 303, 307–09 (5th Cir. 2009).


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                                  No. 16-40145
                                       IV
         For all the foregoing reasons, we AFFIRM the judgment of the district
court.




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