                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 24 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30025

               Plaintiff - Appellee,             D.C. No. 1:09-cr-00101-JDS

  v.
                                                 MEMORANDUM *
PEDRO GARCIA-VARGAS, a.k.a. Ulises
Anaya, a.k.a. Ulysis Anaya,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Montana
                    Jack D. Shanstrom, District Judge, Presiding

                            Submitted January 17, 2012 **

Before:        LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

       Pedro Garcia-Vargas appeals from the 120-month sentence imposed

following his guilty plea to Count One of the Second Superseding Indictment, in




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of 21 U.S.C. §§ 841(a)(1), 843 and 18 U.S.C. § 2. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Contrary to Garcia-Vargas’ contention, the district court did not clearly err

in finding Garcia-Vargas ineligible for safety valve relief under 18 U.S.C.

§ 3553(f) where Garcia-Vargas’ proffer was inconsistent with the testimony

adduced at trial by the law enforcement agent who investigated the crime and the

proffer made by his co-defendant. See United States v. Mejia-Pimental, 477 F.3d

1100, 1107 (9th Cir. 2007) (where proffer of knowledge and participation is

truthful and complete, it suffices for purposes of safety valve relief).

      AFFIRMED.




                                           2                                   11-30025
