                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 4 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-2036
v.
                                                 (District of New Mexico)
                                                 (D.C. No. CR-97-505-JC)
FRANCISCO JAVIER TAPIA-
MATOSIAN,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


      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. 34.1.9. The court

therefore honors the parties’ requests and orders the case 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       This order and judgment is not binding precedent, except under the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. BACKGROUND

      Francisco Javier Tapia-Matosian pleaded guilty to illegally importing five

or more kilograms of cocaine in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and

960(b)(1)(B)(ii). The district court sentenced Tapia-Matosian to a 135-month

term of imprisonment. Tapia-Matosian appeals, claiming the district court erred

in: (1) denying Tapia-Matosian a two-point reduction in his base offense level

based on his allegedly minor role in the offense pursuant to U.S.S.G. § 3B1.2;

and (2) concluding that Tapia-Matosian did not satisfy all of the requirements

necessary to invoke the “safety valve” set out in 18 U.S.C. § 3553(f) and

U.S.S.G. § 5C1.2. This court exercises jurisdiction pursuant to 28 U.S.C. § 1292

and 18 U.S.C. § 3742 and   affirms .

      On July 27, 1997, Tapia-Matosian entered the United States from Mexico.

At the border, a customs inspector asked Tapia-Matosian if he had made any

purchases. Tapia-Matosian responded in the negative and instead indicated that

he had crossed to border to deliver his mother to a bus station. During this initial

conversation, the customs inspector noticed that although there was a spare tire

compartment behind the driver’s seat in the cab of the vehicle, Tapia-Matosian’s

spare tire was sitting in the bed of the truck. The customs inspector referred

Tapia-Matosian to a secondary inspection.




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       During the secondary inspection, Tapia-Matosian initially informed the

inspectors that he lived in Deming, New Mexico. When it was revealed,

however, that Tapia-Matosian had a California driver’s license, Tapia-Matosian

changed his story and indicated that he was only visiting New Mexico. A search

of the vehicle revealed approximately eighty kilograms of cocaine. A further pat-

down search of Tapia-Matosian revealed a hand-written map and a California

phone number. After he was transported to the United States Customs Office for

processing, agents found a motel room key among Tapia-Matosian’s possessions.

A search of the room revealed a suitcase belonging to Tapia-Matosian containing

approximately $800 in ten dollar bills.

       A grand jury indicted Tapia-Matosian on one count of importing cocaine in

violation of 18 U.S.C. §§ 952(a), 960(a), and 960(b)(1)(B)(ii) and one count of

possession of cocaine with intent to distribute in violation of § 841. Tapia-

Matosian entered into a plea agreement with the United States and pleaded guilty

to the importation count of the indictment. The parties stipulated, based on the

amount of cocaine seized from his vehicle, that Tapia-Matosian’s offense conduct

resulted in a base offense level of thirty six.     See U.S.S.G. § 2D1.1(c)(2)

(establishing a base offense level of thirty six where the drug quantity involved

“[a]t lease 50 KG but less than 150 KG of cocaine”). The parties further

stipulated that Tapia-Matosian had demonstrated acceptance of responsibility for


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his criminal conduct and was, therefore, entitled to a three level reduction in his

base offense level pursuant to U.S.S.G. § 3E1.1. Finally, the parties stipulated

that should Tapia-Matosian qualify for relief under the safety valve provisions of

18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, his resultant base offense level would

be thirty one, with a guideline imprisonment range of 108 to 135 months.

      The United States Probation Office prepared a presentence report (“PSR”)

which concluded Tapia-Matosian had met the criteria necessary to gain relief

under the statutory and guidelines safety valve provisions. In response, the

United States filed an objection to the conclusion in the PSR that Tapia-Matosian

was entitled to safety valve relief. The United States conceded Tapia-Matosian

had met with a federal agent and provided information; it asserted, however, that

the information was neither truthful nor complete. Shortly thereafter, Tapia-

Matosian filed a sentencing memorandum requesting, pursuant to U.S.S.G. §

3B1.2, a two-level reduction in his base offense level for playing a minor role in

the drug-importation scheme.

      On January 27, 1998, Tapia-Matosian appeared for sentencing. The

district court concluded Tapia-Matosian had not met his burden of establishing

his minor role and, therefore, denied his request for a downward departure

pursuant to U.S.S.G. § 3B1.2. The district court further concluded that Tapia-

Matosian had failed to provide the government truthful and complete information


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concerning the drug-importation scheme. Accordingly, the district court denied

Tapia-Matosian relief under the statutory and guideline safety valve provisions.



