United States v. Hinojosa

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 28, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-41133 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN ANGEL HINOJOSA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-125-1 --------------------

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Martin Angel Hinojosa appeals his guilty-plea conviction and

sentence for possession with intent to distribute less than 50

kilograms of marijuana in violation of 21 U.S.C. §§ 2, 841 and 21/846" style="color:var(--green);border-bottom:1px solid var(--green-border)">846.

Hinojosa challenges the district court’s refusal to apply the

“safety valve” provision, U.S.S.G. § 5C1.2, arguing that the

district court did not make an independent determination concerning

Hinojosa’s “truthfulness” in providing “to the Government all

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41133 -2-

information and evidence [he had] concerning the offense or

offenses that were part of the same course of conduct or of a

common scheme or plan[.]” See U.S.S.G. § 5C1.2(a)(5).

The district court’s finding regarding Hinojosa’s truthfulness

for purposes of U.S.S.G. § 5C1.2(a)(5) is plausible in the light of

the record viewed in its entirety. See United States v. Davis, 76

F.3d 82, 84 (5th Cir. 1996). The district court did not substitute

Agent Martinez’ decision for its own; rather, the court acted well

within its wide discretion in finding Agent Martinez’ testimony

credible. See United States v. Edwards, 65 F.3d 430, 432 (5th Cir.

1995); United States v. West, 58 F.3d 133, 138 (5th Cir. 1995).

Therefore the district court did not clearly err in refusing to

apply the “safety valve” provision.

Hinojosa also argues that 21 U.S.C. § 841 is unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Hinojosa

correctly concedes that the issue is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), and he raises it only

to preserve its further review by the Supreme Court. We are indeed

bound by our precedent absent an intervening Supreme Court decision

or a subsequent en banc decision. See United States v. Stone, 306

F.3d 241, 243 (5th Cir. 2002).

Accordingly, the judgment of the district court is AFFIRMED.