United States v. Roman-Salgado

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 15, 2007
No. 07-40384
Summary 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-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lamberto Roman-Salgado appeals the sentence following his guilty-plea
conviction for possession with intent to distribute more than five kilograms of
cocaine in violation of 21 U.S.C. § 841. Ramon-Salgado argues that the district
court failed to make adequate factual findings to support its decision to deny him
safety valve relief and that the district court erred in denying him safety valve
relief based upon its erroneous conclusion that the Government’s objection to the
safety valve barred it from granting or even considering the safety valve.
*
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should not be published and is not precedent except under the limited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. 07-40384
Although application of the safety valve pursuant to 18 U.S.C. § 3553(f)
and U.S.S.G. § 5C1.2 was addressed during Roman-Salgado’s sentencing
hearing, Roman-Salgado did not challenge the reason the district court gave for
denying the safety valve or the failure of the district court to make any factual
findings in connection with its denial of the safety valve. Accordingly, we review
those particular issues for plain error. See Unites States v. Perez,
484 F.3d 735, 744 (5th Cir. 2007); United States v. Rodriguez, 15 F.3d 408,
414-15 (5th Cir. 1994).
The Government’s objection to the application of the safety valve did not
preclude the district court from considering the safety valve. See § 5C1.2(a)(5);
see also § 3553(f)(5); cf. U.S.S.G. § 5K1.1. Accordingly, the district court’s belief
that it did not have the authority to consider the safety valve was error that was
plain. Because of the error, the district court failed to factually develop whether
Roman-Salgado was entitled to the safety valve. Given the lack of factual
development of the record, it is impossible to determine whether the district
court’s error affected Roman-Salgado’s substantial rights. Therefore, Roman-
Salgado’s sentence is vacated and the case remanded for resentencing for the
district court to consider whether he is entitled to the safety valve and
resentence him accordingly. See United States v. Butler, 988 F.2d 537, 543-44
(5th Cir. 1993)
We note that the judgment mistakenly states that Roman-Salgado was
convicted pursuant to 21 U.S.C. §§ 841 and 846. The record reflects that Roman-
Salgado pleaded guilty to a violation of § 841, but that the conspiracy count
under § 846 was dismissed. Accordingly, on remand, the district court is
directed to correct the judgment to reflect that the only offense of conviction is
21 U.S.C. § 841.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING AND FOR CORRECTION OF CLERICAL ERROR
2