United States Court of Appeals

for the Fifth Circuit

No. 21-51046

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Cesar Alan Lujan-Gallardo, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:21-CR-723-1

Before King, Higginson, and Willett, Circuit Judges.

Per Curiam:*

Cesar Alan Lujan-Gallardo pleaded guilty to importation of five 

kilograms or more of cocaine and possession with intent to distribute five 

kilograms or more of cocaine. At sentencing, the district court found that 

Lujan-Gallardo was ineligible for a safety valve reduction under 

U.S.S.G. § 2D1.1(b)(18) because he did not provide the Government with a 

* This opinion is not designated for publication. See 5th Circuit Rule 47.5.

United States Court of Appeals

Fifth Circuit

FILED

December 8, 2022

Lyle W. Cayce

Clerk

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complete account of his offense and relevant conduct as required by 

U.S.S.G. § 5C1.2(a)(5). On appeal, he argues that the district court erred by 

finding that his safety valve statement was incomplete. 

We review the district court’s finding for clear error. United States v. 

McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006). When calculating the base 

offense level for drug offenses, § 2D1.1(b)(18) provides that: “If the 

defendant meets the criteria set forth in subdivisions (1) – (5) of subsection 

(a) of § 5C1.2 . . . decrease by 2 levels.” Additionally, for certain offenses, if 

a defendant satisfies the criteria of § 5C1.2(a), the safety valve provision, a 

court shall impose a sentence in accordance with the applicable guidelines 

without regard to any statutory minimum sentence. U.S.S.G. § 5C1.2(a). 

At issue is the fifth requirement of the safety valve provision: that “not 

later than the time of the sentencing hearing,” a defendant must “truthfully 

provide[] 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 . . . .” U.S.S.G. § 5C1.2(a)(5). At the 

sentencing hearing, Lujan-Gallardo stated that he had submitted a safety 

valve statement to the Government “a couple of days” earlier. He did not 

provide any detail as to the contents of this statement. The Government 

responded that the safety valve statement was not sufficient at this time, but 

noted that it had no objection to giving Lujan-Gallardo more time to respond 

to its request for additional information. Lujan-Gallardo did not request an 

extension, nor provide any other explanation as to why the proffered 

statement was already sufficient. Noting that it was “very rare” for the 

Government to say a safety valve statement is not complete and that the 

Government “accept[s] 99.9% of them,” the district court found that LujanGallardo’s statement was insufficient and that he failed to qualify for the 

safety valve provision. 

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Citing United States v. Lima-Rivero, 971 F.3d 518 (5th Cir. 2020), 

Lujan-Gallardo contends that the district court clearly erred in relying on the 

Government’s assertion that his statement was insufficient to find that the 

safety valve provision did not apply. In Lima-Rivero, the court reversed the 

denial of a safety valve reduction where the district court “misunderstood 

the legal standard” and “appeared to be under the impression that it lacked 

discretion to apply the reduction if the government was not satisfied that [the 

defendant] met the requirements.” Id. at 521. Yet here, the record reflects 

that the district court did not feel improperly bound by the Government’s 

position. Indeed, at the sentencing hearing Lujan-Gallardo raised LimaRivero to argue that the district court should reconsider its decision to not 

apply the safety valve reduction. The district court declined to do so, not 

because it felt bound by the Government’s position but because, given the 

rarity of Government rejections of proffered safety valve statements, it 

believed there must be a reason for this rejection. Because the district court 

simply found the Government’s position persuasive, rather than binding, 

Lima-Rivero is inapposite. 

Moreover, Lujan-Gallardo bears the burden of proving his eligibility 

for safety-valve relief. United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 

1996). Yet Lujan-Gallardo does not point to any evidence that could 

demonstrate that the statement he provided to the Government was 

complete, nor does he explain why he did not ask the district court for more 

time to provide additional information to the Government, even when the 

Government indicated that it would work with him to address any deficiency 

in his statement. As Lujan-Gallardo admits, the record before the district 

court regarding his safety valve statement was sparse. But Lujan-Gallardo 

was given the opportunity to correct this deficiency—indeed, the 

Government indicated that it would be amenable to rescheduling the 

sentencing hearing to allow time to work with Lujan-Gallardo to complete his 

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statement. Lujan-Gallardo, however, neither requested this extension nor 

put forward any more evidence as to why his statement should be considered 

complete. Put plainly, it was not clear error for the district court to find that 

Lujan-Gallardo’s bare assertion that his safety valve statement was 

satisfactory was enough to satisfy § 5C1.2(a). 

We do not address the merits of the other sentencing issues LujanGallardo raises on appeal. As he correctly concedes, in light of our decision 

to affirm the district court’s safety valve finding, his sentence would not be 

affected even if we were to resolve the remaining issues in his favor. See 

United States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994).

AFFIRMED. 

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