                                   II. ANALYSIS

      A. Minor Role Reduction

      On appeal, Tapia-Matosian contends the district court erred in declining to

decrease his offense level under U.S.S.G. § 3B1.2 based on his minor role in the

offense. The district court’s conclusion that Tapia-Matosian was not a minor

participant in the crime is a finding of fact which this court reviews for clear

error. United States v. Ballard , 16 F.3d 1110, 1114 (10   th
                                                                Cir. 1994). This court

also gives due deference to the district court’s application of the Sentencing

Guidelines. See id. “Under U.S.S.G. § 3B1.2, it is the defendant’s burden to

establish by a preponderance of the evidence that he or she is entitled to an

offense reduction.”   United States v. Ayers , 84 F.3d 382, 383 (10    th
                                                                            Cir. 1996).

      In his sentencing memorandum and at the sentencing hearing, Tapia-

Matosian argued he was entitled to a minor-participant downward adjustment

because he was an unsophisticated drug courier recruited at the border. The

district court denied the adjustment, concluding as follows: (1) the very limited

nature of the information provided by Tapia-Matosian about his criminal

behavior failed to prove Tapia-Matosian’s actions were minor compared to other


                                          -5-
alleged members of the importation conspiracy; and (2) it was unlikely that the

large amount of cocaine at issue here would have been entrusted to someone who

had just been recruited at the border.

      Tapia-Matosian does not directly attack as clearly erroneous the district

court’s factual finding that Tapia-Matosian failed to prove his entitlement to a

§ 3B1.2(b) downward adjustment. Instead, Tapia-Matosian argues the district

court’s denial of the adjustment was based on the following two errors of law: (1)

the district court denied the adjustment on the grounds Tapia-Matosian’s conduct

was not minor when compared with that of other hypothetical couriers; and (2)

the district court denied the adjustment on the grounds that Tapia-Matosian was

the sole offender arrested and prosecuted. Each of these contentions is

completely without merit.

      During the sentencing hearing, Tapia-Matosian argued that the relatively

unsophisticated way in which he smuggled the cocaine across the border

supported a minor-participant adjustment. In response, the district court noted as

follows:

            THE COURT: 78 kilograms of cocaine indicates some
      sophistication. That’s a fairly significant amount of cocaine.

             ....

             THE COURT: My point, it’s not a backpack of marijuana.
      This is a fairly significant amount of cocaine. It’s a valuable


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      commodity. It’s not being entrusted to someone who has been
      recruited at the border station.

According to Tapia-Matosian, these statements evince an intention on the part of

the district court to deny the sentencing adjustment because Tapia-Matosian’s

conduct was not minor compared with hypothetical drug couriers. Tapia-

Matosian’s reading of the district court’s statements is simply incorrect. The

quoted statements merely reflect the district court’s conclusion that although

high-level drug conspirators may send large quantities of marijuana over the

border with relatively unsophisticated drug “mules,” it is unlikely that they would

send seventy-eight kilograms of far-more-valuable cocaine over the border in

similar fashion. Accordingly, read in context, the comments set out above reflect

a factual finding about the extent of Tapia-Matosian’s likely participation in the

importation of cocaine, rather than a conclusion that the actions of cocaine

smugglers in general or Tapia-Matosian in particular are relatively more culpable

than the actions of hypothetical marijuana couriers.

      The district court engaged in the following colloquy with counsel for

Tapia-Matosian at the sentencing hearing:

             THE COURT: [Tapia-Matosian] can only be considered for a
      minor role if we know who the other participants are and that there
      is a role and a group that’s bringing in the drugs. Do we have that
      information?

            COUNSEL: Your Honor, I think that under the facts again, he
      being a courier –

                                         -7-
             THE COURT: See, we don’t know he’s a courier unless we
       have the rest of the organization. He could be doing this on his own.

              COUNSEL: The Government didn’t find any other evidence
       that he might have been a producer of this.

              THE COURT: . . . . The burden is on you to show that he is a
       courier and what his limited role is. Otherwise, the assumption is
       that this is being done by him, for him, and he’s the beneficiary.

