614 F. App'x 218
5th Cir.
2015

AVIC INTERNATIONAL USA, INCORPORATED, Plaintiff-Appellant v. TANG ENERGY GROUP, LIMITED; Keith P. Young; Mitchell W. Carter; Jan Family Interests, Limited; The Nolan Group, Incorporated, Defendants-Appellees.

No. 15-10190

United States Court of Appeals, Fifth Circuit.

Aug. 25, 2015.

614 F. App‘x 218

Summary Calendar.

Malcolm S. McNeil, Esq., Senior Litigation Attorney, David G. Bayles, Esq., Arent Fox, L.L.P., Los Angeles, CA, Paul Ming Ma, Esq., Law Offices of Paul Ming Ma, City of Industry, CA, Robert Elwood Sheeder, Esq., Bracewell & Giuliani, L.L.P., Dallas, TX, for Plaintiff-Appellant.

Robert Crofford Jenevein, Brent Alan Turman, Vincent Lopez Serafino Jenevein, P.C., James Allen Moseley, Esq., Gray Reed & McGraw, P.C., Jeffrey Scott Lowenstein, Wendy Ann Duprey, Jesse Allan Okiror, Bell, Nunnally & Martin, L.L.P., David T. Denney, Ashley N. Ahn, Law Office of David T. Denney P.C., Deborah Michelle Perry, Munsch, Hardt, Kopf & Harr, P.C., John McCasland Clement, Esq., Counsel, Clement Legal Services, P.C., Dallas, TX, Brandi Jo Mckay, Scheef & Stone, L.L.P., Frisco, TX, David S. Vassar, Nesbitt, Vassar & McCown, L.L.P., Addison, TX, for Defendant-Appellee.

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant AVIC International USA, Incorporated (“AVIC“), one of two original plaintiffs in the district court,1 seeks reversal of the district court‘s Judgment of February 5, 2015, which dismissed those plaintiffs’ motion to stay the arbitration that was already pending before the American Arbitration Association (“AAA“), but had not yet commenced. The district court dismissed their action after concluding that, under the Federal Arbitration Act (“FAA“), it did not have jurisdiction to consider AVIC‘s claims that the arbitration panel, as selected and presently existing, “deviates” from the arbitration provisions of the parties’ agreement and fails to meet the constitutional requirement of impartiality. The court ruled that it could not address such complaints before the arbitration panel renders its decision.

Our review of the district court‘s Memorandum Opinion and Order and the record on appeal, including the briefs of the parties, and their excerpts, satisfies us that the district court ruled correctly, committing no error—reversible or otherwise. The agreement at issue was entered into by sophisticated and experienced parties on advice of highly qualified counsel; that agreement contains their carefully crafted arbitration provision; one or more of the parties validly invoked arbitration in compliance with that provision; several of the parties to the agreement—not just two “sides“—followed by appointing one arbitrator each; and, as noted, arbitration is now before the panel comprising those arbitrators and is presumably proceeding pursuant to the rules and procedures of the AAA.

As noted by the district court, AVIC has failed to demonstrate that, as it claims, there has been a “lapse” in the appointment of arbitrators. In BP Exploration Libya Ltd. v. ExxonMobil Libya, Ltd., 689 F.3d 481, 491-92 (5th Cir. 2012),2 we defined that term as “a lapse in time in the naming of the arbitrator or in the filling of a vacancy on a panel of arbitrators, or some other mechanical breakdown in the arbitrator selection process.” AVIC‘s allegations do not identify any occurrences that meet that definition. Simply put, when its position is reduced to its bare essentials, AVIC is asking us to rewrite their agreement‘s arbitration provision to require that every arbitration among these multiple parties comprise only two “sides.” It is apparent from the plain wording of that provision, however, that the agreement contemplates the possibility of there being three or more “sides” among the several parties to the agreement. More to the point, AVIC‘s strained interpretation of the arbitration provision would mandate that there be precisely three arbitrators in any and every instance, no more and no fewer—one selected by one “side,” a second selected by the other “side,” and the third selected by the first two. The unambiguous wording of the arbitration provision eschews such a reading: The agreement expressly contemplates the possibility of (1) an even number of arbitrators (an impossibility under AVIC‘s proposed, three-only arbitrators interpretation) and (2) adding either one or two more arbitrators to achieve an odd number (also an impossibility under a three-only arbitrator situation).

All that aside, we agree with the analysis of the district court and its conclusions that at this stage of the ongoing arbitration proceedings, a stay to deal with the issues advanced by AVIC would be premature, and that any resolution of AVIC‘s objections to the makeup of the arbitration panel must await completion of the arbitration process. For essentially the reasons expressed by the district court, its Judgment is, in all respects,

AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee, v. Huber BENITEZ-ALVARADO, Defendant-Appellant.

No. 14-11261

United States Court of Appeals, Fifth Circuit.

Aug. 25, 2015.

614 F. App‘x 220

Summary Calendar.

James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney‘s Office, Dallas, TX, for Plaintiff-Appellee.

Donald Lee Bailey, Sherman, TX, for Defendant-Appellant.

Huber Benitez-Alvarado, FCI Fort Worth Unit, Fort Worth, TX, pro se.

Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.

PER CURIAM:*

Huber Benitez-Alvarado (Benitez) appeals the 135-month sentence imposed following his guilty plea conviction for conspiracy to possess with intent to distribute a controlled substance. Finding no error, we affirm.

First, Benitez argues that the district court erred by declining to apply the two-level safety valve reduction pursuant to U.S.S.G. § 2D1.1(b)(17) and U.S.S.G. § 5C1.2. We review the district court‘s decision whether to apply the safety valve reduction for clear error. United States v. McElwee, 646 F.3d 328, 345 (5th Cir. 2011).

Section 2D1.1(b)(17) prescribes that a defendant is eligible for a two-level reduction, commonly called a safety valve reduction, if he satisfies the five criteria set forth in § 5C1.2(a)(1)-(5). § 2D1.1(b)(17). The fifth criterion, the only pertinent issue here, requires that, by the time of the sentencing hearing, the defendant must have “truthfully provided the Government all information and evidence the defendant has concerning the offense.” § 5C1.2(a)(5). The defendant has the burden of establishing his eligibility for the safety valve reduction, including the burden of showing that he truthfully provided the Government all information and evidence about the offense. United States v. Flanagan, 80 F.3d 143, 145-47 (5th Cir. 1996).

The record supports a conclusion that Benitez did not truthfully provide all relevant information. See Flanagan, 80 F.3d at 145-47; McElwee, 646 F.3d at 345. After his arrest, Benitez initially claimed that a stranger gave him $400 to deliver a soda box that turned out to contain methamphetamine. He later admitted that he

Notes

1
Plaintiff Paul Thompson filed a motion for discovery but has not joined AVIC as an Appellant to this court.
*
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. 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.