United States v. Pena-Najera , 295 F. App'x 709 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 10, 2008
No. 07-50184 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EMILIO PENA-NAJERA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
2:06-CR-689-ALL
Before JOLLY, BARKSDALE and HAYNES, Circuit Judges.
PER CURIAM:*
Emilio Pena-Najera pled guilty to a one-count indictment for possession
of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B). His sole issue on appeal is based upon his contention that the district
court erred in failing to award him a reduction of his sentence under the “safety-
valve provision” of 18 U.S.C. § 3553(f) and section 5C1.2 of the United States
Sentencing Guidelines. Pena-Najera alleges that the district judge failed to
make an “independent determination.”
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50184
We have carefully reviewed the sentencing record, and we conclude that
the district judge did made an “independent determination.” It was Pena-
Najera’s burden to prove that he was entitled to the “safety-valve” reduction, and
he failed to meet that burden. United States v. Flanagan, 80 F.3d 143, 146 (5th
Cir. 1996); see also United States v. Cervantes, 519 F.3d 1254, 1258 (10th Cir.
2008) (“he who has the burden of proof must put on some evidence at a
sentencing hearing to allow the district court to find, by a preponderance of the
evidence, that he is eligible for the safety-valve adjustment.”).
Accordingly, the judgment of the district court is AFFIRMED.
2