Citing this colloquy, Tapia-Matosian argues the district court refused to even

consider a role adjustment because Tapia-Matosian was “the only one convicted

in the offense.” Appellant’s Brief at 11. Once again, Tapia-Matosian reads far

too much into the district court’s statements during sentencing. As aptly noted

by the United States, § 3B1.2(b) only applies when a criminal defendant plays a

minor role in concerted criminal activity.     See U.S.S.G. § 3B1.2, application note

1; see also United States v. Webster   , 996 F.2d 209, 212 (9   th
                                                                     Cir. 1993) (holding

§ 3B1.2 adjustment available only when criminal activity involved more than one

participant and defendant’s culpability for such conduct was minor compared to

other participants);   United States v. Caballero , 936 F.2d 1292, 1299 (D.C. Cir.

1992) (same). The comments of the district court set out above merely reflect

Tapia-Matosian’s failure to meet his burden of proving his entitlement to a

§ 3B1.2(b) adjustment.     Ayers , 84 F.3d at 383 (“Under U.S.S.G. § 3B1.2, it is the

defendant’s burden to establish by a preponderance of the evidence that he or she

is entitled to an offense reduction.”). In particular, Tapia-Matosian failed to


                                             -8-
adequately identify other conspirators so that the district court could undertake a

proper comparison of Tapia-Matosian’s culpability. Tapia-Matosian’s assertions

to the contrary, the district court’s statements cannot reasonably be read as

standing for the proposition that Tapia-Matosian was not entitled to the

adjustment because he was the only one convicted of the offense.

       B. Safety Valve Provisions

       Tapia-Matosian contends that he was improperly denied a two-level

downward adjustment under the safety valve provision of the sentencing

guidelines. See 18 U.S.C. § 3553(f); U.S.S.G. 5C1.2. This court reviews the

district court’s determination that Tapia-Matosian is not entitled to relief under

§ 3553(f) for clear error.   See United States v. Roman-Zarate , 115 F.3d 778, 784

(10th Cir.1997). To the extent the district court interpreted the scope and

meaning of 3553(f)(5), this court reviews its legal interpretations de novo.    See

United States v. Verners , 103 F.3d 108, 110 (10    th
                                                         Cir. 1996).

       To override a mandatory minimum sentence, Tapia-Matosian must meet all

five requirements of the safety valve provision: (1) that he does not have more

than one criminal history point under the sentencing guidelines; (2) that he did

not use violence or credible threats of violence or possess a firearm or other

dangerous weapon in connection with the offense; (3) that the offense did




                                            -9-
not result in death or serious bodily injury; (4) that the defendant was not a

leader or organizer of the offense and that he was not engaged in a continuing

criminal enterprise; and (5) that, not later than the time of sentencing, he

“truthfully provided to the Government all information and evidence concerning

the offense or offenses that were part of the same course of conduct or a common

scheme or plan.” 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The burden of proving

all five requirements by a preponderance of the evidence lies with Tapia-

Matosian. See Verners , 103 F.3d at 110.

      At sentencing, the United States agreed that Tapia-Matosian met the first

four safety-valve criteria. Accordingly, the sole issue before the district court

was whether Tapia-Matosian truthfully told all he knew to the government. As to

this issue, Tapia-Matosian argues the case should be remanded for re-sentencing

because the district court failed to exercise independent judicial discretion and,

instead, simply “signed off” on the government’s assertion that Tapia-Matosian

had not satisfied the truthful disclosure criterion. A close review of the transcript

of the sentencing hearing belies this assertion.

       The transcript of the sentencing hearing reflects that the district court

denied Tapia-Matosian’s request for safely-valve relief only after considering

remarks and arguments of counsel and the government and responses made by

Tapia-Matosian to questions by the district court about the extent of the criminal


                                         -10-
enterprise and Tapia-Matosian’s involvement therein. In light of this

information, the district court concluded that Tapia-Matosian’s claim he was

recruited at the border was not credible and that he failed to adequately identify

the other participants in the criminal enterprise. Accordingly, the district court

found as follows: “[T]he burden is on you to satisfy the Government that you’ve

told them everything. You’ve not satisfied them of that. And, frankly, I’m not

convinced. You didn’t go through with the controlled buy, and you could have

provided more information, I think, as to the sources.” Accordingly, Tapia-

Matosian’s assertions to the contrary notwithstanding, the district court did

indeed exercise independent judicial discretion in concluding that Tapia-

Matosian was not entitled to safety-valve relief. Furthermore, the district court’s

conclusion Tapia-Matosian failed to prove his entitlement to safety-valve relief is

supported by the record and is, thus, not clearly erroneous.



                               III. CONCLUSION

      For all of the reasons set out above, the sentence imposed by the district

court is hereby AFFIRMED .

                                                ENTERED FOR THE COURT:



                                                Michael R. Murphy
                                                Circuit Judge

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