                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 3 2003
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.
                                                       No. 02-4176
                                                     (District of Utah)
JOSE VELASQUEZ-MEZA, also
                                                 (D.C. No. 96-CR-149-TC)
known as Jose Enrique Gonzalez-
Meza, also known as Jose
Montelongo-Trinidad,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. Fed. R. App. P. 34(f); 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       This order and judgment is not binding precedent, except under the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.
I.    INTRODUCTION

      Appellant Jose Velasquez-Meza pleaded guilty pursuant to a plea agreement

to one count of possession of methamphetamine with intent to distribute. The

district court sentenced Velasquez-Meza to the minimum mandatory term of ten

years after concluding that he did not qualify for a reduced sentenced under 18

U.S.C. § 3553(f), the so-called “safety valve provision.” Velasquez-Meza appeals

his sentence by challenging the district court’s determination that he was not

entitled to the benefit of the safety valve. He also contends that an obstruction of

justice adjustment to his offense level was inappropriately applied and he was

improperly denied a minor-participant reduction in his offense level.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms,

concluding that Velasquez-Meza was not eligible for the safety valve provision

because he was under a criminal justice sentence when he committed the offense

of conviction. As a result, this court need not consider Velasquez-Meza’s

assertions regarding the calculation of his offense level. Furthermore, this court

lacks jurisdiction to review the district court’s refusal to depart based on an

overrepresentation of Velasquez-Meza’s criminal history category.

II.   BACKGROUND

      On July 23, 1996, Velasquez-Meza was indicted on one count of possession

of 100 grams or more of methamphetamine with intent to distribute in violation of


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21 U.S.C. § 841. He was granted pre-trial release but failed to appear at a change

of plea hearing. The district court issued a bench warrant on September 8, 1997,

which was executed four years later on September 26, 2001 when Velasquez-

Meza attempted to unlawfully reenter the United States. Subsequently,

Velasquez-Meza pleaded guilty to the possession-with-intent-to-distribute-

methamphetamine count pursuant to a plea agreement. In exchange, the

government agreed to recommend departure below the minimum mandatory

sentence under the safety valve provisions set forth in 18 U.S.C. § 3553(f) and

U.S.S.G. § 5C1.2.

      In its presentence report, the United States Probation Office placed

Velasquez-Meza into a criminal history category of II based upon a criminal

history score of three. He was given one criminal history point for a domestic

battery charge to which he pleaded guilty pursuant to a plea in abeyance

agreement in Utah state court. After completing domestic violence counseling on

August 19, 1997, Velasquez-Meza was given good-behavior probation. In

accordance with U.S.S.G. § 4A1.1(d), two criminal history points were added for

commission of the instant offense while on probation for the state domestic

battery charge.

      Velasquez-Meza objected to the presentence report, arguing that he was not

under a criminal justice sentence at the time he committed the present offense.


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He also filed a motion for downward departure, claiming that his criminal history

category was overrepresented. In addition to his objections relating to his

criminal history category, Velasquez-Meza objected to the imposition of an

obstruction of justice enhancement to his offense level. He further asserted that

he should have been considered for a minor participant adjustment, thereby

further reducing his offense level by two points.

      At sentencing, the district court found that the state court plea in abeyance

constituted a criminal justice sentence and determined that Velasquez-Meza did

not qualify for the safety valve. In addition, the court ruled on the downward

departure as follows:

            THE COURT: And maybe I’m not understanding correctly,
      but once we get into the–once the safety valve does not permit me to
      do anything–and I know you disagree, but just assuming that it
      does–ten years is–I have no choice but to ten years, I’m afraid, unless
      I’m misreading that.

             MR. JOHNSON [Velasquez-Meza’s counsel]: And I think
      that’s why my argument is that he basically is treated as zero to one
      points if he gets put down into the category one criminal history.

             THE COURT: Understood. Well, I believe that given my
      conclusion that he does have the criminal history points, the two
      criminal history points set forth in 4A1.1(d), then he does not qualify
      for the safety valve, and the ten year minimum mandatory trumps any
      guideline considerations.

Finally, the district court declined to consider Velasquez-Meza’s objections

relating to adjustments to his base offense level, concluding they were moot.


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Consequently, Velasquez-Meza was sentenced to the mandatory minimum term of

120 months.

III.   DISCUSSION

       A.     Safety Valve Provision

       Velasquez-Meza argues that the district court erred by failing to grant him

the benefit of the safety valve to the minimum mandatory sentence. This court

reviews a district court’s determination of whether a defendant qualifies for the

safety valve under 18 U.S.C. § 3553(f) for clear error. United States v. Gonzalez-

Montoya, 161 F.3d 643, 651 (10th Cir. 1998). The district court’s interpretation

of the scope and meaning of section 3553(f) is reviewed de novo. Id.

       Under 21 U.S.C. § 841(b)(viii), possession of 50 grams or more of

methamphetamine with intent to distribute carries a mandatory term of

imprisonment for ten years. However, a defendant may qualify for a departure

below the minimum mandatory under the following safety valve provision in the

Sentencing Guidelines:

       [I]n the case of an offense under 21 U.S.C. § 841, . . . the court shall
       impose a sentence in accordance with the applicable guidelines
       without regard to any statutory minimum sentence, if the court finds
       that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set
       forth verbatim below:

       (1) the defendant does not have more than 1 criminal history point,
       as determined under the sentencing guidelines;
       ...


