                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 15 2005
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 03-1480
                                                 (D. Ct. No. 02-CR-290-B)
 ABRAHAM BARRAGAN, also known                            (D. Colo.)
 as “Abran”, also known as “El
 General”,

               Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McKAY, and EBEL, Circuit Judges.



      Plaintiff-Appellant Abraham Barragan pleaded guilty to possession with

intent to distribute five kilograms or more of cocaine and to aiding and abetting

in that offense. The District Court sentenced him to 120 months’ imprisonment.

Mr. Barragan contends that the District Court erred in refusing to apply the

so-called “safety valve” provision of 18 U.S.C. § 3553(f) and United States



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
Sentencing Guidelines § 5C1.2(a), 1 which would have allowed him to be

sentenced beneath the otherwise applicable 120-month mandatory minimum for

his offense. The District Court determined that the “safety valve” did not apply

because Mr. Barragan failed to satisfy the statutory requirement that he “truthfully

provide[ ] 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.” 18 U.S.C. § 3553(f)(5). We take jurisdiction

under 28 U.S.C. § 1291 and AFFIRM.    2



                               I. BACKGROUND

      Mr. Barragan is a native of Mexico but has enjoyed legal resident status in

the United States for many years. For about the last five years, he has been

employed as a seasonal worker at Echter’s Gardens in Arvada, Colorado. Jose

Mendez, a paid informant for the Denver Police Department (“DPD”), also

worked at Echter’s Gardens during this time.

      Sometime in 2001 or early 2002, Mr. Mendez asked Mr. Barragan if he

could help to arrange the transport of drugs to Mr. Mendez’s “boss,” Detective


      1
        18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a) provide identical
requirements. To avoid confusion, we refer only to § 3553(f) for the remainder
of this opinion.
      2
       Because Mr. Barragan does not assert that the District Court erred under
United States v. Booker, — S.Ct. —, 2005 WL 50108 (2005), we need not
consider its application to his appeal.

                                          -2-
Jose Garcia of the DPD, after which Mr. Barragan would be paid $2,000. Mr.

Barragan ultimately agreed and gave Mr. Mendez the business card of a man Mr.

Barragan believed might be involved in the drug trade named Alfredo Pando. Mr.

Pando apparently resides in Juarez, Mexico. Thereafter, Mr. Mendez introduced

Mr. Barragan to Detective Garcia, who was posing as an undercover agent. Mr.

Barragan and Detective Garcia discussed prices and quantities for a potential

cocaine transaction. On April 1, 2002, they agreed that Mr. Barragan would

provide Detective Garcia with eight kilograms of cocaine for $144,000.

      On April 14, nearly eight kilograms of cocaine arrived in Denver hidden in

a Ford Explorer driven by Jaime Cervantes. Mr. Cervantes phoned Mr. Barragan

upon arriving in Denver, and the two men met each other downtown. Mr.

Barragan then led Mr. Cervantes to the motel where Mr. Barragan was living; and

shortly thereafter, Mr. Mendez arrived. Mr. Barragan called Detective Garcia to

tell him that he had the cocaine. The men left the motel to deliver the cocaine to

Detective Garcia, with Mr. Barragan riding in Mr. Mendez’s car and the Explorer

following. Police officers acting at Detective Garcia’s direction stopped the

Explorer and found nearly eight kilograms of cocaine hidden behind the vehicle’s

two front quarter panels.

      The Government indicted Mr. Barragan on three separate counts relating to

these events. In exchange for the Government’s promise to move to dismiss the


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other two counts, Mr. Barragan pleaded guilty to one count of possession with

intent to distribute five kilograms or more of cocaine under 21 U.S.C. §§

841(a)(1) and (b)(1)(A)(ii) and aiding and abetting in that offense under 18

U.S.C. § 2(a). The agreement also contained a stipulation of facts relevant to the

offense and to sentencing. Mr. Barragan signed the agreement and acknowledged

those facts to be true. Moreover, the plea agreement expressly provided that if

Mr. Barragan met all the requirements for “safety valve” consideration pursuant

to 18 U.S.C. § 3553(f), the Government would recommend that the sentencing

court impose a sentence in accordance within the applicable guidelines range of

87–108 months without regard to the statutory minimum sentence of 120 months.

At the sentencing hearing, however, the District Court found that Mr. Barragan

was not being fully truthful about his participation in the offense; as such, it

determined he was not eligible for application of the safety valve provision and

sentenced him to 120 months’ imprisonment.

