United States v. Bocanegra

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2008
No. 07-40463
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ERIKA BOCANEGRA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1050-1
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Erika Bocanegra appeals her sentence following a guilty plea to possession
with intent to distribute more than fifty kilograms of marijuana. Bocanegra
challenges the district court’s determination that she was not entitled to a
sentence reduction pursuant to U.S.S.G. § 5C1.2 because she did not truthfully
provide the Government all relevant information concerning her offense. We
review the district court’s factual findings concerning a defendant’s eligibility for
*
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should not be published and is not precedent except under the limited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. 07-40463
a sentence under the § 5C1.2 safety valve for clear error. See United States v.
Miller, 179 F.3d 961, 963-64 (5th Cir. 1999).
A defendant convicted of an offense involving drugs is eligible for a two-
level reduction in offense level if she meets the five criteria necessary to qualify
for a sentence under the § 5C1.2 safety valve provision. U.S.S.G. § 2D1.1(b)(9);
United States v. Lopez, 264 F.3d 527, 529-30 (5th Cir. 2001). The fifth criterion,
the only one at issue here, requires that “the defendant has truthfully provided
to the Government all information and evidence the defendant has concerning
the offense.” § 5C1.2(a)(5); see also 18 U.S.C. § 3553(f)(5). The defendant has
the burden of showing that she truthfully provided the Government with all
relevant information. United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir.
1996).
In this case, the district court made an “independent determination” that
Bocanegra had not provided truthful information that qualified her for a
sentence reduction under § 5C1.2. See United States v. McCrimmon, 443 F.3d
454, 457-58 (5th Cir. 2006). That determination is not clearly erroneous in light
of the implausibility of Bocanegra’s explanation how she became involved in the
conspiracy and her description of her encounters with the person who recruited
her to transport drugs. See Miller, 179 F.3d at 963-64.
AFFIRMED.
2