United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 97-4354 ___________

United States of America, * * Appellee * * Appeal from the United States v. * District Court for the * District of Nebraska. Luis J. Garcia-Florido, * * [UNPUBLISHED] Appellant. *

___________

Submitted: May 13, 1998 Filed: September 1, 1998 ___________

Before BEAM, HANSEN, and MURPHY, Circuit Judges. ___________

PER CURIAM.

Luis Garcia-Florido appeals his sentence following a plea of guilty to drug offenses. He contends that the district court erred in refusing to grant him relief under the safety valve provisions of the Mandatory Minimum Sentencing Reform Act, 18 U.S.C. § 3553(f) and U.S. Sentencing Guidelines Manual § 5C1.2(5). We affirm.

Under the safety-valve exception to statutory minimum sentences, a defendant may be given a more lenient sentence within the otherwise applicable guideline range if, among other things, the defendant "truthfully provide[s] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." U.S.S.G. § 5C1.2(5); see also United States v. Weekly, 118 F.3d 576, 581 (8th Cir. 1996), dissent modified, 128 F.3d 1198 (8th Cir. 1997), cert. denied, 118 S. Ct. 611 (1997). A defendant has the burden to show, through affirmative conduct, that he has given the government truthful information and evidence about the relevant crimes before sentencing. See id. We review for clear error the district court's finding that Garcia- Florido did not satisfy that burden. See id.

The district court found that Garcia-Florido had not truthfully provided the government with such information. That finding was based on Garcia-Florido's testimony at the trial of his co-conspirator, Raul Ramirez. In our view, Garcia- Florido's testimony in the Ramirez trial strains credulity. The district judge had presided over the Ramirez trial and had an opportunity to observe Garcia-Florido's testimony and demeanor. We find no clear error in the district court's failure to credit Garcia-Florido's testimony.

Accordingly, Garcia-Florido's sentence is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-2-