United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 14, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-50042
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT FO, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:99-CR-811-1)
Before DAVIS, BARKSDALE, AND BENAVIDES, Circuit Judges.
PER CURIAM:*
Having pleaded guilty in 1999 to conspiracy to possess, with
intent to distribute, five kilograms or more of cocaine and to
possession, with intent to distribute, 500 grams or more of
cocaine, Robert Fo, Jr., contests his sentence in 2005, contending
the district court clearly erred in denying him a 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this opinion should not be published and is not precedent except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.
reduction pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2.
(Fo was a fugitive for six years prior to sentencing.)
A district court’s factual findings regarding a safety-valve
adjustment are reviewed for clear error; its legal interpretations,
de novo. United States v. Miller, 179 F.3d 961, 964 (5th Cir.
1999). As noted, Fo claims only clear error by the district court
in its findings of fact.
“U.S.S.G. § 5C1.2, also known as the ‘safety valve’ provision,
limits the applicability of statutory minimum sentences in certain
cases, specifically, those involving less culpable defendants who
fully assist the Government.” United States v. Treft, 447 F.3d
421, 426 (5th Cir.) (internal citations omitted), cert. denied, 127
S. Ct. 555 (2006). To receive a safety-valve adjustment, a
defendant must meet five criteria listed in § 5C1.2; if he does,
the sentencing court may impose its sentence in accordance with the
Guidelines rather than the statutory minimum. U.S.S.G. § 5C1.2(a);
18 U.S.C. § 3553(f).
In rejecting Fo’s safety-valve-adjustment request, the
district court found Fo had not satisfied § 5C1.2(a)(5), which
requires that, “not later than the time of the sentencing hearing,
the defendant ... truthfully provide[] to the Government all
information and evidence the defendant has concerning the offense
or offenses that were part of the same course of conduct or of a
common scheme or plan”. § 5C1.2(a)(5). Fo maintains he made a
timely and complete disclosure of all relevant facts surrounding
2
the commission of the offenses charged. He also claims the
district court’s factual findings as to drug quantities likewise
support the necessary findings for a safety-valve adjustment.
The defendant has the burden of establishing eligibility for
the safety-valve reduction, including showing he truthfully
provided the Government with all relevant information and evidence
regarding the offense. United States v. Flanagan, 80 F.3d 143,
146-47 (5th Cir. 1996). Information in the Presentence
Investigation Report, which the district court adopted in relevant
part, shows: Fo’s involvement in the drug conspiracy extended
beyond the two kilogram deals to which he admitted; and he was
actively involved in negotiations regarding a sale of 100 kilograms
of cocaine, a fact Fo denies. Despite Fo’s contentions to the
contrary, a review of the record shows Fo failed to truthfully
provide the Government with all information and evidence regarding
the instant offenses. See U.S.S.G. § 5C1.2; 18 U.S.C. §
3553(f)(5); Flanagan, 80 F.3d at 146-47. Accordingly, because the
district court’s safety-valve-reduction finding is plausible in
light of the record as a whole, see United States v. Davis, 76 F.3d
82, 84 (5th Cir. 1996), its challenged finding is not clearly
erroneous.
AFFIRMED
3