United States v. Juan Lopez Preciado ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4428
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN CARLOS LOPEZ PRECIADO, a/k/a Juan Carlos, a/k/a Luis
Acevedo Gutierrez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas David
Schroeder, District Judge. (1:10-cr-00332-TDS-11)
Submitted: December 13, 2011 Decided: January 5, 2012
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Jones, BELL, DAVIS, & PITT, P.A., Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Carlos Lopez Preciado pled guilty pursuant to a
written plea agreement to one count of conspiracy to distribute
in excess of five kilograms of cocaine in violation of 21 U.S.C.
§§ 846, 841(b)(1)(A) (West 1999 & West Supp. 2011) and was
sentenced to the mandatory minimum sentence of 120 months’
imprisonment. Preciado argues that the district court erred by
not applying the safety valve provision of 18 U.S.C. § 3553(f)
(2006).
“The safety valve permits shorter sentences for a
first-time offender who would otherwise face a mandatory minimum
[sentence].” United States v. Fletcher, 74 F.3d 49, 56 (4th
Cir. 1996). A district court’s determination of whether a
defendant has satisfied the safety valve criteria is a question
of fact reviewed for clear error. United States v. Wilson, 114
F.3d 429, 432 (4th Cir. 1997). This deferential standard of
review permits reversal only if this court is “‘left with the
definite and firm conviction that a mistake has been
committed.’” United States v. Stevenson, 396 F.3d 538, 542 (4th
Cir. 2005) (quoting Anderson v. City of Bessemer City, 470 U.S.
564, 573 (1985)).
To qualify for the safety valve reduction, a defendant
must establish the existence of five prerequisites. Relevant to
this appeal, the fifth requirement of the safety valve provision
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requires a defendant to truthfully provide the Government with
all the information and evidence he has concerning the offense.
§ 3553(f)(5), U.S. Sentencing Guidelines Manual § 5C1.2(a)(5)
(2010). Defendants must “demonstrate, through affirmative
conduct, that they have supplied truthful information to the
Government.” United States v. Ivester, 75 F.3d 182, 185 (4th
Cir. 1996). The burden is on the defendant to prove that this
requirement has been met. United States v. Beltran-Ortiz, 91
F.3d 665, 669 (4th Cir. 1996).
Preciado did not testify at the sentencing hearing nor
did he offer any witnesses on his behalf. The Government
presented evidence that Preciado did not disclose relevant facts
related to the conspiracy. Our review of the record leads us to
conclude that the district court’s finding that Preciado did not
qualify for the safety valve provision is not clearly erroneous.
We therefore affirm the judgment of the district court. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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