United States v. Obregon

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 4, 1999
• Docket: 98-31167
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-31167 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS TOBIAS OBREGON,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 98-CR-68-R-1 _________________________________________________________________

August 4, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

The appellant, Jesus Tobias Obregon, was indicted along with

his codefendant, Berta Vicente, on charges of conspiracy to possess

cocaine with intent to distribute and attempted possession of

cocaine with intent to distribute.

Obregon appeals the district court’s finding that he did not

meet the requirements for the so-called “safety valve” provision

under U.S.S.G. § 5C1.2, which allows defendants who meet certain

conditions to avoid the imposition of a mandatory minimum sentence.

See United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 fifth requirement, at issue here, allows a defendant the safety

valve if, having met the other requirements,

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that a defendant has complied with this requirement.

U.S.S.G. § 5C1.2(5).

A sentencing court’s refusal to apply § 5C1.2 is a factual

determination that this court reviews for clear error. United

States v. Edwards, 65 F.3d 430, 433 (5th Cir. 1995). A factual

finding is not clearly erroneous if it is plausible in the light of

the record read as a whole. United States v. Watson, 966 F.2d 161,

162 (5th Cir. 1992).

The record amply supports the district court’s decision.

During his interview with the government, Obregon maintained that

Vicente had no knowledge of the drug transaction and did not know

that Obregon intended to use her vehicle to travel to New Orleans

to pick up the cocaine. However, the record shows that Vicente was

directly involved in the transaction and was well aware of the

purpose of both Obregon’s use of her vehicle and his trip to New

Orleans. In addition, Obregon was evasive during the interview,

changing his statement regarding certain points, such as when he

2 obtained the vehicle and whether Vicente was with him in New

Orleans.

Although Obregon may have admitted the underlying facts by

signing the government’s factual basis, although he may have

provided other information to the government, and although his

interview may have had no effect on the government’s case against

Vicente, he nevertheless gave false information to the government

during his interview. A defendant must truthfully provide all

information in his possession, regardless of whether it is useful

or already known to the government. See United States v. Real-

Hernandez, 90 F.3d 356, 361 (9th Cir. 1996).

Obregon’s reliance on United States v. Flanagan, 87 F.3d 121,

125 n.3 (5th Cir. 1996), for the proposition that his acceptance of

responsibility and guilty plea entitle him to the safety valve is

misplaced. Not only is the statement on which Obregon relies

dicta, there was no indication in Flanagan that the defendant had

been untruthful or had contradicted his earlier statements, in

contrast to the situation in the present case.

Accordingly, the district court did not clearly err in

refusing to apply the safety valve.

A F F I R M E D.