                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 29 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-8085
                                                      (D.C. No. 00-CR-49)
    JOSE PELAYO ARCINIEGA,                                 (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and         BRORBY Senior
Circuit Judge.




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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered 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      This order and judgment is not binding precedent, except under the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.
       Defendant pled guilty to one count of possessing approximately two pounds

of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841, and

he was sentenced to the statutory minimum term of ten years,      see id.

§ 841(b)(1)(A)(viii). His attorney has filed an   Anders 1 brief on appeal, stating

there are no non-frivolous issues for appeal, and has moved to withdraw.

Defendant has filed a pro se statement raising three sentencing issues: 1) the

district court should have granted him a sentence reduction under the safety valve

provision of 18 U.S.C. § 3553(f); 2) the district court should not have imposed

the statutory minimum sentence; and 3) the penalty provisions of § 841(b)(1)(A),

(B) are unconstitutional in light of   Apprendi v. New Jersey , 530 U.S. 466 (2000).

Defendant also has filed a Petition for Hearing En Banc because his third issue

implicates two Tenth Circuit opinions that defendant argues were wrongly

decided. Based upon our independent review of the record, we conclude that

defendant’s claims are frivolous and dismiss the appeal.

       The “safety valve” provision of 18 U.S.C. § 3553(f) directs a district court

to impose a sentence for a violation of § 841 under the applicable guidelines,

without considering any statutory minimum, if the court finds that the defendant

meets five requirements. “The burden of proving all five requirements by a

preponderance of the evidence lies with the defendant.”        United States v.


1
       Anders v. California , 386 U.S. 738 (1967).

                                            -2-
Gonzalez-Montoya , 161 F.3d 643, 652 (10th Cir. 1998). “We review the district

court’s determination of a particular defendant’s eligibility for relief under

§ 3553(f) for clear error.”   United States v. Saffo , 227 F.3d 1260, 1272 (10th Cir.

2000) (quotation omitted),    cert. denied , 121 S. Ct. 1608 (2001).

       The district court determined that defendant was not eligible for the safety

valve reduction because he did not satisfy the fifth requirement, that “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,” 18 U.S.C. § 3553(f)(5). To satisfy this requirement, defendant

had to tell the government about his own involvement in the offense, as well as

what he knew about the involvement of others.      United States v. Verners , 103

F.3d 108, 110 (10th Cir. 1996). Based on the evidence before it, the district court

found that defendant had not told the government everything he knew. The court

did not find credible defendant’s assertions that he was an extremely minimal

participant and knew nothing about the distribution scheme.      See

Gonzalez-Montoya , 161 F.3d at 652 (holding that trial court is free to disbelieve

defendant’s assertions). Our review of the record fully supports the district

court’s determination. Defendant’s arguments to the contrary are frivolous.




                                           -3-
      Defendant next contends that the district court should have imposed a

sentence under the guidelines without regard to the statutory minimum, because

the terms of the plea agreement were not sufficient to trigger the statutory

minimum sentence. Relying on our opinion in      United States v. Santos , 195 F.3d

549 (10th Cir. 1999), defendant argues that his stipulation in the plea agreement

to possession of more than 500 but less than 1500 grams of methamphetamine for

purposes of relevant conduct under § 1B1.3 of the U.S. Sentencing Guidelines

Manual could not be used to trigger the statutory minimum sentence.

      Because defendant did not raise this issue in the district court, we review it

only for plain error. Fed. R. Crim. P. 52(b).

              Before an appellate court can correct an error not raised at
      trial, there must be (1) error, (2) that is plain, and (3) that affects
      substantial rights. If all three conditions are met, we may exercise
      our discretion to notice a forfeited error, but only if (4) the error
      seriously affect[s] the fairness, integrity, or public reputation of
      judicial proceedings.

United States v. Combs , 267 F.3d 1167, 1181 (10th Cir. 2001) (quotation omitted;

alteration in original). Here, there was no error.

      Under the terms of the plea agreement, defendant pled guilty to count one

of the indictment, which charged that he “knowingly, intentionally, and

unlawfully possess[ed] a controlled substance with intent to distribute, namely,

approximately two pounds of methamphetamine, a Schedule II controlled

substance.” R. Vol. I, Doc. 1 at 1. Under 21 U.S.C. § 841(b)(1)(A)(viii),

                                          -4-
possession with intent to distribute 50 grams or more of methamphetamine carries

a minimum sentence of ten years. In light of defendant’s guilty plea to possession

of approximately two pounds of methamphetamine with intent to distribute, the

district court did not err in imposing the statutory minimum ten-year sentence.

Defendant’s argument on this issue is frivolous.

        Finally, defendant argues that 21 U.S.C. § 841 is facially unconstitutional

in light of Apprendi v. New Jersey . He contends that Congress clearly intended

the penalty provisions set forth in § 841(b) to be sentencing factors only, and not

essential elements of the crime. Because this intended procedural dichotomy is

unconstitutional under        Apprendi , defendant argues, § 841 is unconstitutional on

its face.   2
                Defendant further argues that our holding in   United States v. Jones , 235

F.3d 1231, 1236 (10th Cir. 2000), that “the quantity of drugs involved in a

violation of § 841 is an essential element of the offense if that fact exposes the

defendant to a heightened maximum sentence under § 841(b)(1)(A) or (B)” is

wrong, because it does not follow the procedural dichotomy that Congress

intended. Likewise, defendant argues that our recent decision in         United States v.

Cernobyl , 255 F.3d 1215, 1218-19 (10th Cir. 2001), is wrong, because it rejects a



2
      Defendant founds his argument primarily on the Ninth Circuit’s opinion in
United States v. Buckland , 259 F.3d 1157 (9th Cir. 2001), which has recently been
withdrawn pending en banc reconsideration,   United States v. Buckland , 265 F.3d
1085 (9th Cir. 2001).

                                                -5-
facial challenge to the constitutionality of § 841 based on our analysis in        Jones .

Accordingly, defendant seeks en banc consideration of his facial challenge to the

constitutionality of § 841.

       Because defendant did not raise his constitutional challenge to § 841 in

district court, we review the matter only for plain error. Even if we were inclined

to revisit our holdings in   Jones and Cernobyl , which we are not,    3
                                                                           the district court

certainly did not commit plain error when it followed binding Tenth Circuit

precedent and thereby failed to recognize the alleged unconstitutionality of § 841.

Defendant’s argument to the contrary is frivolous.

       Based on our careful review of the entire proceedings, we conclude that the

record establishes no ground for appeal. We therefore GRANT counsel’s request

to withdraw and DISMISS the appeal.


                                                         Entered for the Court


                                                         Bobby R. Baldock
                                                         Circuit Judge



3
      Defendant’s Petition for Hearing En Banc has been     transmitted to all of the
judges of the court who are in regular active service as required by Fed. R. App.
P. 35. No judge in regular active service on the court requested that the court be
polled on initial hearing en banc. Accordingly, defendant’s Petition for Hearing
En Banc is denied. Further, defendant’s motion to reconsider this court’s order of
September 18, 2001 concerning the Petition for Hearing En Banc is denied as
moot.

                                             -6-
