United States of America, Plaintiff-appellee, v. Emilio Ernesto Cornejo, Defendant-appellant, 141 F.3d 1180 (9th Cir. 1998)

MEMORANDUM^* 

Emilio Ernesto Cornejo appeals his 120-month sentence imposed following his guilty plea conviction for conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a) and 846, possession of a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841, and for fraud and misuse of immigration documents in violation of 18 U.S.C. § 1546. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Cornejo contends that the district court erred in finding him ineligible for sentencing under the safety valve provision, 18 U.S.C. § 3553(f). We disagree.

Factual findings made by the district court in deciding whether to apply the safety valve provision are reviewed for clear error. See United States v. Shrestha, 86 F.3d 935, 938 (9th Cir. 1996). It is the defendant's burden to establish by a preponderance of the evidence that he is eligible for sentencing under the safety valve provision. See id. at 940. On the record before us, we cannot say that the district court clearly erred in finding that Cornejo failed to carry his burden of proof that he had made the truthful disclosure required by section 3553(f) (5). See 18 U.S.C. § 3553(f) (5) (Supp.1997); United States v. Washman, 128 F.3d 1305, 1307-08 (9th Cir. 1997); United States v. Ajugwo, 82 F.3d 925, 929-30 (9th Cir. 1996), cert. denied, --- U.S. ----, 117 S. Ct. 742, 136 L. Ed. 2d 680 (1997). Furthermore, the district court adequately explained its reasons for denying relief under the safety valve provision. See United States v. Real-Hernandez, 90 F.3d 356, 360 (9th Cir. 1996).

AFFIRMED.