IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50431

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

REYNALDO TORRES-DE LA CRUZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:08-CR-440-1

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

In accordance with a written agreement that contained a waiver of his

appellate rights, Reynaldo Torres-De La Cruz pleaded guilty to one charge of

importing more than five kilograms of cocaine and was sentenced to serve 120

months in prison and a five-year term of supervised release. He appeals his

sentence, arguing that the district court erred by denying his request for a safety

valve adjustment pursuant to U.S.S.G. § 5C1.2, that the prosecutor breached the

plea agreement by making statements concerning application of the safety valve,

United States Court of Appeals

Fifth Circuit

F I L E D

March 3, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-50431 Document: 00511400612 Page: 1 Date Filed: 03/03/2011
No. 10-50431

and that the prosecutor committed misconduct by not giving him protection or

reassurances that his cooperation would be rewarded. Additionally, he avers

that the Government should be required to show that defendants have had a fair

chance to earn the safety valve reduction. Our review of the record and

pertinent caselaw shows that these contentions are unavailing.

The rearraignment transcript shows that Torres-De La Cruz freely and

knowingly waived his appellate rights, and his claim concerning the district

court’s rejection of his request for a safety valve adjustment falls squarely within

the category of claims covered by the waiver. See United States v. Bond, 414

F.3d 542, 544 (5th Cir. 2005). Accordingly, we decline to consider this claim.

Insofar as Torres-De La Cruz argues that the prosecution breached the

agreement, this claim survives the waiver. See United States v. Roberts, 624

F.3d 241, 244 (5th Cir. 2010). Nevertheless, this argument, which is reviewed

for plain error only, is unavailing because the record reflects that the

Government complied with the plain language of the agreement and that the

disputed adjustment was denied because the district court found that Torres-De

La Cruz did not qualify for it. See United States v. Reeves, 255 F.3d 208, 210

& n.2 (5th Cir. 2001).

Torres-De La Cruz’s arguments concerning prosecutorial misconduct fail

because he has not shown the prosecutor acted improperly or took action that

rendered the proceedings unfair. See Smith v. Phillips, 455 U.S. 209, 219 (1982).

His claim concerning the Government’s burden is unworthy of relief because it

is contrary to jurisprudence holding that the defendant has the burden of

proving his eligibility for the safety valve reduction, including showing that he

truthfully provided the Government with all relevant information. See Smith,

455 U.S. at 219; United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996).

The judgment of the district court is AFFIRMED.

2

Case: 10-50431 Document: 00511400612 Page: 2 Date Filed: 03/03/2011