United States v. Mendez

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2003
• Docket: 02-40149
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 24, 2003

Charles R. Fulbruge III Clerk No. 02-40149 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL ANGEL MENDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-69-2 --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Miguel Angel Mendez appeals his sentence following his

guilty plea conviction for importing 12 kilograms of cocaine into

the United States from Mexico, in violation of 21 U.S.C.

§§ 952(a), 960(a)(1), 960(b)(1) and 18 U.S.C. § 2. Mendez

argues that district court committed error when it sentenced him

without applying the two-level reduction of U.S.S.G.

§ 2D1.1(b)(7), Supp. to the 2000 Guidelines Manual (May 2001),

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40149 -2-

due to Mendez’s failure to meet the safety-valve criteria of 18

U.S.C. § 3553(f), as set forth in U.S.S.G. § 5C1.2.

If a defendant with an offense level above 26, such as

Mendez, meets the criteria of U.S.S.G. § 5C1.2, a two-level

offense level decrease is warranted pursuant to U.S.S.G.

§ 2D1.1(b)(7). “A sentencing court’s findings of fact pertaining

to a [U.S.S.G.] § 5C1.2 reduction is a factual finding, which

this court reviews for clear error.” United States v. Wilson,

105 F.3d 219, 222 (5th Cir. 1997).

Sentencing Guidelines § 5C1.2(1) requires a finding that

“the defendant does not have more than one criminal history

point, as determined under the sentencing guidelines.” Mendez

does not satisfy this criterion, since Mendez was assigned three

criminal history points. Additionally, application of U.S.S.G.

§ 5C1.2 requires a finding that “the defendant was not an

organizer, leader, manager, or supervisor of others in the

offense, as determined under the sentencing guidelines. . .”

U.S.S.G. § 5C1.2(4). The district court specifically determined

that pursuant to U.S.S.G. § 3B1.1(b), Mendez was a manager or

supervisor of criminal activity, and the record supports this

determination. Therefore, Mendez fails to meet the criterion set

forth in U.S.S.G. § 5C1.2(4). Finally, application of U.S.S.G.

§ 5C1.2 requires a finding that “not later than the time of the

sentencing hearing, the defendant has truthfully provided to the

Government all information and evidence the defendant has No. 02-40149 -3-

concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or plan. . .” U.S.S.G.

§ 5C1.2(5). Although Mendez argues that he was truthful in his

debriefings with the Government, the record refutes this

argument.

Based on the foregoing, Mendez fails to meet three of the

five criteria set forth in U.S.S.G. § 5C1.2. Therefore, the

district court did not err when it sentenced Mendez without the

benefit of the two-level decrease set forth in U.S.S.G.

§ 2D1.1(b)(7).

The district court’s judgment is therefore AFFIRMED.