Case: 13-40694      Document: 00512616771         Page: 1    Date Filed: 05/02/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                    No. 13-40694                                   FILED
                                  Summary Calendar                              May 2, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARTIN MALTA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:12-CR-1020-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Martin Malta appeals his sentence following his guilty plea conviction
for possession with intent to distribute more than five kilograms of cocaine.
He challenges the district court’s denial of the safety valve under U.S.S.G.
§ 5C1.2 and the related adjustment under § 2D1.1(b)(16). The district court
found that he failed to provide truthful and complete information to the
Government about his offense, as required under § 5C1.2(a)(5).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-40694

      Malta, who worked as a truck driver, informed the Government that a
man he had never seen before approached him in front of his house and
threatened harm to his family unless he transported nearly 20 kilograms of
cocaine across the border checkpoint. According to Malta’s information, the
man left after giving Malta the cocaine, telling Malta only that he would be
followed and signaled to pull over for return of the cocaine after he crossed the
checkpoint.   Malta stated that the man approached him just as he was
prepared to pick up a load he was already scheduled to transport across the
checkpoint for his company.
      The defendant has the burden of establishing eligibility for the safety
valve, including the burden of showing that he has truthfully provided the
Government with all the information and evidence he has about the offense.
United States v. Flanagan, 

, 146-47 (5th Cir. 1996). We review for
clear error a district court’s finding that the defendant has not provided
truthful and full disclosure as required under § 5C1.2(a)(5). United States v.
McCrimmon, 

, 457-58 (5th Cir. 2006).           The district court’s
credibility determinations are entitled to deference. United States v. Juarez-
Duarte, 

, 208 (5th Cir. 2008).
      Malta contends that the district court clearly erred in denying the safety
valve given that the Government did not offer any evidence contradicting his
version of events. Citing United States v. Miller, 

, 968 (5th Cir.
1999), Malta asserts that a finding of untruthfulness must be based on more
than pure speculation. The district court heard testimony both from Malta and
the special agent with whom Malta debriefed and found that the version of
events Malta provided the Government, particularly the fact that an unknown
man gave Malta such a large quantity of cocaine with such high street value
without exchanging any contact information, was unbelievable or incomplete.



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    Case: 13-40694     Document: 00512616771      Page: 3   Date Filed: 05/02/2014


                                  No. 13-40694

      Malta disputes the value of the cocaine he was given, asserting that the
production of cocaine is an inexpensive process even though its retail price is
high. He also faults the district court’s questioning of why he did not confront
the unknown man and call law enforcement when approached at his house.
A factual finding is not clearly erroneous if it is plausible in view of the record
as a whole. United States v. Ruiz, 

, 396 (5th Cir. 2010). Malta
has not shown that the district court’s finding was clearly erroneous. See

.
      AFFIRMED.




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