United States v. Roman-Salgado ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 08-40310
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LAMBERTO ROMAN-SALGADO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1222-1
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Lamberto Roman-Salgado appeals the judgment imposed following
resentencing for his conviction of possession with intent to distribute cocaine, in
violation of U.S.C. § 841(a)(1) and (b)(1)(A). Roman-Salgado argues that the
district court clearly erred in denying his request for a safety valve adjustment
pursuant to 18 U.S.C. § 3553(f). He argues that his refusal to answer questions
about one of his cell phones should not have precluded the adjustment because
the cell phone in question was given to him by his girlfriend, Miranda; the phone
*
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should not be published and is not precedent except under the limited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. 08-40310
was not given to him in connection with his drug trafficking; the phone was not
activated; and the phone was not used in connection with his drug trafficking.
Roman-Salgado argues that, if this court does not find clear error with respect
to the district court’s denial of a safety valve adjustment, this court should
remand the case to the district court because the district court failed to make
adequate findings regarding its denial of the adjustment.
We review the district court’s denial of a safety valve adjustment for clear
error. United States v. Villanueva, 408 F.3d 193, 203 n.9 (5th Cir. 2005); United
States v. Miller, 179 F.3d 961, 963-64 (5th Cir. 1999). As Roman-Salgado did not
argue at resentencing that the district court failed to make adequate factual
findings in connection with its denial of the safety valve, our review of that issue
is for plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th
Cir. 2008).
The district court made an independent determination, based upon the
testimony of Agent Hardwich, that Roman-Salgado had not provided truthful
information that qualified him for the safety valve adjustment. The district
court found that Roman-Salgado’s testimony that Miranda was simply his
girlfriend was not credible and that Agent Hardwich’s testimony that Miranda
was a coconspirator was credible. The district court noted that Agent
Hardwich’s version of what Roman-Salgado said during his initial interview was
corroborated by the agent’s report of that interview, which was prepared shortly
after arrest. Roman-Salgado has not shown error, plain or otherwise, with
respect to the district court’s denial of a safety valve adjustment. See
§ 3553(f)(5); U.S.S.G. § 5C1.2; United States v. McCrimmon, 443 F.3d 454, 457-
58 (5th Cir. 2006); United States v. Powers, 168 F.3d 741, 753 (5th Cir. 1999).
The district court’s judgment is AFFIRMED.
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