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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-40423 -2-

under the “safety valve” sentencing provisions. U.S.S.G. § 5C1.2

and

(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,

(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.

** 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),

.