BENTON, Circuit Judge.
Diana Belinda Gamboa pled guilty to one count of conspiring to distribute (and to possess with intent to distribute) methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court
Gamboa gave information to law enforcement under a proffer agreement. After initially pleading guilty, she moved to withdraw her plea, but then withdrew her motion at sentencing. The district court denied a safety-valve reduction under 18 U.S.C. § 3553(f), finding that she was a "supervisor" under USSG § 3B1.1(c) and that she gave incomplete and false information in her proffer.
Gamboa argues that the district court should have granted safety-valve relief. "The district court's factual findings, including its determination of a defendant's role in the offense, are reviewed for clear error, while its application of the guidelines to the facts is reviewed de novo." United States v. Gaines, 639 F.3d 423, 427-28 (8th Cir.2011).
Gamboa must meet five criteria for safety-valve relief. United States v. Alvarado-Rivera, 412 F.3d 942, 944-45 (8th Cir. 2005) (en banc). At issue are the last two requirements:
Gamboa contends that the district court erred in finding that she was a supervisor of the conspiracy. See
According to the testimony here, Gamboa directed a co-conspirator to buy seven ounces (almost 200 grams) of meth. Cf. United States v. Vega, 676 F.3d 708, 715, 721 (8th Cir.2012) (holding that 8.6 grams of meth was a distribution amount); United States v. Atkinson, 85 F.3d 376, 378 (8th Cir.1996) ("[B]y merely selling a controlled substance to an individual [for personal use], the seller [does not] ... necessarily become[] the manager or supervisor of the buyer."). A number of times, Gamboa directed another man to sell meth and then collected the money from him. Thus, she "control[led] another participant in [the] drug trafficking offense." Cole, 657 F.3d at 687; Lopez, 431 F.3d at 318 (upholding enhancement where the defendant asked his roommate "to serve as a lookout on one occasion").
Gamboa attacks the credibility of the government's witnesses. "Credibility determinations... are virtually unreviewable on appeal ... and [the district court may choose] between two permissible views of the evidence...." United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir. 2008). The district court did not clearly err in finding Gamboa was a supervisor of the conspiracy and denying safety-valve relief.
Gamboa also claims that the district court erred in denying her an opportunity to withdraw her guilty plea. The government contends that by withdrawing her motion to withdraw her guilty plea, she waived her right to raise this argument on appeal, because she "intentional[ly] relinquish[ed] ... a known right." United States v. Harrison, 393 F.3d 805, 806 (8th Cir.2005), quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). "Only when the right is inadvertently left unasserted is the defendant saved by Rule 52(b)'s plain error
At the sentencing hearing, the court explained to Gamboa the consequences of withdrawing her guilty plea and then recessed to allow her to consult with counsel. After the recess, defense counsel said they had discussed the "difficult likelihood of success" if she withdrew her guilty plea. He then stated:
The government did not object. The court engaged in a colloquy with Gamboa on these issues. She repeatedly affirmed her desire to withdraw her motion. Thus, Gamboa knowingly and voluntarily withdrew her motion and "is precluded from arguing [her claim] on appeal." Id.
The judgment of the district court is affirmed.