United States v. Padilla-Mota

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40423
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR PADILLA-MOTA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-99-CR-1090-1
--------------------
April 11, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges
PER CURIAM:*
Victor Padilla-Mota (“Padilla”), a Mexican citizen, appeals
his guilty-plea conviction for possession with intent to
distribute cocaine. He contends that statements he made to law
enforcement officers should have been suppressed because the
officers failed to advise him of his right to contact the Mexican
consul in compliance with Article 36 of the Vienna Convention on
Consular Relations. He also contends that the district court
committed clear error by applying the wrong standard to determine
whether he was entitled to a sentence below the statutory minimum

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No. 00-40423
-2-
** This court has recently held that suppression is not an
appropriate remedy for a violation of Article 36 of the Vienna
Convention. United States v. Jimenez-Nava, ___F.3d___, No. 99-
11300 (5th Cir. Feb. 26, 2001), 2001 WL 184578.
under the “safety valve” sentencing provisions. U.S.S.G. § 5C1.2
and 18 U.S.C. § 3553 (f).
Padilla pleaded guilty pursuant to a written plea agreement
in which he did not preserve his right to appeal the suppression
issue. Further, there is nothing in the record to indicate that
the defendant, the Government, and the court agreed that the plea
would be conditional under Fed. R. Crim. P. 11(a)(2). Padilla’s
plea was unconditional, and he waived his right to appeal the
suppression issue. United States v. Bell, 966 F.2d 914, 915-16
(5th Cir. 1992).**
The Government refused to recommend a safety-valve sentence
because it asserted that Padilla had not fully and truthfully
revealed relevant information concerning his crime. See U.S.S.G.
§ 5C1.2(5). The district court stated that it would review for
“clear error” the Government’s determination of Padilla’s
noncompliance with the safety-valve requirement. Padilla
contends that the correct standard of review was to determine
whether he had proven his truthful compliance by a preponderance
of the evidence. Regardless of the articulated standard, the
district court concluded that the Government’s decision was
“clearly correct” and indicated that Padilla had failed to show
his entitlement to a safety-valve sentence under any standard.
Accordingly, the conviction and sentence are AFFIRMED.

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