United States v. Orozco

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 15, 2003
• Docket: 02-41392
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 15, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-41392 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS FERNANDO OROZCO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-250-1 --------------------

Before KING, Chief Judge, and DEMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Luis Fernando Orozco appeals his guilty-plea conviction of

possession with intent to distribute approximately 14.45

kilograms of cocaine. Orozco argues that the district court

erred in failing to apply the “safety-valve” provision contained

in U.S.S.G. § 5C1.2 because he provided detailed information to

law enforcement agents at his arrest and before his initial

appearance and the fact that he provided information appeared in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41392 -2-

the presentence report, which contains no statement that the

information was false or lacking in detail. According to Orozco,

the district court should have conducted its own independent

review of the facts provided. We review for clear error. See

United States v. Flanagan, 80 F.3d 143, 145 (5th Cir. 1996).

The record reveals that Orozco had not provided the name of

the individual who approached him to drive the car containing the

cocaine or the names of the people following him in another car.

It is plausible that Orozco did know the names or other

information about the other individuals. In any event, he did

not communicate to the Government that he did not know the

identities of the other individuals. See United States v.

Flanagan, 80 F.3d 143, 145 (5th Cir. 1996)(citing with approval

United States v. Rodriguez, 69 F.3d 136 (7th Cir. 1995)). Orozco

did not meet his burden of credibly demonstrating that he

provided the Government with all of the information that he could

reasonably be expected to possess. See United States v. Miller,

179 F.3d 961, 968 (5th Cir. 1999). Therefore, Orozco has not

demonstrated that the district court’s determination that Orozco

was not entitled to the safety-valve provision was implausible in

light of the entire record. See United States v. Davis, 76 F.3d

82, 84 (5th Cir. 1996).

Orozco also argues that Apprendi v. New Jersey, 530 U.S. 466

(2000), overruled previous jurisprudence holding that drug

quantity was a sentencing factor and not an element of the No. 02-41392 -3-

offense and that the court cannot rewrite 21 U.S.C. § 841 to

correct its unconstitutionality. Therefore, Orozco argues that,

even under plain-error review, that statute must be stricken as

unconstitutional. As Orozco acknowledges, his argument is

foreclosed by United States v. Slaughter, 238 F.3d 580, 582 (5th

Cir. 2000), but he raises it here to preserve it for further

review. Accordingly, the district court’s judgment is AFFIRMED.