United States v. Hernandez

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10969 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DORY HERNANDEZ,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (4:00-CR-239-17-A) _________________________________________________________________ February 28, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Dory Hernandez challenges the sentence imposed following his

guilty-plea conviction for possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1), and use of a

communications facility to cause or facilitate a controlled-

substance offense, in violation of 21 U.S.C. § 843(b). Hernandez

contends the district court should have adjusted his offense level

pursuant to the “safety valve” provision, U.S.S.G. § 5C1.2, and

should have adjusted the offense level for his minor participation,

U.S.S.G. § 3B1.2(b).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The district court’s findings are reviewed only for clear

error. Its finding that Hernandez had not truthfully provided

information to the Government was not clearly erroneous, see United

States v. Miller, 179 F.3d 961, 964 (5th Cir. 1999); nor was its

finding that Hernandez was not a minor participant, see United

States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989), cert.

denied, 495 U.S. 923 (1990).

AFFIRMED