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

                                                                      December 21, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                         Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 05-2023
 v.
                                                (D.C. No. CR-04-66-03-BB)
                                                        (D. N.M. )
 JOSE MERCEDES GAMIZ-MORGA,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Defendant-Appellant Jose Mercedes Gamiz-Morga (“Gamiz”) pled guilty to

one count of conspiring to distribute heroin. He was subject to a mandatory

minimum ten-year prison sentence. See 21 U.S.C. § 841(a), (b)(1)(A)(i). Gamiz

asserted, however, that he fell within the statutory safety valve to mandatory

sentencing, which would permit the district court to sentence Gamiz below the


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
mandatory minimum. See 18 U.S.C. § 3553(f). 1 To be eligible for the safety


      1
            The safety-valve provision specifically provides that

      [n]othwithstanding any other provision of law, in the case of an offense
      under . . . 21 U.S.C. 841, 844, 846 . . . , the court shall impose a
      sentence pursuant to guidelines promulgated by the United States
      Sentencing Commission . . . without regard to any statutory minimum
      sentence, if the court finds at sentencing, after the Government has been
      afforded the opportunity to make a recommendation, that –

                   (1) the defendant does not have more than 1 criminal
            history point, as determined under the sentencing
            guidelines;

                   (2) the defendant did not use violence or credible
            threats of violence or possess a firearm or other dangerous
            weapon (or induce another participant to do so) in
            connection with the offense;

                  (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, as defined in
            section 408 of the Controlled Substances Act; 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, but the fact
            that the defendant has no relevant or useful 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.
                                                                        (continued...)

                                        -2-
valve, Gamiz had to meet five requirements. See id. The district court found,

however, that Gamiz had failed to meet the fifth requirement: “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.” Id. § 3553(f)(5). Because the district court’s factual finding

was not clearly erroneous, we AFFIRM Gamiz’s sentence.

I.    FACTS 2

      Federal Drug Enforcement Agency (“DEA”) agents followed Antonio

Meza-Aguilar (“Meza”) after he crossed the Mexican-American border at El Paso,

Texas. Meza met Juan Carlos Morales-Garcia (“Morales”) and the two took a bus

to Belen, New Mexico. The agents contacted the two men in the Belen

convenience store near where the bus had dropped them off. The agents

discovered heroin in both men’s shoes, as well as in an extra pair of shoes that

Morales was carrying. The agents confiscated a total of 1.48 kilograms of heroin

from Meza and Morales. The agents then arrested Meza and Morales.


      1
          (...continued)

18 U.S.C. § 3553(f).
      2
             The parties do not dispute the basic facts underlying Gamiz’s
conviction. These facts are taken from the Presentence Report (“PSR”). Gamiz
did not object to the PSR’s rendition of these facts.

                                        -3-
      Meza told the agents that he was to be picked up at the convenience store

by a gray truck. Further, Meza and Morales were each to be paid $1,800 for

transporting the heroin. Both Meza and Morales acknowledged having similarly

delivered drugs on several occasions.

      A gray truck, an Isuzu Rodeo, followed by a white Buick Regal, soon twice

drove through the convenience store parking lot. Gamiz, a passenger in the

Rodeo, called Meza’s cell phone four times, while the driver of the Regal called

Meza once. These callers informed Meza that they were in the parking lot

waiting to pick him up. The agents contacted the occupants of both vehicles.

When the agents searched the Rodeo, they found exactly $4,000 in the glove

compartment.

      The Government charged Gamiz with one count of conspiring to distribute

heroin and one count of possessing heroin with the intention of distributing it.

Gamiz pled guilty to the first count, conspiring to distribute more than one

kilogram of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and

§ 846. 3 That conviction carried a ten-year statutory mandatory minimum


      3
              21 U.S.C. § 841(a)(1) makes it “unlawful for any person knowingly
or intentionally . . . to manufacture, distribute, or dispense, or possess with intent
to manufacture, distribute, or dispense, a controlled substance.” And
§ 841(b)(1)(A)(i) provides that, “[i]n the case of a violation of subsection (a) of
this section involving . . . 1 kilogram or more of a mixture or substance
containing a detectable amount of heroin . . . such person shall be sentenced to a
                                                                         (continued...)

                                         -4-
sentence. See 21 U.S.C. § 841(b)(1)(A)(i). However, the plea agreement

provided that “[p]ursuant to U.S.S.G. § 5C1.2, [Gamiz] may be eligible for the

safety valve provisions set forth at 18 U.S.C. § 3553(f). If [Gamiz’s] eligibility is

established, he would be entitled to a reduction of two (2) levels from his base

offense level as calculated under the sentencing guidelines.” The plea agreement

also indicated that

      [t]he United States reserves the right, pursuant to U.S.S.G. § 3B1.2, to
      assess whether [Gamiz] was a minor participant in the criminal activity
      underlying this agreement following his debriefing. Should [Gamiz]
      give truthful information and evidence demonstrating he was a minor
      participant, the United States would consider [an additional] reduction
      of two (2) levels from the base offense level as calculated under the
      sentencing guidelines.

