                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         SEP 25 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 03-2034
 v.                                              (D.C. No. CR-00-1462 LH)
                                                     (D. New Mexico)
 ROBERTO VEGA-REY, also known
 as Robertico Vega,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McKAY and McCONNELL, Circuit
Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.




      *
       This order and judgment is not binding precedent, except under the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. 36.3.
      Mr. Vega-Rey was charged by second superceding indictment filed in the

United States District Court for the District of New Mexico with one count of

Conspiracy to Possess with Intent to Distribute 50 Grams or More of a Mixture

Containing Cocaine Base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), two

counts of Possession with Intent to Distribute Less Than 5 Grams of a Mixture

Containing Cocaine Base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and

one count of Possession with Intent to Distribute More Than 5 Grams of a

Mixture Containing Cocaine Base, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B). Before the second day of trial began, Appellant pled guilty to all four

charges against him. On the day Appellant was scheduled for sentencing,

Appellant requested a new attorney. The request was granted and sentencing was

continued. Sentencing was continued four different times. The trial court

subsequently sentenced Appellant to a term of 120 months of incarceration to be

followed by five months of supervised release.

      On appeal, Appellant claims that the district court sentenced him in

violation of the law or contrary to the Guidelines because the court did not make a

factual finding as to whether Appellant complied with the safety valve provision

set forth in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. We review the district

court’s decision not to apply 18 U.S.C. § 3553(f)’s safety valve provision for

clear error. United States v. Roman-Zarate, 115 F.3d 778, 784 (10th Cir. 1997).


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Section 3553(f) provides that, in cases involving an offense under the Controlled

Substances Act, the district court “shall impose a sentence . . . without regard to

any statutory minimum sentence if the court finds at sentencing” that the

defendant meets the five listed criteria. 2 Id.

      After reviewing the record and the briefs, we conclude that the district

court did not clearly err. It is undisputed that Appellant did not participate in a

debriefing with the Government revealing all evidence and information

concerning his offense as required by § 3553(f). Rec., Vol. IV, at 4-10. At

sentencing, Appellant’s counsel conceded that Appellant had not complied with


      2
          The five 18 U.S.C. § 3553(f) factors are:

              (1) the defendant does not have more than 1 criminal history
              point, as determined under the sentencing guidelines; (2) the
              defendant did not use violence or credible threats of violence
              or possess a firearm or other dangerous weapon (or induce
              another participant to do so) in connection with the offense;
              (3) the offense did not result in death or serious bodily injury
              to any person; (4) the defendant was not an organizer, leader,
              manager, or supervisor of others in the offense, as determined
              under the sentencing guidelines and was not engaged in a
              continuing criminal enterprise, as defined in section 408 of the
              Controlled Substances Act; and (5) not later than the time of
              the sentencing hearing, the defendant has truthfully provided
              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, but
              the fact that the defendant has no relevant or useful other
              information to provide or that the Government is already aware
              of the information shall not preclude a determination by the
              court that the defendant has complied with this requirement.

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the disclosure requirement and did not seek to cure the deficiency. Counsel for

the Government specifically requested that the district court query Appellant to

see if he wanted to debrief or not. Appellant stated that he did not wish to

debrief. Additionally, Government’s counsel stated that “I just want it to be on

record that it has been explained to him what safety valve is about and that he

hasn’t taken advantage of it.” Id. at 9. In response, Appellant’s counsel stated

that “if he were to debrief again, I don’t think he could provide any information

to change things.” Id.

      Since Appellant did not present evidence at sentencing that he had

complied with the safety valve requirements set forth in 18 U.S.C. § 3553(f), the

district court was required to impose the mandatory minimum sentence of 120

months. The district court was not required to make specific findings regarding

Appellant’s eligibility because Appellant failed to object to the factual findings in

the Presentence Report regarding his eligibility for safety valve relief. Id. at 14.

Appellant also did not indicate at any time during the sentencing hearing that he

wished the court to make a finding on the safety valve elements. Additionally,

the district court thoroughly queried Appellant about whether he wanted to

debrief, and Appellant indicated that he did not wish to do so. Appellant did not

lodge an objection at any point and indicated that he wished to proceed to

sentencing with full knowledge that the district court did not have the power to go


                                          -4-
below 120 months. There is no basis in the record for Appellant’s claim of error.

      For the reasons stated herein, the case is AFFIRMED.



                                              Entered for the Court


                                              Monroe G. McKay
                                              Circuit Judge




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