USA v. Leonard Durfey, II, No. 12-41374 (5th Cir. 2013)

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The court issued a subsequent related opinion or order on January 20, 2014.

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Case: 12-41374 Document: 00512477583 Page: 1 Date Filed: 12/19/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 12-41374 Summary Calendar FILED December 19, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. LEONARD ROSS DURFEY, II, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:11-CR-870-1 Before WIENER, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Defendant-Appellant Leonard Ross Durfey, II, appeals his sentence following a jury trial conviction for possession with intent to distribute more than 1,000 kilograms of marijuana. Durfey challenges the district court s finding that he was not entitled to a sentence reduction pursuant to U.S.S.G. § 5C1.2 because he did not truthfully provide the government with all relevant information concerning his offense. We review the district court s factual 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41374 Document: 00512477583 Page: 2 Date Filed: 12/19/2013 No. 12-41374 findings concerning a defendant s eligibility for a reduction under the § 5C1.2 safety valve for clear error. See United States v. McCrimmon, 443 F.3d 454, 457-58 (5th Cir. 2006). A defendant is eligible for a two-level reduction in the offense level if he meets the five criteria listed in the § 5C1.2 safety valve provision. U.S.S.G. § 2D1.1(b)(16). 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 18 U.S.C. § 3553(f)(5). The defendant has 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 district court made an independent determination that Durfey had not provided all relevant truthful information that qualified him for a sentence reduction under § 5C1.2. See McCrimmon, 443 F.3d at 457-58. That determination is not clearly erroneous in light of the fact that Durfey failed to provide information regarding the supplier of the marijuana he was transporting. See id. AFFIRMED. 2