                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0302n.06

                                           No. 10-5985

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                                      FILED
                                                                                     Mar 19, 2012
UNITED STATES OF AMERICA,                            )
                                                     )                         LEONARD GREEN, Clerk
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE EASTERN DISTRICT OF
EDGAR ROSAS-JIMENEZ,                                 )       TENNESSEE
                                                     )
       Defendant-Appellant.                          )




       Before: KEITH, MARTIN, and BOGGS, Circuit Judges.



       PER CURIAM. Edgar Rosas-Jimenez, who is represented by counsel, appeals the sentence

he received from the district court following his guilty plea to multiple federal charges.

       In 2010, Rosas-Jimenez pled guilty to conspiracy to distribute cocaine, eight counts of

distributing cocaine, and two counts of being an illegal alien in possession of a firearm. Rosas-

Jimenez went to trial on two other charges, but was found not guilty by a jury. A presentence report
determined that Rosas-Jimenez had an advisory sentencing guidelines range of sixty-three to

seventy-eight months of imprisonment. Rosas-Jimenez objected to the report, arguing that a two-

level enhancement to his offense level under USSG § 2D1.1(b)(1) and a four-level enhancement

under § 2K2.1(b)(6) for possession of a weapon were in error. He also argued that he was entitled

to the “safety valve” provision of USSG § 5C1.2. The district court rejected these arguments and

sentenced Rosas-Jimenez to sixty-five months of imprisonment. Rosas-Jimenez reasserts his claims

on appeal.

       We review Rosas-Jimenez’s sentence for an abuse of discretion. Gall v. United States, 552

U.S. 38, 51 (2007). Rosas-Jimenez argues that the enhancement of his offense level for possession
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                                                 -2-

of a weapon was erroneous. A determination that a firearm was possessed during a drug offense is

a factual finding reviewed for clear error. United States v. Wheaton, 517 F.3d 350, 367 (6th Cir.

2008). Rosas-Jimenez contends that the evidence in this case showed that it was clearly improbable

that the weapon was connected to the drug offenses. See United States v. Moses, 289 F.3d 847, 850

(6th Cir. 2002); United States v. Hill, 79 F.3d 1477, 1485 (6th Cir. 1996).

        The firearm in question was an unloaded .22-caliber pistol that was found in a drawer under

the cash register in Rosas-Jimenez’s store, where several drug transactions took place during the

course of the conspiracy. Rosas-Jimenez contended that a customer had given him the gun as

security for some groceries four days before Rosas-Jimenez was arrested. He also argues that a .22-

caliber pistol is not the type of weapon normally used by drug dealers. We rejected this argument

in Moses. Moses, 289 F.3d at 851. The district court specifically found that the alternate explanation

offered by Rosas-Jimenez for the presence of the gun was not credible because he could not

remember the name of the customer who gave him the gun and never previously took property as

collateral for items sold in the store. No clear error is apparent in this determination.

        Rosas-Jimenez also argues that he was entitled to a safety-valve reduction in his sentence

under § 5C1.2. A refusal to apply the safety-valve provision is a factual finding reviewed for clear

error. United States v. Adu, 82 F.3d 119, 124 (6th Cir. 1996). Here, the district court determined

that Rosas-Jimenez was not entitled to the application of the safety-valve provision for two reasons:

1) his possession of a weapon, and 2) his failure to fully disclose all of his related drug transactions.
The defendant bears the burden of proving entitlement to the reduction by a preponderance of the

evidence. United States v. Bolka, 355 F.3d 909, 912 (6th Cir. 2004). Although an enhancement for

possession of a weapon does not preclude entitlement to the safety valve reduction, id. at 914-15,

the district court’s disbelief of Rosas-Jimenez’s explanation for the presence of the gun indicates that

Rosas-Jimenez failed to meet his burden of proof on this issue.

        The alternative ground relied on by the district court has also not been shown to be clear

error. A police officer testified at the sentencing hearing that a confidential informant made a

number of purchases of cocaine from Rosas-Jimenez in his store during 2008. The case was turned
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                                                -3-

over to the federal authorities, who sent an undercover officer into the store to make the cocaine

purchases in 2009 that were the basis for the charges against Rosas-Jimenez. Rosas-Jimenez denied

distributing any cocaine prior to the instances to which he entered his guilty plea. He attacks the

testimony of the police officer because the officer erroneously stated that there was ammunition for

the pistol in the drawer, when it was later shown that the ammunition was not the correct caliber.

He also argues that the out-of-court statements of the confidential informant required corroboration,

citing United States v. Ortiz, 993 F.2d 204, 208 (10th Cir. 1993). Here, however, the statements of

the confidential informant that he had purchased cocaine from Rosas-Jimenez in his store on

numerous occasions were corroborated by the fact that the federal undercover officer was able to

make similar purchases. Therefore, the district court’s conclusion that Rosas-Jimenez was not

credible when he denied the earlier sales, disentitling him from application of § 5C1.2, is not clearly

erroneous.

       The district court’s judgment is affirmed.
