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

                                                                               JUL 13 1998
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                        No. 97-2352
          v.                                             (D. New Mexico)
 GERARDO RAMIREZ-                                    (D.C. No. CR-97-291-JP)
 SAMANIEGO,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered 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        This order and judgment is not binding precedent, except under the doctrines of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.
      In this direct appeal, defendant Gerardo Ramirez-Samaniego (“Ramirez”)

challenges his sentence for a drug offense on the ground that the district court

erred in failing to apply the “safety valve” provision of 18 U.S.C. § 3553(f). We

affirm.



                                  BACKGROUND

      In April 1997, Mr. Ramirez was stopped by the United States Border Patrol

and found to be in possession of 2.5 pounds of cocaine. After being charged in a

one-count indictment with possession with the intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, Ramirez

pled guilty. 1 The presentence investigation report (“PSR”) stated that it appeared

Ramirez would not qualify for application of 18 U.S.C. § 3553(f). At sentencing,

the district court questioned this conclusion, and reset sentencing so that Ramirez

could be debriefed by the government.

      During the debriefing, Ramirez explained that while he was living in

Mexico, two men from whom he had occasionally purchased cocaine asked him to

transport a quantity of cocaine across the border to Albuquerque, New Mexico.

Although he had previously refused to do so, this time Ramirez accepted and



      1
        Ramirez pled guilty without having entered into a plea agreement with the United
States. R. Vol. III at 13; Appellee’s Br. at 2.

                                           -2-
made plans to have one of the two drug dealers meet him when he arrived.

Ramirez failed to provide the government with the full names of these men,

however, as well as any indication of how to contact them or any specific

information about where the drugs were supposed to be taken. R. Vol. II at 4.

      After the debriefing, a second sentencing hearing was held. At that

hearing, the Drug Enforcement Agency task force officer who had debriefed

Ramirez testified that the government felt Ramirez was being untruthful because

it is unlikely that the two drug dealers would have entrusted Ramirez with such

valuable contraband without having given him more information. 2 Ramirez

responded that the men had purposefully given him little information in an effort

to shield themselves from arrest and prosecution, and asserted that under their

plan, it was unnecessary for him to know how to contact them. Id. at 12-13.

      Ultimately, the district court found that Ramirez did not qualify for relief

under § 3553(f) because he had not “truthfully provided to the government all

information and evidence [he] has concerning the offense or offenses that were

part of the same course of conduct of [sic] a common scheme or plan.” Id. at 14.




      2
         At sentencing, the task force officer who debriefed Ramirez testified that the
cocaine found in Ramirez’ possession was valued between $13,000 and $15,000. R. Vol.
II at 13.

                                          -3-
Therefore, Ramirez was sentenced to the statutory mandatory minimum of sixty

months’ imprisonment, followed by four years’ supervised release. 3



                                    DISCUSSION

      “The district court’s specific conclusion that the defendant is or is not

eligible for relief under § 3553(f) is reviewed for clear error.” United States v.

Roman-Zarate, 115 F.3d 778, 784 (10th Cir. 1997). Ramirez bears the burden of

proving by a preponderance of the evidence that he has met the criteria contained

in § 3553(f). See United States v. Myers, 106 F.3d 936, 941 (10th Cir.), cert.

denied, 117 S. Ct. 2446 (1997).

      Section 3553(f) serves “as a ‘safety valve’ to permit courts to sentence less

culpable defendants to sentences under the guidelines, instead of imposing

mandatory minimum sentences,” United States v. Acosta-Olivas, 71 F.3d 375, 378

(10th Cir. 1995), and provides that the district court shall impose a sentence

pursuant to the sentencing guidelines, without regard to the statutory minimum, if

the defendant meets five criteria. See 18 U.S.C. § 3553(f)(1)-(5); see also

U.S.S.G. § 5C1.2 (adopting verbatim the language of § 3553(f)).


      3
        Under the guidelines alone, Ramirez’ sentencing range would have been 46-57
months. However, as the PSR correctly stated, “[p]ursuant to 5G1.1(b), where the
statutorily required minimum sentence is greater than the maximum of the applicable
guideline range, the statutorily required minimum sentence of sixty (60) months shall be
the guideline sentence.” R. Vol. IV ¶ 47.

                                           -4-
      In this case, the government concedes that Ramirez meets the requirements

of subparagraphs (1) - (4). Appellee’s Br. at 7. The only issue, therefore, is

whether he has satisfied the fifth requirement of § 3553(f), which requires that:

      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, 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.

18 U.S.C. § 3553(f)(5).

      As indicated above, at sentencing, after considering the arguments just

outlined, the district court found that Ramirez had failed to comply with the fifth

requirement of § 3553(f). The district court stated:

             As a matter of common sense, this defendant should know
      more about the identity of [the two drug dealers] than he related to
      law enforcement. It stretches the imagination to believe that he just
      happens to bump into them on a regular basis . . ., resists their
      entreaties to transport cocaine and then finally agrees to do that
      without knowing more about them. I agree with [the government]
      that because of the value of the contraband with which he was
      entrusted it doesn’t make sense that he is so lacking in knowledge of
      their identity.
             So it will be my finding that he has not satisfied 18 United
      States Code Section 3553(f)5 and therefore does not qualify for
      sentencing below the statutory mandatory sentence of 60 months.

R. Vol. II at 14-15.




                                         -5-
      The district court’s conclusion that Ramirez failed to provide all the

information likely to be in his possession is not clearly erroneous. See Anderson

v. City of Bessemer City, 470 U.S. 564, 573-74 (1985); Bill’s Coal Co. v. Board

of Pub. Util., 887 F.2d 242, 244 (10th Cir. 1989). AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Stephen H. Anderson
                                       Circuit Judge




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