                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit

                                                                                DEC 18 1998
                         UNITED STATES COURT OF APPEALS
                                                                           PATRICK FISHER
                                                                                       Clerk
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 97-2329
                                                       (D.C. No. CR-97-80-LH)
 JOHNNY RAY MONTOYA,                                   (District of New Mexico)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before PORFILIO, MCWILLIAMS, and HENRY, Circuit Judges.




       This case presents a single issue of whether appellant’s possession of a firearm

which he kept in the same closet as the controlled substance he distributed provides

sufficient evidence to deny him the benefit of the sentencing “safety valve,”1 18 U.S.C.


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
       1
           The “safety valve” allows departure below minimum sentencing.
§ 3553(f)(1)-(5), in the absence of any evidence he ever possessed, used, or carried any

dangerous weapon in connection with the offense. Notwithstanding an inventive oral

argument, we believe this case is absolutely controlled by United States v. Hallum, 103

F.3d 87, 89 (10th Cir. 1996), a case this panel cannot overrule. United States v. Foster,

104 F.3d 1228, 1229 (10th Cir. 1997). Accordingly, we AFFIRM the judgment of the

district court.


                                          ENTERED FOR THE COURT


                                          John C. Porfilio
                                          Circuit Judge




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