* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20188

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JUAN ANGEL LOPEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CR-446-1

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Juan Angel Lopez pleaded guilty to one count of conspiracy to possess with

intentto distribute 1000 kilograms or more of marijuana and one count of aiding

and abetting possession with intent to distribute 1000 kilograms or more of

marijuana. Lopez’s presentence report (PSR) noted that Lopez did not appear

to qualify for a reduction under U.S.S.G. § 5C1.2, the guidelines safety valve

provision, because he had not been debriefed. Lopez objected to this paragraph

of the PSR and requested the opportunity to be debriefed. At sentencing, Lopez

United States Court of Appeals

Fifth Circuit

F I L E D

July 14, 2008

Charles R. Fulbruge III

Clerk
No. 07-20188

2

asserted that he was debriefed. The Government stated that the debriefing had

not been truthful. Lopez acknowledged the Government’s position. Lopez did

not request a hearing on the matter or dispute the finding that he had not been

truthful. The district court overruled all objections to the PSR and sentenced

Lopez to 120 months of imprisonment, five years of supervised release, and a

$100 special assessment.

Lopez argues that the district court erred by failing to hold an evidentiary

hearing into the truthfulness of the information provided to the Government by

Lopez. Lopez’s failure to request a hearing or object to the district court’s factual

finding without a hearing limits appellate review to the plain-error standard.

See United States v. Ochoa-Cruz, 442 F.3d 865, 866-67 (5th Cir. 2006). As Lopez

was given the opportunity to review and object to the PSR he has not shown

error, plain or otherwise.

Lopez argues that the district court erred in determining that he did not

qualify for the safety valve adjustment because his debriefing had not been

truthful. After United States v. Booker, 543 U.S. 220 (2005),this court continues

to apply the pre-Booker clearly erroneous standard of review to a district court’s

factual findings pertaining to sentencing adjustments such as the safety valve.

See United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005); see also

United States v. Miller, 179 F.3d 961, 963-64 (5th Cir. 1999).

Pursuant to U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), a defendant who

provides information to the Government may escape the imposition of a

statutory minimum sentence ifthe district courtfinds that he meets five criteria.

United States v. Lopez, 264 F.3d 527, 529-30 (5th Cir. 2001); see also U.S.S.G.

§ 2D1.1(b)(11) (providing two-level reduction offense level if defendant meets five

criteria set forth in § 5C1.2). The fifth criterion, the only one at issue here,

requires that “the defendant has truthfully provided to the Government all

information and evidence the defendant has concerning the offense.”

§ 5C1.2(a)(5); see also § 3553(f)(5). The defendant has the burden of showing
No. 07-20188

3

eligibility for the safety-valve reduction, including the burden of showing that

he truthfully provided the Government with all relevant information. United

States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996).

In this case, the Government asserted that Lopez had not been truthful

during debriefing. Lopez did not dispute this assertion at sentencing or attempt

to present any contrary evidence to carry his burden of proving that he had

provided true information. On appeal, Lopez does not assert unequivocally that

he had been truthful and has failed to cite any evidence that he could present to

show that he had told the truth when debriefed. Lopez has not shown that the

district court was clearly erroneous in its factual finding that he was not eligible

for the relief under the safety valve provisions of the Sentencing Guidelines.

Lopez’s sentence is AFFIRMED.