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U.S.S.G. § 5C1.2. 1

      Velasquez-Meza contends that he should have only been assessed one

criminal history point which would have then qualified him for the safety valve.

Specifically, he argues that the district court erred in adding two points to his

criminal history score because his plea in abeyance in Utah state court did not

constitute a “criminal justice sentence.” Under U.S.S.G. § 4A1.1(d), two points

are added to a defendant’s criminal history score “if the defendant committed the

instant offense while under any criminal justice sentence.” The Sentencing

Guidelines Commentary further defines “criminal justice sentence” as any

sentence under U.S.S.G. § 4A1.2 “having a custodial or supervisory component,

although active supervision is not required for this item to apply.” U.S.S.G. §

4A1.1 cmt. 4. Section 4A1.2(f) lists “[a] diversionary disposition resulting from a

finding or admission of guilt . . . even if a conviction is not formally entered” as a

sentence which can be used to calculate a defendant’s criminal history.

      This court has recently decided that a plea in abeyance in Utah state court

constitutes a “criminal justice sentence” because it contains a supervisory

component. United States v. Gorman, 312 F.3d 1159, 1167 (10th Cir. 2002). In

Gorman, this court recognized that a plea in abeyance in Utah permitted the state


      1
        Because this court concludes infra that Velasquez-Meza did not meet the
first requirement, it is not necessary to address whether the other four
requirements for safety valve eligibility were satisfied.

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court to refrain from sentencing and impose specific conditions. Id. at 1166.

Because the conditions imposed under the plea in abeyance resemble conditions

of probation, a plea in abeyance in Utah is sufficiently supervisory. See id. at

1167. In this case, Velasquez-Meza’s plea in abeyance included the condition of

completing domestic violence counseling. The requirement of counseling

sufficiently resembled a probationary condition because it was conditional to the

successful completion of the plea in abeyance agreement. Therefore, in

accordance with Tenth Circuit precedent, Velasquez-Meza’s plea in abeyance was

a criminal justice sentence. Hence, the district court did not err in adding two

points to his criminal history score. Moreover, the district court did not err in

determining that Velasquez-Meza did not qualify for the safety valve provision.

      B.     Downward Departure

      Velasquez-Meza contends that the district court erred in refusing to grant a

downward departure under U.S.S.G. § 4A1.3 from a criminal history category II

to criminal history category of I because his criminal history was overrepresented.

      A district court’s refusal to depart downward from the Sentencing

Guidelines is generally not appealable. United States v. Miranda-Ramirez, 309

F.3d 1255, 1258 (10th Cir. 2002). This court, however, can exercise jurisdiction

if the district court “states that it does not have any authority to depart from the

sentencing guideline range for the entire class of circumstances proffered by the


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defendant.” United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998). In

order to do so, the district court must unambiguously state that it believes it lacks

authority to depart. See United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.

1994). Ambiguous statements are treated as if the district court was aware of its

legal authority to depart but exercised its discretion by choosing not to depart.

United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999).

       Here, the district court did not unambiguously assert that it had no authority

to depart. At most, the district court’s statements concerning its ability to depart

from the original criminal history category are ambiguous. Accordingly, this

court does not have jurisdiction to review Velasquez-Meza’s downward departure

challenge. 2




       2
        Even if the district court had granted the departure, it would have had no
impact on Velasquez-Meza’s eligibility for the safety valve provision. United
States v. Owensby, 188 F.3d 1244, 1246 (10th Cir. 1999). Additionally, a
departure for an overrepresented criminal history category cannot actually reduce
a defendant’s criminal history category so that he may qualify for the safety valve
provision. Id. Accordingly, because Velasquez-Meza does not qualify for the
safety valve provision and was subject to the mandatory minimum sentence of ten
years, any departure from the criminal history category would have no affect on
his sentence. See, e.g., United States v. Santiago, 201 F.3d 185, 187 (3d Cir.
1999) (“Any deviation from the statutory minimum sentence can only be had
through the specific procedures established through 18 U.S.C. §§ 3553(e),
3553(f). . .”); cf. United States v. Campbell, 995 F.2d 173, 175 (10th Cir. 1993)
(noting that downward departure from statutory minimum would conflict with
purpose of express limited exception in 18 U.S.C. § 3553(e)).

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      C.     Adjustments

      Velasquez-Meza also argues that he should not have received an adjustment

for obstruction of justice and was eligible for the minor participant reduction.

His argument, however, has no impact on his sentence because the safety valve

provision under which he did not qualify is the only applicable exception to the

minimum mandatory. See United States v. Santiago, 201 F.3d 185, 187 (3d Cir.

1999). Therefore, the district court did not err in refusing to consider any

adjustments to Velasquez-Meza’s offense level.

IV.   CONCLUSION

      Based upon the foregoing reasons, the district court’s determination that

Velasquez-Meza was not eligible for the safety valve provision is AFFIRMED.

Velasquez-Meza’s challenge to the district court’s denial of the downward

departure is DISMISSED for lack of jurisdiction.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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