United States v. Hinojosa

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 28, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41133
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN ANGEL HINOJOSA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-125-1
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Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Martin Angel Hinojosa appeals his guilty-plea conviction and
sentence for possession with intent to distribute less than 50
kilograms of marijuana in violation of 21 U.S.C. §§ 2, 841 and 846.
Hinojosa challenges the district court’s refusal to apply the
“safety valve” provision, U.S.S.G. § 5C1.2, arguing that the
district court did not make an independent determination concerning
Hinojosa’s “truthfulness” in providing “to the Government all

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information and evidence [he had] concerning the offense or
offenses that were part of the same course of conduct or of a
common scheme or plan[.]” See U.S.S.G. § 5C1.2(a)(5).
The district court’s finding regarding Hinojosa’s truthfulness
for purposes of U.S.S.G. § 5C1.2(a)(5) is plausible in the light of
the record viewed in its entirety. See United States v. Davis, 76
F.3d 82, 84 (5th Cir. 1996). The district court did not substitute
Agent Martinez’ decision for its own; rather, the court acted well
within its wide discretion in finding Agent Martinez’ testimony
credible. See United States v. Edwards, 65 F.3d 430, 432 (5th Cir.
1995); United States v. West, 58 F.3d 133, 138 (5th Cir. 1995).
Therefore the district court did not clearly err in refusing to
apply the “safety valve” provision.
Hinojosa also argues that 21 U.S.C. § 841 is unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Hinojosa
correctly concedes that the issue is foreclosed by United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), and he raises it only
to preserve its further review by the Supreme Court. We are indeed
bound by our precedent absent an intervening Supreme Court decision
or a subsequent en banc decision. See United States v. Stone, 306
F.3d 241, 243 (5th Cir. 2002).
Accordingly, the judgment of the district court is AFFIRMED.

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