Case: 10-20162 Document: 00511393964 Page: 1 Date Filed: 02/25/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 25, 2011
No. 10-20162
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARMANDO FIGUEROA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-368-3
Before GARWOOD, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Armando Figueroa appeals from the sentence imposed for his guilty plea
conviction for conspiracy to possess with intent to distribute a controlled
substance and possession with intent to distribute a controlled substance. He
argues that the district court erred by holding that he had failed to meet the fifth
criterion set forth in U.S.S.G. § 5C1.2 and therefore did not warrant a two level
decrease pursuant to U.S.S.G. § 2D1.1(b)(11). This court reviews the district
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20162 Document: 00511393964 Page: 2 Date Filed: 02/25/2011
No. 10-20162
court’s decision whether a defendant qualifies for the safety valve for clear error.
United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).
The fifth criterion for eligibility for the safety valve reduction requires
that, “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.” U.S.S.G. § 5C1.2(a)(5); see also United
States v. Brenes, 250 F.3d 290, 293 (5th Cir. 2001) (holding that truthful
debriefing must take place before commencement of sentencing hearing). The
defendant bears the burden of showing eligibility for the safety valve reduction.
Brenes at 293 n.1; United States v. Miller, 179 F.3d 961, 964 (5th Cir. 1999).
Examination of the record shows that the district court’s determination
that Figueroa had not truthfully provided the Government with all information
he had regarding the offense was plausible in light of the record as a whole. See
United States v. Powers, 168 F.3d 741, 753 (5th Cir. 1999). Figueroa had denied
at rearraignment that he had been present at the Sandstone Street house, a fact
which was refuted by the DEA agent’s testimony. Figueroa’s subsequent
admissions, through counsel in the latter part of the sentencing hearing, of his
presence at the Sandstone Street house were untimely for purposes of the safety
valve provision and merely affirm the existence of that discrepancy. See Brenes,
250 F.3d at 293. The fingerprint evidence offered by the government, which was
included in the unobjected to PSR and was not disputed by Figueroa, further
serves to contradict the version of events offered by Figueroa.
Accordingly, the judgment of the district court is
AFFIRMED.
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