United States v. Erasmo Lemus

FILED NOT FOR PUBLICATION JAN 27 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 13-30001 Plaintiff - Appellee, D.C. No. 2:12-cr-06012-EFS v. MEMORANDUM* ERASMO BIRRUETA LEMUS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding Submitted January 21, 2014** Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges. Erasmo Birrueta Lemus appeals from the district court’s judgment and challenges the 120-month sentence imposed following his guilty-plea conviction for conspiracy to possess and possession with intent to distribute at least 50 grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). aiding and abetting, in violation of 18 U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Birrueta Lemus contends that the district court erred by finding him ineligible for safety valve relief. We review for clear error, see United States v. Mejia-Pimental, 477 F.3d 1100, 1103 (9th Cir. 2007), and find none. The record supports the district court’s finding that Birrueta Lemus failed to provide the government with all of the information that he had concerning the offense. See 18 U.S.C. § 3553(f)(5); United States v. Thompson, 81 F.3d 877, 880 (9th Cir. 1996) (“[A] defendant must give the Government all the information he has concerning the offense, including the source of his drugs, to avail himself of the benefit of [the safety valve].”). Birrueta Lemus also contends the district court erred by failing to place the case agent under oath and by depriving Birrueta Lemus of his Sixth Amendment right to confront the witnesses against him. We review for plain error, see United States v. Orm Hieng, 679 F.3d 1131, 1138-39 (9th Cir. 2012), and find none. Birrueta Lemus has not shown a reasonable probability that he would have received a different sentence had the court placed the agent under oath or given Birrueta Lemus the opportunity to cross-examine the agent. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008). AFFIRMED. 2 13-30001