Opinion
NOT FOR PUBLICATION
Submitted March 8, 2006 Seattle, Washington
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Appeal from the United States District Court for the Western District of Washington, D.C. No. CR-04-00402-2-TSZ, Thomas S. Zilly, District Judge, Presiding
Before: O§SCANNLAIN, SILVERMAN, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Jorge Ibarra-Hernandez appeals his sentence for his guilty-plea conviction for conspiracy to distribute cocaine and possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B) and 846. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review for clear error the district court§s factual finding that a defendant is ineligible for safety-valve relief, United States v. Washman, 128 F.3d 1305, 1307 (9th Cir. 1997), and affirm.
Ibarra-Hernandez has the burden of proving by a preponderance of the evidence that he is eligible for safety-valve relief. United States v. Diaz-Cardenas, 351 F.3d 404, 409 (9th Cir. 2003). If he establishes eligibility, the government may rebut the showing with evidence that the information is untrue or incomplete. Id . We have already rejected Ibarra-Hernandez§s argument that facts allowing a decreased sentence below the statutory minimum must be found beyond a reasonable doubt. See United States v. Labrada-Bustamante, 428 F.3d 1252, 1263 (9th Cir. 2005).
Ibarra-Hernandez argues that the district court clearly erred by finding that he failed to establish under 18 U.S.C. § 3553(f)(5) that he truthfully provided all of the information he had regarding the offense. However, Ibarra-Hernandez§s testimony at sentencing was inconsistent with previously admitted facts that formed the basis of his plea, law enforcement officers§ observations of the crime, and co-defendant admissions. Therefore, the district court did not clearly err in finding Ibarra-Hernandez ineligible for safety-valve relief. In addition, the district judge made it clear that he would impose a 60-month sentence even if the mandatory minimum did not apply. AFFIRMED.