                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                      November 20, 2009
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT


UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                              No. 08-4074
v.
                                                           (District of Utah )
                                                       (D.C. No. 2:07-CR-445-TS)
MARTIN GONZALEZ-AMBRIZ,

       Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.




       In a two-count indictment filed in the United States District Court for the District

of Utah, Martin Gonzalez-Ambriz (“the defendant”) was charged as follows: Count I,

possession with intent to distribute methamphetamine in violation of 21 U.S.C.

§841(a)(1) and Count II, possession of a firearm by an illegal alien in violation of 18

U.S.C. §922(g)(5).



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Defendant pled guilty to both counts and a Presentence Report (“PSR”) was

prepared using the 2007 Guidelines. Defendant’s base offense level was 32, he received a

two level increase under §2D1.1(b)(1) for possessing a firearm, and a three level

reduction for acceptance of responsibility. With zero criminal history points, the

Guideline range was 108-135 months. However, because of a mandatory statutory

minimum for the drug offense, the resulting Guideline range was 120-135 months.

Defendant filed a Motion for Downward Departure stating that he did not object to the

findings in the PSR but objected to the two-level increase for possessing a firearm and

also requested relief under the “safety valve provision” in §5C1.2. The court disagreed

with defendant, ruling that the enhancement applied and that defendant was not eligible

for safety valve relief. Defendant was sentenced to 120 months imprisonment followed

by 60 months supervised release.

       On appeal, defendant’s only argument is that the district court erred in finding him

ineligible for a downward departure pursuant to the safety valve provision in USSG

§5C1.2. We disagree.

       Defendant made several sales of methamphetamine to an undercover officer and

pursuant to a search warrant, his apartment, which was shared with his wife and another

family, was searched. In the defendant’s bedroom, officers found several bags of

methamphetamine, cutting agent, scales and other drug paraphernalia. In the bedroom

closet, an unloaded Raven .25 caliber handgun was found along with a large sum of cash,

and small amounts of methamphetamine in jacket pockets.

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        On appeal, defendant does not dispute the court’s finding that the circumstances

surrounding his constructive possession of the handgun were sufficient to qualify him for

the enhancement but only contends that the court erred in finding defendant was

ineligible for a downward departure. USSG §5C1.2 provides that the court shall impose a

sentence below a statutory minimum if the defendant meets five criteria. At issue is

whether “the defendant did not use violence or credible threats of violence or possess a

firearm or other dangerous weapon in connection with the offense.” (Emphasis added) .

Defendant argues that although the gun was possessed “proximate to” the offense, it was

not possessed “in connection with the offense.” As support for this, defendant states that

the gun was not owned by him, it was not loaded at the time of the search, and no

ammunition was located in the apartment. The defendant concedes that he has the burden

of establishing by a preponderance of the evidence that he satisfies the criteria in the

“safety valve provision.” See United States v. Cervantes, 519 F.3d 1253 (10th Cir. 2008).

At sentencing the court discussed the application of the safety valve provision and stated

that:

        ...the firearm was found in the defendant’s bedroom. It was found within
        the same areas as a set of scales, methamphetamine, packing material,
        cutting agent, and cash. From this, the Court finds that the defendant has
        not met his burden to show that he did not possess the firearm in connection
        with the offense. Therefore, the Court will not apply the safety valve
        provision.


        We review a district court’s determination that a defendant is not eligible for

safety valve relief for clear error, giving due deference to its application of the Guidelines

                                             -3-
to the facts. United States v. Payton, 405 F.3d 1168, 1170 (10th Cir. 2005). The district

court correctly applied our case law concerning the application of the safety valve

reduction in finding that the defendant did not meet his burden by a preponderance of the

evidence to demonstrate he meets all five criteria under USSG §5C1.2.          We have held

that the “mere propinquity of the weapons and drugs suggests a connection between the

two.” Payton, 405 F.3d at 1171. “A firearm’s proximity and potential to facilitate the

offense is enough to prevent application of USSG §5C1.2.” United States v. Hallum, 103

F.3d 87, 89 (10th Cir. 1996). Here, the firearm was located in defendant’s bedroom closet

close to drugs, money, and other drug paraphernalia. There was also evidence that the

district court chose to credit that defendant admitted ownership of the firearm. The

district court did not err in finding that defendant failed to establish his eligibility for the

safety valve.

       We affirm.



                                                            ENTERED FOR THE COURT

                                                            Robert H. McWilliams
                                                            Senior Circuit Judge




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