                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 March 20, 2008
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-7045
 v.                                             (D.Ct. No. CR-07-9-01-RAW)
                                                        (E.D. Okla.)
 VICTORIANO ROMERO,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Circuit Judge, and BARRETT and BRORBY, Senior 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Victoriano Romero pled guilty to one count of conspiracy to


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B) and § 846. 1 He now appeals his seventy-month sentence, arguing the

district court erred in failing to apply a two-level “safety valve” reduction

pursuant to 18 U.S.C. § 3553(f) and United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”) § 5C1.2. We exercise jurisdiction pursuant to 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Romero’s sentence.



                       I. Factual and Procedural Background

      On September 21, 2006, Mr. Romero was a passenger in a car stopped by

an Oklahoma Highway Patrol trooper for speeding and crossing the shoulder line

on an interstate in Oklahoma. When questioned, Mr. Romero stated the vehicle

belonged to him and produced insurance and registration verification. He also

explained the driver, who did not speak English, was his cousin and they were

driving to Springdale, Arkansas, to visit Mr. Romero’s brother. During a status

check on the vehicle, the El Paso Intelligence Center reported the vehicle entered

California from Mexico four days earlier and crossed the Mexican border into

Arizona several times within the prior three months. Based on this information

and other circumstances surrounding the stop, state troopers requested and


      1
        In pleading guilty, Mr. Romero agreed to waive all appellate rights
except to challenge any upward departure from the United States Sentencing
Guidelines. However, in this case, the government informed Mr. Romero it
would not seek enforcement of the waiver.

                                         -2-
obtained Mr. Romero’s consent to search the vehicle. In the rear interior of the

vehicle they found a fire extinguisher with fresh tool marks around the handle.

Inside, they found several latex wrapped bundles, which a field test indicated

contained heroin. A subsequent laboratory analysis verified the extinguisher

contained 924.99 grams of heroin. Inside the vehicle agents also found a

handwritten note containing a map marking streets in Brooklyn, New York, and

several phone numbers, including a 1-800 phone number later discovered to be

referenced in multiple Drug Enforcement Agency (DEA) investigations.



      During a plea hearing, the district court accepted Mr. Romero’s guilty plea

to the charge of possession of 100 grams or more of heroin with intent to

distribute. Thereafter, DEA agents conducted a safety valve debriefing with Mr.

Romero; during the interview Mr. Romero indicated he did not know he was

transporting drugs but believed the fire extinguisher contained currency. More

specifically, he claimed someone known only to him as “Junior,” whom he met at

a dance in California, asked him to deliver the fire extinguisher to Springdale,

Arkansas, after he learned Mr. Romero planned to travel there to see his brother.

According to Mr. Romero, Junior called him several times before the trip and

agreed to pay him $1,000 for transporting the fire extinguisher to that location.

However, when agents asked Mr. Romero to identify Junior’s telephone number

from Mr. Romero’s phone toll information, he stated he could not because Junior

                                         -3-
used a restricted number. Mr. Romero also stated that when he arrived in

Springdale he was to deliver the fire extinguisher to an unidentified male but

claimed he had no other information about the delivery because Junior was to

provide further instructions by phone. When challenged about his assertion the

delivery was for Springdale, Arkansas, instead of a larger city with a more

established market for heroin, Mr. Romero insisted he was delivering the

extinguisher to Springdale and further claimed he had never seen the handwritten

note found in his vehicle with the map marking streets in Brooklyn, New York,

and several phone numbers. When agents dialed the 1-800 phone number, they

discovered a recorded message instructing the person calling to enter a PIN

number. A further check of the phone number established it appeared in over

twenty DEA investigations in the prior two to three years and that all calls were

incoming and not outgoing from that number. The 1-800 phone number was

believed to be an access number for a prepaid calling card.



      Following the interview, DEA agent Darren Lane, through a DEA agent

located in Fayetteville, Arkansas, contacted a sergeant with the northwest

Arkansas drug task force, who advised that in the past four years, the jurisdiction

which included Springdale had only occasionally received information regarding

heroin sales, but that attempts to purchase heroin had either not materialized or

the drug actually involved was not heroin. Because a kilogram is considered a

                                         -4-
significant quantity of heroin exceeding typical street-level distribution amounts,

Agent Lane concluded the Springdale, Arkansas market could not support the

distribution and sale of such a large amount of heroin and that the likely

destination was New York City, as supported by the handwritten note found in

Mr. Romero’s vehicle showing a map with Brooklyn streets and the 1-800 phone

number associated with several prior drug investigations.



