                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                      UNITED STATES COURT OF APPEALS October 29, 2010

                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court



 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,
                                                           No. 09-2312
 v.                                               (D.C. No. 1:08-CR-00823-JB-2)
                                                             (D. N.M.)
 ROBERTO DUARTE SNYDER,

        Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before KELLY, EBEL, and LUCERO, Circuit Judges.


      Roberto Duarte Snyder appeals his conviction and sentence imposed for violation

of 21 U.S.C. §§ 841(b)(1)(A) and 846. Synder’s appointed appellate counsel filed an

Anders brief, seeking permission to withdraw as counsel because the appeal is “wholly

frivolous.” Anders v. California, 386 U.S. 738, 744 (1967). Exercising jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we grant counsel’s motion to withdraw

      * The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 32.1.
and dismiss the appeal.

                                             I

       In April 2008, Snyder was indicted on one count of conspiracy to possess with

intent to distribute five kilograms or more of cocaine and one count of possessing with

intent to distribute five kilograms or more of cocaine. In exchange for Snyder’s guilty

plea on the conspiracy count, the government successfully moved for the dismissal of the

possession count. A probation officer then prepared a Presentence Investigation Report

(“PSR”) calculating Snyder’s base offense level as 32 but recommending a three-level

downward adjustment for acceptance of responsibility pursuant to United States

Sentencing Guideline (“U.S.S.G.”) § 3E1.1. The PSR initially recommended that the

court apply the safety-valve provisions of U.S.S.G. § 5C1.2(a), which would have saved

Snyder from a ten-year mandatory minimum sentence, see 21 U.S.C. § 841(b)(1)(A).

After the government argued that Snyder failed to fully and truthfully provide the

government with details about the offense, however, the probation officer removed the

PSR’s discussion of safety-valve eligibility pending an evidentiary hearing.

       In advance of the evidentiary hearing, Snyder and a co-defendant submitted a joint

sentencing declaration detailing their involvement in the offense. The declaration stated

that an “old man” recruited Snyder to transport drugs in exchange for a place to live,

money, and drugs. It further stated that unnamed individuals called Snyder to arrange for

the transportation of drugs. All exchanges of drugs and money purportedly took place

inside Snyder’s vehicle, when Snyder was not present. The joint declaration provided

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neither details about the old man’s appearance nor any description of the individuals who

called Snyder or made the drug exchanges. Snyder did not meet with officials to

supplement his statement with further details, even after the district court indicated that

the joint declaration might be insufficient to qualify him for the safety-valve exception.

       After hearing evidence on the matter, the district court concluded Snyder was not

entitled to the safety-valve exception. It explained:

       The Court does not expect Mr. Snyder necessarily to be able to identify the
       old man or the various “persons unknown” that appear throughout the
       declaration, but Mr. Snyder likely could have provided more information
       about them. For example, he could have at least given a physical
       description of the old man or some other information that might help to
       identify him. And he could have provided more information about the
       unknown persons who had Mr. Snyder contact the old man in the first
       place. Even if Mr. Snyder could not name these persons, he could have
       explained the circumstances in which he spoke with them, why they might
       have told him to contact the old man, and why Mr. Snyder was talking with
       them and decided to call the old man. The declaration is riddled with other
       examples of persons unknown, without a sliver of identifying information
       about any of them. . . . The deficiency of Mr. Snyder’s proffer . . . is
       apparent on its face.

The court sentenced Snyder to ten years’ imprisonment. Snyder filed a timely notice of

appeal.1

                                             II

       Under Anders, if an attorney examines a case and determines that any appeal


       1
         Although the district court’s judgment is dated July 8, 2009, it did not rule on the
government’s objection to the application of the safety-valve exception—and therefore
the judgment was not final—until December 15, 2009. Thus, Snyder’s notice of appeal,
filed on December 22, 2009, was timely. See Fed. R. App. P. 4(b)(1)(A) (2009)
(amended 2010).

                                             -3-
would be “wholly frivolous,” counsel may “so advise the court and request permission to

withdraw.” 386 U.S. at 744. Counsel must submit a brief to both the appellate court and

the client, pointing to anything in the record that could potentially present an appealable

issue. Id. The client may then offer supplemental argument to the court. Id. If, upon

close examination of the record, the court determines that the appeal is frivolous, it may

grant counsel’s request to withdraw and dismiss the appeal. Id. In this case, counsel

served Snyder with a copy of the appellate brief, and Snyder did not file a response.

       The record reveals that the only arguably appealable issue is whether the district

court improperly denied Snyder a safety-valve exception. We review for clear error a

district court’s determination that a defendant is ineligible for the safety-valve exception.

United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006). We agree with

counsel that any argument that the district court clearly erred is wholly without merit.

       The Guidelines provide: “[T]he court shall impose a sentence in accordance with

the applicable guidelines without regard to any statutory minimum sentence, if the court

finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5).” U.S.S.G.

§ 5C1.2(a). “The defendant bears the burden of proving by a preponderance of the

evidence that he is entitled to the safety-valve adjustment.” Stephenson, 452 F.3d at

1179. The district court determined that Snyder failed to demonstrate he had “truthfully

provided to the Government all information and evidence the defendant ha[d] concerning

the offense or offenses that were part of the same course of conduct or of a common

scheme or plan” prior to his sentencing hearing. § 3553(f)(5). Consequently, he was not

                                             -4-
entitled to relief under U.S.S.G. § 5C1.2(a).

       To meet the strictures of § 3553(f)(5), Snyder’s “disclosure must not merely be

truthful but also complete.” Stephenson, 452 F.3d at 1180 (quotation and alteration

omitted). “Obvious informational gaps” can support a district court’s determination that

a defendant’s disclosure was incomplete. United States v. Altamirano-Quintero, 511

F.3d 1087, 1098 (10th Cir. 2007); see also Stephenson, 452 F.3d at 1180-81. The district

court did not clearly err in finding the obvious gaps in Snyder’s disclosures rendered

them incomplete.

                                            III

       For the foregoing reasons, we GRANT defense counsel’s motion to withdraw and

DISMISS the appeal.



                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




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