United States v. Orozco ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 15, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41392
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS FERNANDO OROZCO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-250-1
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Before KING, Chief Judge, and DEMOSS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Luis Fernando Orozco appeals his guilty-plea conviction of
possession with intent to distribute approximately 14.45
kilograms of cocaine. Orozco argues that the district court
erred in failing to apply the “safety-valve” provision contained
in U.S.S.G. § 5C1.2 because he provided detailed information to
law enforcement agents at his arrest and before his initial
appearance and the fact that he provided information appeared in
*
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that this opinion should not be published and is not precedent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.
No. 02-41392
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the presentence report, which contains no statement that the
information was false or lacking in detail. According to Orozco,
the district court should have conducted its own independent
review of the facts provided. We review for clear error. See
United States v. Flanagan, 80 F.3d 143, 145 (5th Cir. 1996).
The record reveals that Orozco had not provided the name of
the individual who approached him to drive the car containing the
cocaine or the names of the people following him in another car.
It is plausible that Orozco did know the names or other
information about the other individuals. In any event, he did
not communicate to the Government that he did not know the
identities of the other individuals. See United States v.
Flanagan, 80 F.3d 143, 145 (5th Cir. 1996)(citing with approval
United States v. Rodriguez, 69 F.3d 136 (7th Cir. 1995)). Orozco
did not meet his burden of credibly demonstrating that he
provided the Government with all of the information that he could
reasonably be expected to possess. See United States v. Miller,
179 F.3d 961, 968 (5th Cir. 1999). Therefore, Orozco has not
demonstrated that the district court’s determination that Orozco
was not entitled to the safety-valve provision was implausible in
light of the entire record. See United States v. Davis, 76 F.3d
82, 84 (5th Cir. 1996).
Orozco also argues that Apprendi v. New Jersey, 530 U.S. 466
(2000), overruled previous jurisprudence holding that drug
quantity was a sentencing factor and not an element of the
No. 02-41392
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offense and that the court cannot rewrite 21 U.S.C. § 841 to
correct its unconstitutionality. Therefore, Orozco argues that,
even under plain-error review, that statute must be stricken as
unconstitutional. As Orozco acknowledges, his argument is
foreclosed by United States v. Slaughter, 238 F.3d 580, 582 (5th
Cir. 2000), but he raises it here to preserve it for further
review. Accordingly, the district court’s judgment is AFFIRMED.