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The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2985

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * District of Nebraska.

*

David L. Malone, * [UNPUBLISHED]

*

Appellant. *

___________

Submitted: April 16, 2002

Filed: April 22, 2002

___________

Before BOWMAN, RILEY, and MELLOY, Circuit Judges.

___________

PER CURIAM.

David Malone appeals the 120-month sentence imposed by the District Court1

after he pleaded guilty to one count of conspiracy to distribute methamphetamine and

cocaine. See 21 U.S.C. § 846 (1994). He argues that the court erroneously concluded

that he did not qualify for safety-valve relief under the provisions of 18 U.S.C.

§ 3553(f) (1994 & Supp. V 1999) and U.S. Sentencing Guidelines Manual (U.S.S.G.)

§ 5C1.2 (2000). We affirm.
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Based upon Malone's criminal history (category I) and offense level (31), his

guideline sentencing range fell within 108 to 135 months. Because the drug quantity

attributed to Malone mandated a 120-month statutory minimum sentence, Malone

requested relief under the safety-valve provisions in 18 U.S.C. § 3553(f) and U.S.S.G.

§ 5C1.2, which allow the court, in certain instances, to impose a sentence below the

statutory minimum. To qualify for this relief, Malone agreed to cooperate and reveal

all information within his knowledge regarding the drug conspiracy. Before

sentencing, Malone met with a government investigator and took a polygraph exam.

At the conclusion of the sentencing hearing, during which the District Court

heard testimony from Malone and the government investigator, and received the

report from Malone's polygraph examination (which stated he had been deceptive in

his answers), the court determined that Malone had not "truthfully provide[d] 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(5). The court denied Malone the benefit of the safety-valve

provision and sentenced him to 120 months. Malone argues that the District Court

clearly erred because it inadequately considered the effect of Malone's memory

problems and learning disability on his ability to recall the facts of the conspiracy and

because the court gave too much weight to the polygraph results. Malone bears the

burden of showing that he meets the requirements of § 5C1.2, see United States v.

Rios, 171 F.3d 565, 567 (8th Cir. 1999), and we review for clear error the court's

determination that Malone did not carry this burden, see United States v. Romo, 81

F.3d 84, 85 (8th Cir. 1996).

At the sentencing hearing, Malone testified that he told the investigator

everything he knew about the conspiracy. He also asserted that he suffered from

memory loss and a learning disability that limited his ability to recount past events,

but he did not substantiate these claims with any medical records or other reports. In

contrast, the government investigator testified that Malone's statements to him
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conflicted in significant ways with information obtained from other participants and

investigating officers. Moreover, the investigator testified that he had to "pry"

information from Malone. In rejecting Malone's testimony, the District Court found

the government investigator to be highly credible, a determination that is "virtually

unreviewable" on appeal. United States v. Candie, 974 F.2d 61, 64 (8th Cir. 1992).

It was not clear error for the District Court to credit the testimony of the investigator

over that of Malone and to conclude that Malone had not fully disclosed his

knowledge of the conspiracy.

Although the District Court indicated that the polygraph report buttressed the

investigator's conclusion that Malone had not fully revealed his knowledge of the

conspiracy, we conclude that the testimony at the hearing provides a sufficient basis,

without relying on the polygraph report, to determine that Malone did not meet his

evidentiary burden. See United States v. Weekly, 118 F.3d 576, 581 (8th Cir.)

(holding that a conflict in the evidence is, standing alone, "independent evidence to

support the district court's finding that [the defendant] had not truthfully provided all

information that she had concerning the offense"), cert. denied, 522 U.S. 1020 (1997);

cf. Ortega v. United States, 270 F.3d 540, 547 (8th Cir. 2001) (reversing obstructionof-justice enhancement imposed solely upon evidence of failed polygraph

examination). In any event, because Malone did not object to the admission of the

polygraph report, we review its admission for plain error. See United States v.

Poulack, 236 F.3d 932, 937 (8th Cir.), cert. denied, 122 S. Ct. 148 (2001). Because

we conclude that the report did not "prejudicially influence[] the outcome of the

district court proceedings," we see no basis upon which to disturb the District Court's

sentencing decision. United States v. Beasley, 102 F.3d 1440, 1452 (8th Cir. 1996),

cert. denied, 520 U.S. 1246 (1997).
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.