     Case: 10-50431 Document: 00511400612 Page: 1 Date Filed: 03/03/2011




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

                                                 FILED
                                                                            March 3, 2011
                                     No. 10-50431
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

REYNALDO TORRES-DE LA CRUZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:08-CR-440-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       In accordance with a written agreement that contained a waiver of his
appellate rights, Reynaldo Torres-De La Cruz pleaded guilty to one charge of
importing more than five kilograms of cocaine and was sentenced to serve 120
months in prison and a five-year term of supervised release. He appeals his
sentence, arguing that the district court erred by denying his request for a safety
valve adjustment pursuant to U.S.S.G. § 5C1.2, that the prosecutor breached the
plea agreement by making statements concerning application of the safety valve,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-50431 Document: 00511400612 Page: 2 Date Filed: 03/03/2011

                                  No. 10-50431

and that the prosecutor committed misconduct by not giving him protection or
reassurances that his cooperation would be rewarded. Additionally, he avers
that the Government should be required to show that defendants have had a fair
chance to earn the safety valve reduction.        Our review of the record and
pertinent caselaw shows that these contentions are unavailing.
      The rearraignment transcript shows that Torres-De La Cruz freely and
knowingly waived his appellate rights, and his claim concerning the district
court’s rejection of his request for a safety valve adjustment falls squarely within
the category of claims covered by the waiver. See United States v. Bond, 414
F.3d 542, 544 (5th Cir. 2005). Accordingly, we decline to consider this claim.
      Insofar as Torres-De La Cruz argues that the prosecution breached the
agreement, this claim survives the waiver. See United States v. Roberts, 624
F.3d 241, 244 (5th Cir. 2010). Nevertheless, this argument, which is reviewed
for plain error only, is unavailing because the record reflects that the
Government complied with the plain language of the agreement and that the
disputed adjustment was denied because the district court found that Torres-De
La Cruz did not qualify for it. See United States v. Reeves, 255 F.3d 208, 210
& n.2 (5th Cir. 2001).
      Torres-De La Cruz’s arguments concerning prosecutorial misconduct fail
because he has not shown the prosecutor acted improperly or took action that
rendered the proceedings unfair. See Smith v. Phillips, 455 U.S. 209, 219 (1982).
His claim concerning the Government’s burden is unworthy of relief because it
is contrary to jurisprudence holding that the defendant has the burden of
proving his eligibility for the safety valve reduction, including showing that he
truthfully provided the Government with all relevant information. See Smith,
455 U.S. at 219; United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996).
      The judgment of the district court is AFFIRMED.




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