      On appeal, Mr. Barragan makes two arguments. First, he contends that the

District Court committed legal error because it failed to consider the plea

agreement’s stipulated facts in determining whether he qualified for the safety

valve provision. Second, he contends that the District Court committed clear

error in finding that he did not provide the Government with all information and

evidence he had concerning the offense.    We address each argument in turn.


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                                  II. DISCUSSION

A.      The District Court Considered the Stipulated Facts in the Plea Agreement

        The “safety valve” provision under 18 U.S.C. § 3553(f)(1)–(5) directs

district courts to sentence offenders in accordance with the applicable guidelines

without regard to the statutory minimum sentence if five eligibility criteria are

met. It is undisputed that Mr. Barragan meets the first four criteria; we only

consider the fifth. Section 3553(f)(5) states that an offender is entitled to the

safety valve provision if:

     [N]ot 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, but the fact that
     the defendant has no relevant or useful other information to provide or
     that the Government is already aware of the information shall not
     preclude a determination by the court that the defendant has complied
     with this requirement.

        Mr. Barragan contends that by its terms, § 3553(f)(5) requires district

courts to take into account a defendant’s sworn acknowledgment of facts in a plea

agreement in determining whether he provided the Government with all

information about the offense. Mr. Barragan argues that the District Court failed

to do so and that this failure constitutes legal error.

        Mr. Barragan, however, did not raise this issue before the District Court.

In his objections to the presentence report, he only argued that he was a minor

player and had no more information to divulge—not that his statements in the plea

                                          -5-
agreement were being slighted. Mr. Barragan reiterated those arguments during

the sentencing hearing, never complaining that the District Court had overlooked

the stipulation of facts in the plea agreement. Therefore, because Mr. Barragan

raises this issue for the first time on appeal, we review for plain error. Fed. R.

Crim. P. 52(b). To notice plain error under Rule 52(b), defendant must show that:

(1) there was error; (2) the error was “plain” or “obvious;” (3) the error affected

his substantial rights; and (4) the error seriously affected that fairness, integrity,

or public reputation of judicial proceedings.     United States v. Gonzalez-Edeza    ,

359 F.3d 1246, 1250 (10th Cir. 2004).

       Mr. Barragan does not satisfy the first prong of plain error review.

Assuming that the District Court must consider facts contained in Mr. Barragan’s

plea agreement, it is clear from the record that the District Court did so in this

case. At the conclusion of testimony on behalf of both Mr. Barragan and the

Government, the District Court found that Mr. Barragan’s testimony “runs

contrary to the skeletal outline of the agreed stipulation of factual basis set forth

in the Plea Agreement, a factual recitation which Mr. Barragan acknowledged

under oath to be true.” The District Court also specifically referred to the plea

agreement to discuss the communications that took place between Detective

Garcia and Mr. Barragan. Mr. Barragan’s argument that the District Court

ignored the plea agreement is simply without merit.


                                            -6-
B.     The District Court’s Factual Findings Are Not Clearly Erroneous

       Mr. Barragan next argues that the District Court erred in finding that he had

not truthfully provided the Government with all information about the offense.

Mr. Barragan has the burden of proving, by a preponderance of the evidence, the

applicability of the “safety valve.”    United States v. Verners , 103 F.3d 108, 110

(10th Cir. 1996). “In order to assess whether a defendant has satisfied subsection

5, a court must determine the quality and completeness of all information

furnished to the government by Defendant.”         United States v. Gama-Bastidas    , 142

F.3d 1233, 1242 (10th Cir. 1998). Whether that information is truthful and

complete requires a factual finding by the district court.       Id. at 1243.

       A district court’s factual findings are reviewed for clear error.        United

States v. Garcia , 182 F.3d 1165, 1175 (10th Cir. 1999).         On clear error review,

we may reverse “only if the district court’s finding was without factual support in

the record or we are left with the definite and firm conviction that a mistake has

been made.” United States v. Cernobyl, 255 F.3d 1215, 1221 (10th Cir. 2001)

(internal quotation omitted). This standard, however, “does not entitle a

reviewing court to reverse the finding of the trier of fact simply because it is

convinced that it would have decided the case differently.”         Anderson v. City of

Bessemer City , 470 U.S. 564, 573 (1985). “In applying the clearly erroneous

standard . . . appellate courts must constantly have in mind that their function is


                                            -7-
not to decide factual issues   de novo .” Zenith Radio Corp. v. Hazeltine Research,

Inc. , 395 U.S. 100, 123 (1969).

