IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40269
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL HERNANDEZ ALEMAN,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(C-99-CR-267)
October 30, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant was convicted of a single count of
possession with intent to distribute cocaine. Because Aleman's
testimony at trial differed from the statement he provided to
officers at the time of his arrest, the Presentence Report (PSR)
recommended a total offense level of 30, which included a two-point
obstruction of justice enhancement.1 At the sentencing hearing, the
*
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this opinion should not be published and is not precedent except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.
1
See U.S.S.G. § 3C1.1, notes 4(b) & 4(f).
district court heard testimony from Agent Vickers. Agent Vickers
offered uncontroverted testimony that the information provided by
Aleman during a post-trial debriefing with agents was truthful.
The district court ultimately found an offense level of 28,
imposing imprisonment at the lowest range of that level (i.e., 78
months). The record indicates that the court rejected the
application of the obstruction of justice enhancement. However, the
court also refused to apply a two-point reduction under the "safety
valve" provision2 - which would have yielded a total offense level
of 26 - unless Aleman testified under oath that his debriefing was
truthful (at which time, the court stated that it would award an
obstruction of justice enhancement because of the conflict between
this testimony and Aleman's trial testimony). Aleman refused to so
testify, and the court refused to award a "safety valve" reduction.
Aleman appeals the court's failure to apply this downward
reduction.3
The district court's failure to award the reduction is clearly
erroneous.4 Not only is it uncontested that Aleman met the first
2
See U.S.S.G. § 5C1.2, 2D1.1(b)(6).
3
A defendant may appeal a sentence imposed under the
sentencing guidelines if the sentence "(1) was imposed in violation
of law; (2) was imposed as a result of an incorrect application of
the sentencing guidelines; or (3) is greater than the sentence
specified in the applicable guideline range." 18 U.S.C. § 3742(a)
(2000).
4
See United States v. Edwards, 65 F.3d 430, 433 (5th Cir.
1995).
2
four criteria under section 5C1.2, but there is uncontroverted
testimony from the sentencing hearing that the debriefing was
truthful - thereby meeting the fifth and final requirement. The
district court never indicated that it doubted Vicker's testimony.
The "safety valve" reduction is mandatory if the five criteria are
met.5
The more difficult question in this case is whether the
district court's failure to award the reduction was harmless error.
A finding of harmless error requires specific, convincing evidence
from the record that the district court had a particular sentence
in mind, and would have imposed that sentence notwithstanding the
guideline error.6 In this case, the district court indicated its
general policy of not applying an obstruction of justice
enhancement based on a defendant's false trial testimony. However,
it also repeatedly indicated that it would not award the safety
valve reduction and follow its normal policy of not applying the
obstruction of justice enhancement. Moreover, although we may
question the wisdom of the court's "either-or" posture,7 the
5
See United States v. Miller, 179 F.3d 961, 963 n.2 (5th Cir.
1999).
6
See United States v. Huskey, 137 F.3d 283, 289 (5th Cir.
1998).
7
However, had the court applied both the downward reduction
and the obstruction of justice enhancement, the record would
support the latter decision (i.e., because Aleman's trial testimony
arguably met the criteria for perjury). See United States v.
Dunnigan, 507 U.S. 87, 95-96 (1993); United States v. Storm, 36
3
Government has met its burden of proof in establishing harmless
error.8 In fact, the court expressly indicated that an offense
level of 28 would result, even if the court were to apply the
safety valve provision. In light of the preceding, the district
court's judgment is AFFIRMED.
AFFIRMED.
F.3d 1289, 1295 (5th Cir. 1994). Thus, the court would not need to
hear new testimony from Aleman about the truthfulness of the
debriefing to find obstruction of justice.
8
See Huskey, 137 F.3d at 289.
4
United States v. Aleman
Combined Opinion