                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        January 8, 2008
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                      TENTH CIRCUIT



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                              No. 07-2003
         v.                                                 (D. New Mexico)
                                                        (D.C. No. CR-04-561-LH)
    JOSE I. RIVERA-MORALES,

                Defendant-Appellant.


                              ORDER AND JUDGMENT*


Before, HENRY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and HOLMES,
Circuit Judge.



        Jose Ignacio Rivera-Morales pleaded guilty to one count of conspiring to distribute

50 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846,

pursuant to a plea agreement. The court sentenced Mr. Rivera-Morales to 78 months’

imprisonment – the low end of the advisory Guidelines range – followed by three years of

supervised release. Mr. Rivera-Morales now challenges his sentence. Our jurisdiction

arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.



*
  This order and judgment is not binding precedent except under the doctrines of law of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.
                                   I. BACKGROUND

A. Factual Background

       On March 4, 2004, a New Mexico State Police officer stopped a car that Edwin

Arturo Talamantes was driving, because the front passenger, Leslie Gonzalez, was not

wearing a seatbelt. Mr. Rivera-Morales was sitting in the backseat. The officer smelled

an odor of marijuana coming from the car, and asked Ms. Gonzalez to step out. The

officer then questioned Mr. Talamantes, who gave a false name and date of birth. Mr.

Talamantes claimed they had driven to Arizona in order to pick up his cousin. When the

officer asked Mr. Rivera-Morales for the city they were to drive to, he answered that they

had gone to Ajo, Arizona. After Ms. Gonzalez gave the officer a different purpose for

and route of their trip, the officer asked if he could search the car, and Ms. Gonzalez

consented. Mr. Talamantes also consented to the search. Mr. Rivera-Morales said that

although it was not his car, the officer could search it. Both Mr. Talamantes and Mr.

Rivera-Morales denied that there were any weapons, drugs, or large amounts of cash in

the car.

       With the assistance of a dog, the officer found burlap sacks containing 93.06

kilograms of marijuana in the trunk. Both Mr. Talamantes and Ms. Gonzalez admitted to

knowing that the trip was to transport the marijuana from Deming to Albuquerque, but

claimed that the marijuana belonged to Mr. Rivera-Morales. Underneath the marijuana,

the officer found a fully loaded assault rifle. Mr. Talamantes said the rifle belonged to

him and that he was going to sell it to the person who gave them the marijuana. Mr.

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Rivera-Morales made no statement at the time of his arrest, but later admitted to

accompanying “another individual” to get marijuana, and that he was expecting to be paid

$1,000 in return. Rec. vol. II, at ¶ ¶ 11-23 (Presentence Report (“PSR”).



B. Procedural Background

       On June 30, 2004, Mr. Rivera-Morales pleaded guilty to conspiring to distribute 50

kilograms of marijuana. Four months later, a pretrial services officer filed a petition to

arrest Mr. Rivera-Morales because he had absconded. On February 2, 2006, federal

authorities found and arrested him in Texas.

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

that calculated a base offense level of 24. Mr. Rivera-Morales received a two-level

increase pursuant to United States Sentencing Guidelines (“USSG”) § 2D1.1(b)(1)

because a firearm was in the trunk with the marijuana. He also received a two-level

increase for obstruction of justice pursuant to USSG § 3C1.1 because he absconded

before sentencing and was a fugitive for more than a year. The total offense level was 28

and, having no criminal history, he was placed in criminal history category I. The

resulting sentencing range recommended by the Guidelines was 78 to 97 months.

       Mr. Rivera-Morales objected to the presentence report, specifically the two-level

increase for possession of a firearm during the commission of the offense. He also

objected to the determination that he was not eligible for the two-point “safety valve”

reduction under USSG § 5C1.2(a). Mr. Rivera-Morales additionally argued that he was

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entitled to a mitigating role adjustment, and that he was also entitled to an adjustment for

acceptance of responsibility. Mr. Rivera-Morales urged the court to sentence him to 27

months in prison. The district court ultimately agreed with the probation officer and the

government, sentencing Mr. Rivera-Morales to 78 months in prison, the low end of the

Guidelines range.



                                     II. DISCUSSION

       In the wake of United States v. Booker, 543 U.S. 220 (2005), we review sentencing

decisions for reasonableness. Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456, 2464

(2007); United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).

Sentencing has both procedural and substantive components. United States v. Cage, 451

F.3d 585, 591 (10th Cir. 2006). That is, both the length of the sentence and the method

by which it was determined (i.e., the consideration of the Section 3553(a) factors) must be

reasonable. Kristl, 437 F.3d at 1055.

