UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-40336
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LUIS HUMBERTO DELGADO,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(C-99-CR-165-1)
March 16, 2001
Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Luis Humberto Delgado appeals his conviction and sentence for
possession with intent to distribute heroin, in violation of 21
U.S.C. § 841(a)(1) & (b)(1)(A). He argues that (1) his guilty plea
was involuntary because he did not fully understand the nature of
the charge to which he pleaded guilty, in violation of the
Constitution and Federal Rule of Criminal Procedure 11(c)(1), and
*
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opinion should not be published and is not precedent except under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.
2) the district court erred in not applying the safety valve
provision of 18 U.S.C. § 3553(f) and U.S. Sentencing Guidelines
Manual § 5C1.2.
In June 1999, Delgado was charged in a one-count indictment
with possession with intent to distribute twenty-five kilograms of
heroin, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). On
September 1, 1999, Delgado pleaded guilty to the charge set forth
in the indictment pursuant to a plea agreement, which provided for
the government to recommend credit for acceptance of responsibility
and to make a motion for downward departure in the event that
Delgado provided substantial assistance. During that arraignment,
the district court asked Delgado if on the day in question, he
knowingly and intentionally possessed heroin with the intent to
distribute. Delgado answered in the affirmative. Thereafter, the
government proffered the information. Delgado agreed that the
government had presented a truthful rendition of the facts, but in
response to the district court’s questions about transporting
heroin, he explained that he did not know what kind of illegal
products he was transporting. Delgado stated that he thought that
the products were weapons, ammunition, or possibly drugs. An
extensive colloquy followed between the district court and Delgado,
during which Delgado contradicted the statement that he believed
that he was transporting drugs. Upon hearing that contradiction,
the district court decided to set the case for trial. Delgado,
however, backtracked again, indicating that he did realize that he
2
might have been transporting illegal drugs. The district court
ultimately accepted the plea, found Delgado guilty, ordered
preparation of a presentence investigation report, and set the case
for sentencing.
On November 24, 1999, Delgado appeared for sentencing. The
district court asked Delgado’s counsel if the guidelines were
correctly calculated for a range of 135 to 168 months of
imprisonment. Delgado’s counsel responded that the range was
incorrect because there had been a debriefing that entitled Delgado
to relief from the statutory minimum sentence under the so-called
safety valve provision, 18 U.S.C. § 3553(f) and U.S. Sentencing
Guidelines Manual § 5C1.2. The district court then proceeded to
conduct an evidentiary hearing to determine if Delgado was eligible
for the safety valve and had provided the information required by
§ 3553(f)(5) and § 5C1.2(5). Afterwards, the sentencing was reset
for another date.
On January 6, 2000, Delgado again appeared for sentencing. At
that time, Delgado’s counsel agreed that the guidelines provided
for an imprisonment range of 135 to 168 months. Thereafter, the
district court sentenced Delgado to a 135-month term of confinement
to be followed by a five-year term of supervised release. Delgado
filed a pro se pleading within ten days of the entry of judgment,
which the district court construed as a timely notice of appeal.
As a result, his appeal is now before this court.
We review de novo the voluntariness of a defendant’s guilty
3
plea. United States v. Amaya, 111 F.3d 386, 388 (5th Cir. 1997).
During Delgado’s arraignment, the district court addressed the
elements of the offense; inquired whether Delgado had consulted
with his attorney regarding the charge contained in the indictment;
questioned him about his competency to enter a plea; asked whether
anyone had coerced him to plead guilty or promised him anything for
his plea; explained that his guilty plea waived his constitutional
rights to a trial by jury with the assistance of counsel, to
confront and cross-examine adverse witnesses, and against self-
incrimination; and informed him of the maximum sentence he faced.
Although the colloquy initially revealed Delgado’s uncertainty as
to whether he knowingly and intentionally possessed heroin with
intent to distribute, Delgado later clearly indicated that he did
believe that he might have been transporting drugs, and we have no
reason to doubt that he understood the plea that he entered.
As for Delgado’s second point of error, we generally review a
district court’s refusal to apply the safety valve provision for
clear error. United States v. Edwards, 65 F.3d 430, 433 (5th Cir.
1995). Here, we review Delgado’s claim for plain error because at
the second sentencing hearing, his counsel concurred with the
government that a sentence of 135 months was appropriate and did
not maintain the objection regarding the safety valve provision.
United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000), cert.
denied, No. 00-8299, 2001 WL 77067 (U.S. Feb. 26, 2001). Under
4
either standard, there was no error on the part of the district
court, based on the testimony heard at the sentencing hearing.
Thus, having thoroughly reviewed the briefs and pertinent
portions of the record, in addition to hearing oral argument, we
conclude that the district court did not err in accepting Delgado’s
plea of guilty and in refusing to apply the safety valve provision
to his sentence. Accordingly, the conviction and sentence are
AFFIRMED.
5