United States v. Jose Orozco-Lopez , 442 F. App'x 129 ( 2011 )

Case: 10-10861 Document: 00511610329 Page: 1 Date Filed: 09/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 22, 2011
No. 10-10861
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE JULIAN OROZCO-LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-50-1
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Jose Julian Orozco-Lopez appeals the 324-month term of imprisonment
imposed following his guilty plea conviction of conspiring to possess with the
intent to distribute methamphetamine. He contends that the district court erred
in determining that he was not entitled to the application of U.S.S.G.
§ 2D1.1(b)(11), which mandates a two-level reduction in the offense level of a
defendant who qualifies to be sentenced under the safety-valve provision in
§ 5C1.2 and 18 U.S.C. § 3553(f).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-10861
The district court determined that Orozco-Lopez did not meet his burden
of establishing his eligibility for the safety-valve reduction because he failed to
show that he did not possess a firearm in connection with the offense and failed
to show that he truthfully provided the Government with all of the information
and evidence he had concerning the offense. See § 3553(f)(2) & (5); United States
v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996). We review a district court’s
finding that a defendant is ineligible to be sentenced under the safety valve for
clear error. United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006). A
finding is not clearly erroneous if it is plausible in light of the record as a whole.
United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
According to the presentence report and testimony elicited at sentencing,
a gun was discovered in an apartment where Orozco-Lopez and his co-
defendants prepared, stored, and sold methamphetamine. Orozco-Lopez had a
key and free access to that apartment, methamphetamine was stored throughout
the apartment, a large amount of cash was found in the same room as the
firearm, and the firearm was stored in an easily accessible drawer along with a
digital scale commonly used for drug trafficking. Based on those facts, the
district court could plausibly infer that Orozco-Lopez, who was at the apartment
to distribute methamphetamine, had knowledge of, and access to, the weapon.
Orozco-Lopez presented nothing to link the gun to another individual or to
establish that he was unaware of its existence. He has not shown that the
district court clearly erred in determining that he had joint constructive
possession of a firearm in connection with his offense. See United States v.
Matias, 465 F.3d 169, 172-74 (5th Cir. 2006); United States v. Flucas, 99 F.3d
177, 178-79 (5th Cir. 1996); United States v. Mergerson, 4 F.3d 337, 348-49 (5th
Cir. 1993).
Orozco-Lopez also has not shown that the district court erred in
determining that he failed to truthfully provide all relevant information about
his offense to the Government. He identified the individual who supplied him
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Case: 10-10861 Document: 00511610329 Page: 3 Date Filed: 09/22/2011
No. 10-10861
with methamphetamine, but did not provide information that was not
specifically requested. Orozco-Lopez denied knowing much about his supplier,
ever speaking to him on the phone, or having any significant contact with him.
The district court’s determination that Orozco-Lopez was withholding
information about his supplier was plausible in light of the evidence that
Orozco-Lopez had an extended “drug relationship” with his supplier, who also
was his uncle. See McCrimmon, 443 F.3d at 457-58. Orozco-Lopez did not come
forward with any evidence that would support a conclusion that the district
court’s determination was incorrect.
As Orozco-Lopez failed to establish his eligibility to be sentenced under the
safety valve provision, the district court did not err in denying him a reduction
in his offense level under § 2D1.1(b)(11).
AFFIRMED.
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