       Our reasonableness inquiry involves two steps. First, we must determine “whether

the district court considered the applicable Guidelines range, reviewing its legal

conclusions de novo and its factual findings for clear error.” Id. If we find that it did, we

presume it is reasonable. See Rita, 127 S. Ct. at 2462 (holding that appellate courts may

apply presumptions of reasonableness to such sentences). In order to rebut this

presumption, Mr. Rivera-Morales must show that based on the sentencing factors in 18

U.S.C. § 3553(a), the sentence is unreasonable. Kristl, 437 F.3d at 1055.

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       On appeal, Mr. Rivera-Morales argues that the sentence was procedurally

unreasonable because (1) a two-level increase under USSG § 2D1.1(b)(1) is improper

because the firearm was inaccessible and was for a purpose unrelated to the crime; (2) he

should have been given an opportunity to qualify for the safety valve under USSG §§

2D1.1(b)(9) & 5C1.2(a)(1)-(5); and (3) he should have been given a two-level reduction

under USSG § 3B1.2(b) due to his relatively minor role in this offense. Mr. Rivera-

Morales also argues that the sentence – a term of imprisonment of 78 months – is

substantively unreasonable.



A. Procedural Reasonableness

       First, we must address whether the district court considered the applicable

Guidelines range reviewing its legal conclusions de novo and its factual findings for clear

error. Kristl, 437 F.3d at 1055.



1. Increase for Possession of a Firearm

       We review the district court’s determination that Mr. Rivera-Morales possessed a

firearm under USSG § 2D1.1(b)(1) for clear error. United States v. Topete-Plascencia,

351 F.3d 454, 458 (10th Cir. 2003).

       USSG § 2D1.1(b)(1) provides that the offense should be increased two levels “[i]f

a dangerous weapon (including a firearm) was possessed.” The government bears the

initial burden of showing, by a preponderance of the evidence, that a firearm was

                                             5
possessed. United States v. Pompey, 264 F.3d 1176, 1180. To prove possession under §

2D1.1(b)(1), “the government need only show that the weapon was found in the same

location where drugs or drug paraphernalia are stored.” United States v. Williams, 431

F.3d 1234, 1237 (10th Cir. 2005) (internal quotation marks omitted). In this case, the

rifle was discovered in the trunk, under the marijuana. The government therefore was

easily able to prove “a temporal and spatial relation existed between the weapon, the drug

trafficking activity, and the defendant.” United States v. Roederer, 11 F.3d 973, 982

(10th Cir. 1993) (internal quotation marks omitted), thereby meeting its burden of

showing that a firearm was possessed.

       Once the government meets this initial burden, the burden shifts to the defendant

to show that it was “clearly improbable” that the gun was connected to the offense.

Pompey, 264 F.3d at 1181; see also, USSG § 2D1.1, cmt. n.3. Again, the gun, which Mr.

Rivera-Morales knew was present, was found under 93 kilograms of marijuana. Mr.

Rivera-Morales argues that because the gun was not easily accessible, it is clearly

improbable that it was connected to the offense. Aplt’s Br. at 14-15. We are not

persuaded. We can easily envision a situation in which the defendants unload the

contraband to be sold, something goes awry with the deal, and the defendants turn to the

gun to inflict either intimidation or actual injury. Regardless of whether Mr. Rivera-

Morales himself ever envisioned such a scenario, the burden is his to show that it is

clearly improbable that the firearm was connected to the offense.

       Mr. Talamantes, the driver of the vehicle and Mr. Rivera-Morales’s co-defendant,

                                             6
said that he intended to sell the rifle to the person who sold them the marijuana.

However, the gun was in the car and fully loaded after the marijuana purchase. In light of

this evidence, it was not clear error for the district court to find that Mr. Rivera-Morales

did not show that it was “clearly improbable” that the gun was connected to the offense,

and to accordingly apply the two-level increase under § 2D1.1(b)(1).



2. The safety valve provision

       We review a district court’s application of the Guidelines’ safety valve provisions

for clear error. United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006).

