IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10804

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOSE EMMANUEL MORALES RITTINGGER, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 2:16-CR-53-2

Before KING, SOUTHWICK, and HO, Circuit Judges.

PER CURIAM:*

Defendant Jose Emmanuel Morales Rittingger was riding in a car that 

was pulled over on August 15, 2016, in Potter County, Texas. The trooper 

requested to search the vehicle and the driver, Joel Merida, consented. A 

subsequent search of the vehicle revealed over 44 pounds of heroin. Rittingger

later pled guilty to count one of the superseding indictment, which charged 

him with possession with intent to distribute one kilogram or more of heroin 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 16, 2018

Lyle W. Cayce

Clerk

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and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(i) and 

18 U.S.C. § 2. The district court later sentenced Rittingger to 121 months in 

prison. 

Rittingger appeals the district court’s denial of a mitigating-role 

adjustment under U.S. Sentencing Guidelines § 3B1.2, as well as the district 

court’s denial of safety-valve relief under U.S. Sentencing Guidelines § 5C1.2. 

The district court’s factual findings in each instance are reviewed for clear 

error. United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013); United 

States v. McElwee, 646 F.3d 328, 345 (5th Cir. 2011). “A factual finding is not 

clearly erroneous if it is plausible, considering the record as a whole.” United 

States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010) (citing United States v. Scher, 

601 F.3d 408, 413 (5th Cir. 2010)).

A mitigating-role adjustment under the U.S. Sentencing Guidelines is 

only appropriate, under this Court’s precedents, if a defendant is “peripheral”

to the advancement of an underlying conspiracy. See United States v. Porter, 

721 F.App’x 377 (5th Cir. 2018); accord United States v. Castro, 843 F.3d 608

(5th Cir. 2016). Here, the district court did not clearly err in determining, 

based on the record before it, that Rittingger did not act “peripheral[ly]” as part 

of the broader drug conspiracy. On the contrary, Rittingger was a key asset to 

the drug trafficking ring—he confirmed to federal agents that the drug cartel 

approached him in Mexico, directed him to pick up the car in New Mexico, and 

directed him to transport the large quantity of heroin to Chicago. Rittingger 

and Merida were necessary cogs of the drug conspiracy.

The district court similarly did not clearly err in denying safety-valve

relief. Under U.S. Sentencing Guidelines § 2D1.1(b)(17), a defendant is eligible 

for safety-valve relief if he satisfies five criteria set forth in U.S. Sentencing 

Guidelines § 5C1.2. U.S. Sentencing Guidelines § 5C1.2(a)(5), the only 

criterion relevant to this case, provides that, “not later than the time of the 

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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 . . . .” U.S.S.G. § 5C1.2(a)(5). But here, an Assistant U.S. Attorney 

testified that Rittingger was not credible or honest during a suppression 

hearing, and Rittingger makes no attempt to meaningfully rebut the Assistant 

U.S. Attorney’s testimony. There is also a plethora of barely contested 

additional evidence of Rittingger frequently changing his story to federal 

agents. Accordingly, the district court did not clearly err in denying safetyvalve relief.

The judgment of the district court is AFFIRMED.

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