IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-31167
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS TOBIAS OBREGON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CR-68-R-1
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August 4, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The appellant, Jesus Tobias Obregon, was indicted along with
his codefendant, Berta Vicente, on charges of conspiracy to possess
cocaine with intent to distribute and attempted possession of
cocaine with intent to distribute.
Obregon appeals the district court’s finding that he did not
meet the requirements for the so-called “safety valve” provision
under U.S.S.G. § 5C1.2, which allows defendants who meet certain
conditions to avoid the imposition of a mandatory minimum sentence.
See United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995).
*
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this opinion should not be published and is not precedent except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.
The fifth requirement, at issue here, allows a defendant the safety
valve if, having met the other requirements,
(5) 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 or offenses that were part of the same course
of conduct or of a common scheme or plan, but the fact
that the defendant has no relevant or useful other
information to provide or that the Government is already
aware of the information shall not preclude a
determination by the court that a defendant has complied
with this requirement.
U.S.S.G. § 5C1.2(5).
A sentencing court’s refusal to apply § 5C1.2 is a factual
determination that this court reviews for clear error. United
States v. Edwards, 65 F.3d 430, 433 (5th Cir. 1995). A factual
finding is not clearly erroneous if it is plausible in the light of
the record read as a whole. United States v. Watson, 966 F.2d 161,
162 (5th Cir. 1992).
The record amply supports the district court’s decision.
During his interview with the government, Obregon maintained that
Vicente had no knowledge of the drug transaction and did not know
that Obregon intended to use her vehicle to travel to New Orleans
to pick up the cocaine. However, the record shows that Vicente was
directly involved in the transaction and was well aware of the
purpose of both Obregon’s use of her vehicle and his trip to New
Orleans. In addition, Obregon was evasive during the interview,
changing his statement regarding certain points, such as when he
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obtained the vehicle and whether Vicente was with him in New
Orleans.
Although Obregon may have admitted the underlying facts by
signing the government’s factual basis, although he may have
provided other information to the government, and although his
interview may have had no effect on the government’s case against
Vicente, he nevertheless gave false information to the government
during his interview. A defendant must truthfully provide all
information in his possession, regardless of whether it is useful
or already known to the government. See United States v. Real-
Hernandez, 90 F.3d 356, 361 (9th Cir. 1996).
Obregon’s reliance on United States v. Flanagan, 87 F.3d 121,
125 n.3 (5th Cir. 1996), for the proposition that his acceptance of
responsibility and guilty plea entitle him to the safety valve is
misplaced. Not only is the statement on which Obregon relies
dicta, there was no indication in Flanagan that the defendant had
been untruthful or had contradicted his earlier statements, in
contrast to the situation in the present case.
Accordingly, the district court did not clearly err in
refusing to apply the safety valve.
A F F I R M E D.
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