       The “safety valve” provision of USSG § 2D1.1(b)(9) provides that if the defendant

meets the five criteria set forth in § 5C1.2(a), then the offense level should be decreased by

two levels. Section 5C1.2(a) provides:

       (1) the defendant does not have more than 1 criminal history point . . . ;      (2) the defendant did
       (3) the offense did not result in death or serious bodily injury to any person;
       (4) the defendant was not an organizer, leader, manager, or supervisor of others in the
       offense, as determined under the sentencing guidelines and was not engaged in a
       continuing criminal enterprise . . . ; and
       (5) not later than the time of the sentencing hearing, the defendant has truthfully
       provided to the Government all information and evidence the defendant has concerning
       the offense or offenses that were part of the same course of conduct or of a common
       scheme or plan . . . .
       Mr. Rivera-Morales clearly met three of the five criteria: he had no criminal

history, the offense did not result in death or serious bodily injury, and he was not an

organizer, leader, or supervisor of others in the offense. Id. The two remaining criteria

that merit further discussion are: (1) that “not later than the time of the sentencing hearing,


                                               7
the defendant has truthfully provided to the Government all information and evidence the

defendant has concerning the offense or offenses . . . .”; and (2) that Mr. Rivera-Morales

did not possess a firearm. Id. (emphasis added).

       As to Section 5C1.2(a)(5)’s requirement that Mr. Rivera-Morales “truthfully

provide[] . . . the Government [with] all information and evidence the defendant has

concerning the offense or offenses . . . ,” USSG § 5C1.2(a)(5) (emphasis added), here, Mr.

Rivera-Morales offered to debrief the government before his sentencing, but the

government declined. Though it is unclear why the government declined Mr. Rivera-

Morales’s offer of information, the denial does not qualify him for a two-level reduction

under the safety valve provision.

       We held in Stephenson a defendant cannot meet his duty to provide the government

with all information he has through the disclosure of some information with only an offer

as to the rest. 452 F.3d at 1182. The term “provide” in § 5C1.2(a)(5) “would be rendered

meaningless if a defendant could qualify for the safety valve adjustment by simply

opening his mouth and expressing a willingness to provide information.” Stephenson, 452

F.3d at 1182. Therefore, the mere offer to provide information is not enough. Mr. Rivera-

Morales would have had to actually provide all information he had to the government.

Though the government made this task significantly more difficult by declining Mr.

Rivera-Morales’s offer to de-brief, under § 5C1.2(a)(5), the burden is still on him to

provide the information. For the foregoing reasons, the district court did not commit clear

error by not giving Mr. Rivera-Morales a two-level reduction under the safety valve

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provision.

       Holding that it was not clear error for the district court to choose not to apply the

safety valve provision because of Mr. Rivera-Morales’s failure to de-brief, it is not

necessary for us to address the firearm criterion. It is worth briefly noting, as the

government, to its credit, did at oral argument, that a finding of possession of a firearm for

the purposes of enhancement under § 2D1.1 (as the district court found here) does not

necessarily preclude a § 5C1.2(a)(2) reduction.2



3. Reduction for a relatively minor role

       We review the district court finding that Mr. Rivera-Morales was not a minor

participant under USSG § 3B1.2(b) for clear error. United States v. Lockhart, 37 F.3d

1451, 1455 (10th Cir. 1994).

       USSG § 3B1.2(b) provides that a defendant’s offense level should be decreased by

two levels “[i]f the defendant was a minor participant in any criminal activity.” The

commentary to that rule states, “This section provides a range of adjustments for a

defendant who plays a part in committing the offense that makes him substantially less


2
   United States v. Zavalza-Rodriguez, 379 F.3d 1182 (10th Cir. 2004). While
constructive possession is enough to prove that a gun “was possessed” under § 2D1.1, it
is not necessarily enough to prove that a defendant “possessed a firearm” under §
5C1.2(a)(2). Id. at 1186-88. The evidentiary burdens on the defendant are different for
each. “Whereas the defendant must show that it is clearly improbable that a gun was not
used in connection with the offense to avoid the § 2D1.1 sentence enhancement,” we
reasoned, “[a] defendant . . . need only demonstrate by a preponderance of the evidence
eligibility for the safety valve.” Zavalza-Rodriguez, 379 F.3d at 1187.

                                               9
culpable than the average participant.” USSG § 3B1.2, cmt. n.3(A) (emphasis added). It

is not enough to show that a defendant was the least culpable in a given offense. Lockhart,

37 F.3d at 1455. Instead, the defendant bears the burden of proving that he or she was a

minimal or minor player in the offense. Id. Although there is no categorical rule on the

matter, we routinely deny minor participant classification to drug couriers. United States

v. Caruth, 930 F.2d 811, 815 (10th Cir. 1991) (noting several Tenth Circuit cases denying

drug couriers minor participant status).

       Mr. Rivera-Morales admitted that he was in the car in order to help drive the

marijuana to its destination. He was present when the marijuana was loaded into the car

and expected to be paid $1,000 for his driving services. Further, Mr. Talamantes and Ms.