      Faced with these possibilities, Gamiz met with the Government. The

information he gave the Government during this debriefing indicated the

following: The night before he was arrested, Gamiz had met Jose Angel Sanchez

Ibarra in a bar. Gamiz had also seen Ibarra the next morning, December 15, 2003.

In Gamiz’s presence, Ibarra had telephoned Meza that morning, using a cell phone

with an Albuquerque number. Gamiz had agreed with Ibarra to pick up two men



      3
       (...continued)
term of imprisonment which may not be less than 10 years or more than life . . . .”
21 U.S.C. § 846 further provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.”

                                         -5-
at the convenience store and deliver them to a Wal-Mart parking lot, where Ibarra

would be. For his trouble, Ibarra would pay Gamiz gas money. Gamiz denied

knowing any of the other participants in this drug exchange, except for the driver

of the Rodeo, a man named Burciaga. The $4,000 in the Rodeo was money

Gamiz had saved up from work.

      Agent Perry testified at Gamiz’s sentencing proceeding that Gamiz’s story

did not add up. The Agents knew Ibarra, but he lives in Mexico and refuses to

enter the United States because he believes there has been a warrant issued in the

United States for his arrest. And there were no records that Ibarra had crossed the

Mexican-American border during this time period. Further, although Gamiz

testified that he had seen Ibarra call Meza using an Albuquerque cell phone

number, Meza’s phone records indicate he did not receive any telephone calls

from American numbers on December 15. And, although Gamiz asserted he did

not know any of the other participants in the drug exchange besides the driver of

the Rodeo, the driver of the Regal, Mario Aispuro-Gamez, asserted he had known

Gamiz for at least three months.

      In addition, Agent Perry testified that there were no telephone calls from

Ibarra to Gamiz on December 15. Agent Perry found it odd that, if Ibarra was

running this operation, he never called Gamiz to find out why Gamiz never

showed up with Meza, Morales and the heroin.


                                       -6-
      Further, Gamiz refused to explain to the agents why the Rodeo had twice

driven in and out of the convenience store parking lot when it arrived to pick up

Meza and Morales. Agent Perry, who was with Meza in the convenience store,

testified that at the time that the Rodeo had driven in and out of the parking lot,

Meza had received a telephone call indicating there was a suspicious white man in

the parking lot. At this same time, Agent Himes was in the parking lot and saw

Gamiz talking on a cell phone. Yet, Gamiz denied ever making the statement

about the suspicious white man.

      Agent Perry also testified that he believed that “the drugs were destined for

[Gamiz]. I don’t believe he was going to deliver them to anyone else. I believe

he was going to pick them up and he was going to be the individual that was

going to distribute them in Albuquerque.”

      In light of Agent Perry’s testimony, the district court found that Gamiz did

not “provide full and truthful information.”

      I’m not at all convinced he’s done that. The whole story about Mr.
      Ibarra Sanchez, frankly does not pass the smell test, as far as I’m
      concerned. There is no evidence Mr. Ibarra Sanchez was in the country,
      met him at the bar. There is certainly no evidence he was in contact
      with him. And it seems unlikely to me that Mr. Ibarra Sanchez, if
      indeed he was the head of this organization, provided $4,000 to
      someone he met at a bar the night before to pick up the couriers, and
      trusted that much in the way of narcotics to someone he doesn’t know,
      and money to purchase those narcotics. So I’m going to deny the safety
      valve.



                                         -7-
      Gamiz appeals, challenging only the district court’s finding that Gamiz

failed to provide the Government with all the information he had about the drug

transaction underlying Gamiz’s conviction. Having jurisdiction under 18 U.S.C. §

3742(a) and 28 U.S.C. § 1291, we AFFIRM Gamiz’s ten-year sentence.

II.   DISCUSSION

      Gamiz bore the burden of proving, by a preponderance of the evidence, that

he met all five requirements for the safety-valve provision. See United States v.

Virgen-Chavarin, 350 F.3d 1122, 1129 (10th Cir. 2003). The district court’s

determination that Gamiz did not provide the Government with all the evidence

that he had about the events underlying his conviction is a factual finding that this

court will not overturn unless clearly erroneous. See id. at 1130. And that

finding was not clearly erroneous in this case. The record fully supported the

district court’s finding that Gamiz had not truthfully represented his role in the

offense. See United States v. Gonzalez-Montoya, 161 F.3d 643, 652 (10th Cir.

1998). Further, we note that “because the record in this case contains contested

evidence about the truthfulness and completeness of the information provided by

[Gamiz] to the government[,] the district court is better equipped than we are to

make the requisite findings.” United States v. Gama-Bastidas, 142 F.3d 1233,

1242 (10th Cir. 1998); see also Virgen-Chavarin, 350 F.3d at 1129. Therefore,

we AFFIRM Gamiz’s sentence.


                                         -8-
ENTERED FOR THE COURT



David M. Ebel
Circuit Judge




 -9-
