                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 14 2000
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 00-1120
    v.                                              (D.C. No. 99-CR-317-M)
                                                           (D. Colo.)
    JESUS PONCE-ESTRADA,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before McKAY, PORFILIO, and ANDERSON, 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. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Jesus Ponce-Estrada pled guilty to conspiracy to distribute or possess with

intent to distribute cocaine. At sentencing, Mr. Ponce-Estrada sought relief from


*
      This order and judgment is not binding precedent, except under the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.
the minimum mandatory five-year sentence under the “safety valve” exception to

minimum mandatory sentencing. See United States v. Acosta-Olivas, 71 F.3d 375,

377-78 (10th Cir. 1995) (discussing 18 U.S.C. § 3553(f) and USSG § 5C1.2).

The district court denied that request and sentenced Mr. Ponce-Estrada to the

minimum mandatory sentence, a sixty-month term of imprisonment.

Mr. Ponce-Estrada appeals his sentence. Finding no error, we affirm.

      Mr. Ponce-Estrada’s presentence report did not indicate that he was

qualified for relief from the minimum mandatory sentence under § 3553(f)(5),

because he had not fully cooperated with the government by providing

information about the source of the drugs or the role of his co-conspirators in the

transaction for which he pled guilty. See Acosta-Olivas, 71 F.3d at 378-79.

Mr. Ponce-Estrada filed a written objection to the presentence report, arguing that

he had participated in the debriefing session. See Appellant’s App. at 39. At the

sentencing hearing, Mr. Ponce-Estrada’s counsel elaborated on the objection,

arguing that at the debriefing session, the agents were hostile, skeptical and

confrontational, and that they focused the conversation on a previous marijuana

deal rather than on the cocaine transaction for which Mr. Ponce-Estrada was

being sentenced. See Appellant’s App. at 64.

      We review for clear error the district court’s determination concerning

eligibility under § 3553(f), see Acosta-Olivas, 71 F.3d at 377; and we review de


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novo the court’s interpretation of the sentencing guidelines. See Acosta-Olivas,

71 F.3d at 378 n.3. The defendant bears the burden of proving by a

preponderance of the evidence that he is entitled to “safety valve” relief. See

United States v. Gonzalez-Montoya, 161 F.3d 643, 652 (10th Cir. 1998), cert.

denied, 526 U.S. 1033 (1999). The government does not bear a burden of seeking

out information from the defendant. See United States v. Ramirez, 94 F.3d 1095,

1101 (7th Cir. 1996). However, it is responsible for providing a means by which

it can receive information, because “‘debriefing by the government plays an

important role in permitting a defendant to comply with the disclosure

requirement of the safety valve provision.’” United States v. Brack, 188 F.3d

748, 763 (7th Cir. 1999) (internal citation omitted).

      At the sentencing hearing, the government made a proffer that

Mr. Ponce-Estrada had not complied with the statutory provision because he

failed to reveal the source of the drugs and the roles of individuals involved in the

offense. See Appellant’s App. at 63. The government acknowledged that its

debriefing session with Mr. Ponce-Estrada had been fruitless, but stated that it

had offered Mr. Ponce-Estrada a second debriefing opportunity. See id. at 65.

Significantly, Mr. Ponce-Estrada refused to meet with the government for a

second session. See id. In addition, although Mr. Ponce-Estrada’s counsel argued

at the sentencing hearing that Mr. Ponce-Estrada had told the government what he


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knew, counsel made no proffer at the sentencing hearing that Mr. Ponce-Estrada

had satisfied the requirements of the “safety valve” provision by providing the

government with relevant information about the transaction. Under these

circumstances, we find no error in Mr. Ponce-Estrada’s sentencing.

      Accordingly, Jesus Ponce-Estrada’s sentence is AFFIRMED.



                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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