United States v. Rodriguez-Ruiz ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 18, 2003
Charles R. Fulbruge III
Clerk
No. 03-40114
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS RODRIGUEZ-RUIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-217-1
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Carlos Rodriguez-Ruiz (Rodriguez) appeals the sentence
he received following his guilty-plea conviction to possession of
cocaine with intent to distribute. He asserts that the district
court erred in denying him a downward adjustment pursuant to the
safety valve provision, U.S.S.G. § 5C1.2. Rodriguez has not met
his burden of establishing that he provided truthful and complete
information to the Government. See § 5C1.2(a)(5); United States
v. Flanagan, 80 F.3d 143, 146 (5th Cir. 1996). He has not shown
*
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that this opinion should not be published and is not precedent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. 03-40114
-2-
that the district court clearly erred in denying the adjustment.
See United States v. Miller, 179 F.3d 961, 963-64 (5th Cir.
1999).
Rodriguez also asserts that the district court erred in
denying him an adjustment for his minor role in the offense.
Typically this court reviews such claims for clear error. United
States v. Gallegos, 868 F.2d 711, 713 (5th Cir. 1989). However,
because Rodriguez moved in the district court for an adjustment
based upon his minimal role, this court should review for plain
error. See United States v. Leonard, 157 F.3d 343, 345 (5th Cir.
1998). Regardless which standard we use, Rodriguez has not
established that he was “substantially less culpable than the
average participant.” U.S.S.G. § 3B1.2, comment. (n.3(A));
United States v. Lokey, 945 F.2d 825, 840 (5th Cir. 1991). The
judgment of the district court is therefore AFFIRMED.