Gonzales both claimed the marijuana belonged to Mr. Rivera-Morales. Based on these

facts, the district court found that Mr. Rivera-Morales had not proved “that he is more or

less culpable than the other defendant.” Rec. vol. III, at 19. Given the evidence, it was not

clear error for the district court to find that Mr. Rivera-Morales was not substantially less

culpable than the average defendant, and thus did not qualify for the two-level reduction

under § 3B1.2(b).



4. The district court’s explanation

       Mr. Rivera-Morales complains that the district court did not discuss the sentencing

factors individually, but instead uttered one sentence indicating that they had been

considered. While in many cases it would be helpful for district courts to lay out their

                                              10
reasons for a certain sentence in great detail, it is not usually necessary. Rita, 127 S. Ct. at

2468-69. Where, as here, a sentence falls within the Guidelines, “§ 3553(c) requires the

court to provide only a general statement of the reasons for its imposition of the particular

sentence.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007) (internal

quotation marks omitted). While Section 3553(a) does require courts to consider certain

factors, it nowhere imposes a duty to specifically address those factors on record. Id. at

1201. The district court stated that it had considered all the Section 3553(a) factors, as

well as the presentence report, Mr. Rivera-Morales’s history and characteristics, the kinds

of sentences available, and the advisory Guidelines sentence. Moreover, the court

explicitly noted that the defense ably raised a number of issues and thanked Mr. Rivera-

Morales’s counsel for doing so. Rec. vol. III, at 18.

       After examining these four issues, we hold that the district court did not err in its

understanding or application of the Guidelines, and there was no clear error regarding

findings of fact.



B. Substantive Reasonableness

       We review a claim that a sentence is unreasonably long for “reasonableness.”

United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006). “[R]easonableness

review has functioned – in practice if not in name – as review for abuse of discretion.”

United States v. Angel-Guzman, ___ F.3d ___, No. 06-4003, 2007 WL 3146825, at *6

(10th Cir. Oct. 30, 2007). See also, Gall v. United States, ___ S. Ct. ___, No. 06-7949,

                                               11
2007 WL 4292116, at *6 (Dec. 10, 2007) (“Our explanation of ‘reasonableness’ review in

the Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard

of review now applies to appellate review of sentencing decisions.”). A sentence within

the properly calculated Guidelines range is presumptively reasonable on appeal. Kristl,

437 F.3d at 1054.

       Mr. Rivera-Morales argues that the district court violated the statutory mandate that

a sentence be “sufficient, but not greater than necessary, to comply with the purposes” set

forth in §3553(a)(2). While the district court must employ this standard in crafting a

sentence, we review the sentence only for reasonableness. See Rita, 127 S. Ct. at 2465.

Because we have held that Mr. Rivera-Morales’s sentence was properly calculated under

the Guidelines, we presume it to be reasonable. Angel-Guzman, 2007 WL 3146825, at *8.

Even though, by presuming reasonableness, we give significant deference to the district

court’s decision, a district court must still apply the § 3553(a) sentencing factors. See Gall,

2007 WL 4292116, at *7. In order to rebut this presumption therefore, Mr. Rivera-

Morales must show that in light of the § 3553(a) factors, the sentence is unreasonable.

United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).

       Section 3553(a) requires the sentencing court to “impose a sentence sufficient, but

not greater than necessary, to comply with the purposes [of sentencing] set forth in

[Section 3553(a)(2)].” Section 3553(a)(2)’s factors include “the need for the sentence

imposed . . . to promote respect for the law, and to provide just punishment [and] to afford

adequate deterrence . . . .” Drug trafficking is a serious offense. United States v. Carr,

                                              12
939 F.2d 1442, 1448 (10th Cir. 1991). Further, though Mr. Rivera-Morales had no

criminal history, he absconded after pleading and was a fugitive from the court for at least

fifteen months before being found and sentenced. Considering these facts, in light of the

above sentencing factors, the district court did not abuse its discretion in finding that a 78-

month sentence – the low-end of the Guidelines range – was sufficient but not greater than

necessary to comply with § 3553(a)(2)’s purposes.

       Mr. Rivera-Morales has not met his burden of showing that the low-end of the

Guidelines sentence is unreasonable. The fact that one sentence is reasonable does not

mean that all others would be unreasonable, but to affirm, we must simply find “the

chosen sentence, standing alone, is reasonable.” United States v. Jarillo-Luna, 478 F.3d

1226, 1230 (10th Cir. 2007) (citing Booker, 543 U.S. at 261). Accordingly, we hold this

sentence to be substantively reasonable.



                                    III. CONCLUSION

       For the foregoing reasons, we AFFIRM the sentence imposed by the district court.

                                                   Entered for the Court


                                                   Robert H. Henry
                                                   Circuit Judge




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