       Here, Mr. Barragan stipulated to the following facts in the plea agreement:

On April 1, Mr. Barragan negotiated with Detective Garcia for the purchase of

eight kilograms of cocaine for $144,000. On April 13, Mr. Barragan called

Detective Garcia and told him the cocaine was on its way. On April 14, law

enforcement officers saw Mr. Barragan meet with Mr. Cervantes in downtown

Denver. After the meeting, Mr. Cervantes got into an Explorer and followed Mr.

Barragan back to the motel where he was staying. Upon returning to the motel,

Mr. Barragan called Detective Garcia and told him that he wanted to bring the

cocaine to his residence. En route, the Explorer was stopped and searched, and

Mr. Barragan and Mr. Cervantes were arrested.

       The Government supplemented this version of events during Mr.

Barragan’s sentencing hearing. According to the testimony of Detective Garcia,

Mr. Mendez is a reliable informant who told him that a man named Abraham

knew parties in Mexico and could arrange for a delivery of cocaine. Detective

Garcia also testified that he and Mr. Barragan spoke on numerous occasions about

the amount of cocaine to be obtained, its price, and to which city it would be

delivered. Mr. Cervantes testified that Mr. Pando asked him to bring a load of

cocaine to Denver to a man Mr. Pando had previously dealt with named “The


                                          -8-
General,” and that Mr. Barragan identified himself over the phone using this

name. Testimony also revealed that Mr. Cervantes gave investigators a phone

number he claimed belonged to Mr. Pando. Several calls were made from that

number to Mr. Barragan in the few weeks and days leading up to the delivery of

cocaine to Denver.

      Mr. Barragan testified, however, that he had never bought or sold drugs

before, that he had only met Mr. Pando once, and that he did not know whether

Mr. Pando was a drug dealer. Mr. Barragan also insisted that Mr. Mendez, not he,

had set up the deal with Mr. Pando. Testimony also showed that the phone

number Mr. Cervantes claimed was Mr. Pando’s was registered under a different

name. Furthermore, Mr. Barragan claimed he had never heard anyone refer to

him as “The General.” Mr. Barragan’s niece also testified that her uncle is

unsophisticated and lacks leadership skills, implying that he is incapable of

structuring drug deals. Finally, Mr. Barragan stated that he has memory problems

due to a head injury and three heart attacks; thus, counsel for Mr. Barragan stated

that he “has a great deal of confusion in trying to remember these events.”

      The District Court found the Government’s version of events to be more

believable, finding “the truth of the matter” to be that Mr. Barragan structured

and arranged the drug deal from a source in Juarez, that this source entrusted Mr.

Barragan with eight kilograms of cocaine, and that Mr. Barragan was known to


                                        -9-
his source as “The General” and identified himself that way to Mr. Cervantes.

This finding was based on the court’s belief that “[i]t defies credibility to believe

that the . . . Juarez source would simply transport eight kilograms of cocaine to an

unknown, untested individual simply identified over the telephone as a Mr.

Mendez and trust that individual to return $144,000 to that source for that

cocaine.” As such, the District Court found “that Mr. Barragan has not been

completely truthful, has not provided full candor, and has, I infer, for whatever

reason, other information and knowledge which he declines to relate to the

government. He’s simply not eligible for the application of the safety valve

provision.”

      Mr. Barragan maintains that the District Court did not give sufficient

weight to the possibility that Mr. Mendez, as a professional informant well-versed

in drug trafficking knowledge, could have structured a $144,000 drug transaction

with a person who has never met him; to Mr. Barragan’s intelligence level; to the

fact that Mr. Mendez did not live the flashy lifestyle associated with drug dealers;

to the fact that Mr. Cervantes was the only person to testify that Mr. Barragan

introduced himself as “The General”; to Mr. Cervantes’ testimony that he knew

another man named “The General” in Kansas City; to the fact that Mr. Cervantes

had lied in a previous conversation with investigators; and to the motive of Mr.

Mendez, a paid informant, to make the deal happen while making Mr. Barragan


                                         - 10 -
appear responsible.

      Nonetheless, there is ample support in the record for the District Court’s

finding. See Cernobyl, 255 F.3d at 1221. Moreover, after a review of the record,

we are not left with the definite and firm conviction that a mistake has been

committed. See id. The District Court’s finding, therefore, is not clearly

erroneous.

                               III. CONCLUSION

      For the foregoing reasons, we AFFIRM the sentence imposed by the

District Court.

                                       ENTERED FOR THE COURT,


                                       Deanell Reece Tacha
                                       Chief Circuit Judge




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