                    Case: 11-15388         Date Filed: 08/23/2012   Page: 1 of 6

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15388
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 8:11-cr-00044-SCB-TBM-2


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                Plaintiff-Appellee,

                                                  versus

FEDERICO ROSAS,
a.k.a. Felix,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.
                                      ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________
                                       (August 23, 2012)

Before TJOFLAT, BARKETT and FAY, Circuit Judges.

PER CURIAM:

         Federico Rosas appeals his total 60-month sentence, imposed after pleading
              Case: 11-15388     Date Filed: 08/23/2012    Page: 2 of 6

guilty to conspiracy to possess with intent to distribute and distribute five grams or

more of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(viii)

(“Count 1”); aiding and abetting to distribute and possess with intent to distribute

five grams or more of methamphetamine, in violation of 21 U.S.C.

§ 841(b)(1)(B)(viii) and 18 U.S.C. § 2 (“Count 2”); and aiding and abetting to sell

a firearm to a convicted felon, in violation of 18 U.S.C. §§ 922(d)(1), 924(a)(2),

and 2 (“Count 3”). First, Rosas argues that the district court erred in finding that

he was ineligible for safety-valve relief under U.S.S.G. § 5C1.2, based on his

firearm possession and failure to comply with the government’s demand for

information. He claims that his possession of the gun was not “in connection

with” the drug offense, and that his affidavit truthfully disclosed all information he

had concerning the offenses before sentencing. Second, Rosas argues that the

court erred in imposing a two-level enhancement for possession of a firearm under

U.S.S.G. § 2D1.1(b)(1), because mere possession of a firearm is insufficient to

trigger the enhancement. Third, Rosas argues that the court erred in denying

Rosas a two-level reduction based on his minor role in the offense under U.S.S.G.

§ 3B1.2 because he was less culpable than the average participant.

                                          I.

      We review the factual findings concerning denial of safety-valve relief for

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clear error. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004). The

district court’s legal interpretation of the Sentencing Guidelines is reviewed de

novo. Id. The defendant bears the burden of proving his eligibility for

safety-valve relief. Id. at 1302.

      Under the safety-valve provision, the court may impose a sentence without

regard to the statutory minimum sentence if the following criteria are met: (1) the

defendant has not more than one criminal-history point; (2) the defendant did not

use violence, threats of violence, or possess a firearm or other dangerous weapon

in connection with the offense; (3) the offense did not result in death or serious

bodily injury; (4) the defendant was not a leader or supervisor; and (5) not later

than the time of sentencing, the defendant truthfully provided all information and

evidence to the government relevant to the offense. U.S.S.G. § 5C1.2(a)(1)-(5).

      The fifth requirement places on the defendant “an affirmative responsibility

to truthfully disclose to the government all information and evidence that he has

about the offense and all relevant conduct.” Johnson, 375 F.3d at 1302

(quotations omitted). If given notice that a defendant is willing to provide

information, the government is under no obligation to solicit such information

from the defendant. United States v. Milkintas, 470 F.3d 1339, 1345-46 (11th Cir.

2006).

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      In this case, Rosas fails to demonstrate his eligibility for safety-valve relief.

He did not debrief the government, and further declined an opportunity to testify

regarding the contents of an affidavit he filed the day before the sentencing

hearing. Thus, the court did not clearly err in finding that Rosas did not meet his

burden of showing complete and honest disclosure before sentencing. Because

Rosas did not meet the disclosure requirement of § 5C1.2(a)(5), we find it

unnecessary to decide whether Rosas possessed a firearm “in connection with” the

drug offense under § 5C1.2(a)(2).

                                          II.

      We review possession of a firearm for sentencing purposes for clear error.

United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). The Guidelines

provides for a two-level increase “[i]f a dangerous weapon (including a firearm)

was possessed . . . .” U.S.S.G. § 2D1.1(b)(1). We have held that “§ 2D1.1(b)(1)

requires the government to show by a preponderance of the evidence that the

firearm was present at the site of the charged conduct.” United States v. Cooper,

111 F.3d 845, 847 (11th Cir. 1997). The government is not required to prove that

the firearm was used to facilitate the distribution of drugs in order for the firearm

enhancement to apply, as mere presence is sufficient. United States v. Audain, 254

F.3d 1286, 1289 (11th Cir. 2001). If the government is successful in

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demonstrating proximity, the burden shifts to the defendant to show that a

connection between the firearm and the offense is clearly improbable. Id. Failure

to produce such evidence permits a district court to apply the enhancement without

committing clear error. United States v. Hall, 46 F.3d 62, 63-64 (11th Cir. 1995).

      Here, it is undisputed that the firearm was present at the site of the charged

conduct of the drug sale, and that Rosas personally delivered both items

simultaneously in the same transaction. Rosas fails to meet his burden of showing

the clear improbability of any connection between the firearm and the drug

offense. Thus, the court did not clearly err in finding that the firearm enhancement

applied.

                                         III.

      We review the sentencing court’s determination of a minor role for clear

error. United States v. De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc).

The defendant bears the burden of proving his minor role by the preponderance of

the evidence. Id. at 939. The Guidelines provides for a two-level reduction if the

defendant was a minor participant in the offense. U.S.S.G. § 3B1.2(b). A minor

participant is any participant “who is less culpable than most other participants,

but whose role could not be described as minimal.” Id. § 3B1.2, comment. (n.5).




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      Rosas does not dispute that he provided the 12.5 grams of

methamphetamine and the firearm, or that he told an informant who represented

himself as a convicted felon that he could obtain ammunition anywhere. This is

the only conduct attributed to Rosas, and he fails to meet his burden of showing

that he played a minor role in that conduct. Thus, the court did not clearly err in

denying Rosas a minor-role reduction.

      Upon review of the entire record on appeal, and after consideration of the

parties’ appellate briefs, we affirm.

      AFFIRMED.




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