                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  January 3, 2008
                    UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-5070
          v.                                           (N.D. Oklahoma)
 LAZARO CASTANEDA ASCENCIO,                     (D.C. No. 06-CR-102-01-CVE)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



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

unanimously that oral argument would not materially assist in 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.

      Defendant and appellant Lazaro Castaneda Ascencio pled guilty to aiding

and abetting the possession of methamphetamine with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C. § 2(a). He



      *
        This order and judgment is not binding precedent except under the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.
was sentenced to 120 months’ imprisonment, followed by five years of supervised

release. Castaneda Ascencio appeals his sentence, which we affirm.



                                 BACKGROUND

      On May 2, 2006, Tulsa, Oklahoma, police officers approached Castaneda

Ascencio’s apartment after learning from a confidential informant that Castaneda

Ascencio had been storing and selling large amounts of crystal methamphetamine

at his apartment. As the officers approached, they saw that the front door was

open and that children were entering and exiting the apartment. At the front door

of the apartment, the officers encountered Castaneda Ascencio’s wife and they

identified themselves as police officers. Castaneda Ascencio’s wife told the

officers that her husband was at work, and she gave them consent to search the

apartment.

      During the search of the apartment, the officers found a shoe box in the

master bedroom which contained three large baggies of methamphetamine. The

officers discovered a fourth baggie of methamphetamine under some clothes in

the master bedroom closet, as well as $2900 in cash under the carpet in that

closet. Underneath the bed in the master bedroom, officers discovered a quantity

of a cutting agent commonly used in the distribution of methamphetamine, along

with a scale and some drug notations. On a shelf inside a hall closet, the officers

found a loaded .380 semi-automatic pistol.

                                        -2-
      Castaneda Ascencio was arrested at his place of work. He told officers that

he was storing the methamphetamine for a man from Texas who would retrieve it

from him and sell it for $7,000 per pound. He further stated that, on the previous

weekend, he had obtained four pounds of crystal methamphetamine from a man

who was employed at a local flea market. Castaneda Ascencio also admitted that

the pistol found at his apartment belonged to him and that he had bought it from

someone with whom he worked.

      In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”). The PSR calculated a total adjusted offense level of

33, which, with a criminal history of I, yielded an advisory sentencing range of

135 to 168 months under the United States Sentencing Commission, Guidelines

Manual (“USSG”)(2006). However, pursuant to statute, Castaneda Ascencio

faced a mandatory minimum sentence of ten years. 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(viii).

      Castaneda Ascencio filed objections to the PSR and sought a downward

departure, arguing, inter alia, that he was entitled to receive a “safety valve”

reduction below the mandatory minimum ten-year sentence, pursuant to USSG

§ 5C1.2 and 18 U.S.C. § 3553(f)(1)-(5), and should, pursuant to USSG




                                          -3-
§ 2D1.1(b)(9), receive a two-level reduction in his base offense level under the

Guidelines. 1 The Probation Office opposed any safety valve reduction, finding:

      Due to the specific facts in this case, the defendant has not
      established by a preponderance of the evidence that the firearm was
      not possessed in connection with the offense. Therefore, the
      defendant does not meet the criteria for the “safety valve” and a two-
      level decrease pursuant to USSG §2D1.1(b)(9).

Addendum to PSR at 3, R. Vol. III. The government’s sentencing memorandum

also opposed any safety valve reduction.

      At sentencing, the district court rejected Castaneda Ascencio’s safety valve

argument, finding:

      In this case, it is clear that the defendant had actual possession of the
      firearm, as he admitted ownership of the firearm and placing the
      firearm in the hall closet.
             The Court recognizes that in United States v. Hallum, 103 F.3d
      87 (10th Cir. 1996), the Tenth Circuit found that “. . . a firearm’s
      proximity and potential to facilitate the offense is enough to prevent
      application of Section 5C1.2.” In this case, the weapon was in the
      center of the defendant’s small apartment, an area that was easily and
      quickly accessible to the defendant. The defendant claims that the
      firearm was possessed only to protect his family because he lived in
      a high-crime area. However, he placed his family in additional
      harm’s way by having a large amount of actual methamphetamine
      and cash inside the apartment. Clearly, if the defendant would use
      the firearm to protect his family from danger in a high-crime area,
      this Court finds that he would use the firearm to protect his family

      1
       The “safety valve” provision of the Guidelines permits a sentence below
an otherwise applicable statutory mandatory minimum sentence if a defendant
meets five criteria. USSG §5C1.2. One of those criteria is that “the defendant
did not . . . possess a firearm or other dangerous weapon . . . in connection with
the offense.” USSG §5C1.2(a)(2). Pursuant to USSG §2D1.1(b)(9), a defendant
meeting the requirements of the safety valve provisions may receive a two-level
decrease in his base offense level.

                                         -4-
      from the danger of having methamphetamine and large amounts of
      cash inside his residence.
             In Gomez-Arrellano, 5 F.3d 464, 466 to 67 (10th Cir. 1993),
      the circuit court analyzed the phrase “in connection with” as it
      applied to Sentencing Guideline Section 2K2.1(b)(5). The same
      analysis is applicable to the application of Sentencing Guideline
      Section 5C1.2. The circuit court found that “in connection with” is
      analogous to the “in relation to” requirement of 18 U.S.C., Section
      924(c), which is satisfied if the evidence shows that the weapon
      facilitates or has the potential to facilitate the offense. Accordingly,
      the facts surrounding the weapon in question here carried the
      potential to facilitate the commission of the offense of distribution of
      controlled substances.
             Based upon the stipulations as to the facts and under the
      totality of the circumstances, this Court finds that defendant has not
      established by a preponderance of the evidence that the firearm was
      not possessed in connection with the offense. Accordingly, the facts
      surrounding the weapon in question here carried the potential to
      facilitate the commission of the offense of distribution of controlled
      substances.

Tr. of Sentencing Hr’g at 19-20, R. Vol. VI. The court accordingly found

Castaneda Ascencio was not entitled to a safety valve reduction and a two-level

decrease under USSG §2D1.1(b)(9). It ultimately sentenced Castaneda Ascencio

to the statutory mandatory minimum of ten years. Castaneda Ascencio appeals,

arguing that the district court erred in failing to find him eligible for a safety

valve reduction.



                                    DISCUSSION

      We review sentences imposed post-Booker for reasonableness. United

States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam) (citing United


                                           -5-
States v. Booker, 543 U.S. 220 (2005)). In determining whether a particular

sentence is reasonable, we first consider whether the court correctly calculated the

applicable Guideline range, reviewing the court’s legal conclusions de novo and

its factual findings for clear error. Id. at 1054. See Gall v. United States, 552

U.S. ___, ___ (2007) (noting that “the Guidelines should be the starting point and

the initial benchmark”). Whether the court ultimately decides to sentence a

defendant within or outside the advisory Guidelines, “courts of appeals must

review all sentences . . . under a deferential abuse-of-discretion standard.” Id. at

___.

       In this case, the only issue on appeal is whether the district court correctly

determined that Castaneda Ascencio is ineligible for a safety valve reduction

below the statutory mandatory minimum sentence, on the ground that he did not

possess the loaded pistol found in the hall closet in connection with the crime of

aiding and abetting methamphetamine possession. 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 to the facts.

United States v. Payton, 405 F.3d 1168, 1170-71 (10th Cir. 2005); see also United

States v. Zavalza-Rodriguez, 379 F.3d 1182, 1184 (10th Cir. 2004).

       The district court correctly applied our case law concerning the application

of the safety-valve provision. “The burden is on the defendant to demonstrate

that []he meets all five criteria” of the §5C1.2 safety-valve provision. Payton,

                                          -6-
405 F.3d at 1170. He must meet that burden “by a preponderance of the

evidence.” Zavalza-Rodriguez, 379 F.3d at 1185. We have stated that “we focus

on the defendant’s own conduct for purposes of evaluating eligibility for the

safety valve.” Id. at 1186. In this case, Castaneda Ascencio admitted he owned

the pistol, and that he brought it from his work to his apartment and participated

in placing it in the hall closet.

       We have further held that “[t]he mere propinquity of the weapons and drugs

suggests a connection between the two.” Payton, 405 F.3d at 1171. Thus, “a

firearm’s proximity and potential to facilitate the offense is enough to prevent

application of USSG §5C1.2(2).” United States v. Hallum, 103 F.3d 87, 89 (10th

Cir. 1990). Here, the weapon was located in a hall closet in a small apartment,

not far from the methamphetamine, and readily accessible to anyone in the

apartment. As the district court found, such a loaded weapon in such a location

established the weapon’s proximity and potential to facilitate the crime of

methamphetamine distribution. The district court did not clearly err in finding

that Castaneda Ascencio failed to establish his eligibility for the safety-valve.



                                    CONCLUSION

       For the forgoing reasons, we AFFIRM the sentence.

                                                ENTERED FOR THE COURT

                                                Stephen H. Anderson
                                                Circuit Judge

                                          -7-