      Shortly thereafter, the government proposed: 1) Mr. Romero withdraw his

guilty plea to the possession of heroin charge; 2) the government move to dismiss

the charge; and 3) Mr. Romero plead guilty to a new conspiracy charge. The

government later explained it made this proposal based on Mr. Romero’s claim he

believed he was transporting money instead of heroin, which was inconsistent

with his testimony at his plea hearing and caused the government concern he

might later contest his guilty plea to possession of heroin. Mr. Romero

subsequently agreed to withdraw his plea, which the district court approved. The

government then charged Mr. Romero with one count of conspiracy to distribute

100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)

and § 846, to which he pled guilty.



      Following Mr. Romero’s guilty plea, a probation officer prepared a

presentence report calculating the base offense level at 30, given the drug offense

                                         -5-
involved at least 700 grams but less than one kilogram of heroin. The probation

officer then recommended a two-level reduction under U.S.S.G. § 2D1.1(b)(9)

(now § 2D1.1(b)(11)) “if” Mr. Romero met the safety valve criteria in § 5C1.2.

She also recommended a three-level reduction for acceptance of responsibility

under § 3E1.1(b), for a total offense level of 25. An offense level of 25, together

with Mr. Romero’s criminal history category of I, resulted in a Guidelines range

of fifty-seven to seventy-one months imprisonment. Mr. Romero stated he had no

objections to the presentence report; however, the government filed an objection,

stating Mr. Romero did not qualify for a safety valve reduction of two levels

because he failed to meet the criteria in U.S.S.G. § 5C1.2(a)(5) by failing to

truthfully provide to the government all information and evidence he had

concerning the offense or offenses that were part of the same course of conduct or

of a common scheme or plan. In support, the government submitted a copy of the

DEA report of the interview with Mr. Romero and a letter from the agent

conducting that interview. Mr. Romero responded to the objection, stating the

government was incorrect in its assertion because when Mr. Romero met with

DEA agents he told them everything he knew, and immediately thereafter the

government allowed him to withdraw his initial plea and plead to a different

charge, thereby signifying “at least some modicum of belief in his assertions.”



      At the sentencing hearing the government renewed its objection to a safety

                                         -6-
valve reduction, while Mr. Romero, through counsel, argued that the probation

officer’s recommendation of such a reduction also indicated Mr. Romero “raised a

modicum of believability.” Mr. Romero’s counsel also renewed Mr. Romero’s

argument about the truthfulness of his statements during his DEA interview,

including the fact that he has family in Springdale, and then explained that drug

organizations typically do not provide the courier with specific information. In

addition, counsel relayed Mr. Romero talked to his sister and she believed the

map was left in his vehicle by one of her friends; counsel also pointed out the

suspect phone number was merely an access number to a prepaid calling card

which, for unknown reasons, a lot of people in the drug trade called.



      In making its determination on the safety valve issue, the district court

stated it had considered the DEA report and Agent Lane’s letter regarding the

interview with Mr. Romero, determined the government had made a reasonable

inference from the available evidence that Mr. Romero had not been truthful, and

found “the most telling evidence” included the Brooklyn map and phone numbers

in Mr. Romero’s vehicle for which he provided no plausible explanation. The

district court then found Mr. Romero did not meet the criteria for a two-level

safety valve reduction under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. As a

result, it calculated the total offense level at 27, resulting in an advisory

sentencing range of seventy to eighty-seven months imprisonment, and sentenced

                                           -7-
Mr. Romero to seventy months imprisonment. The district court further

recounted each of the sentencing factors in 18 U.S.C. § 3553(a), which it stated it

had considered in formulating Mr. Romero’s sentence.



                                    II. Discussion

      Mr. Romero now appeals his sentence, contending the district court erred in

failing to apply the safety valve reduction under 18 U.S.C. § 3553(f) and U.S.S.G.

§ 5C1.2 based on its erroneous determination he failed to truthfully disclose all

pertinent information. In support of his contentions, Mr. Romero claims the

district court’s conclusion he did not fully disclose all known information was not

supported by the record and, in support, renews the same arguments raised before

the district court. In sum, Mr. Romero claims none of the evidence provided by

the government proves he knew more information than was offered at his DEA

interview.



      When reviewing a district court’s application of the Guidelines in

calculating a sentence, including the application of § 5C1.2, we review legal

questions de novo and any factual findings for clear error, giving due deference to

the district court’s application of the Guidelines to the facts. See United States v.

Patron-Montano, 223 F.3d 1184, 1188 (10th Cir. 2000). “A district court’s

factual finding is clearly erroneous only if it is without factual support in the

                                          -8-
record or if this court, after reviewing all the evidence, is left with a definite and

firm conviction that a mistake has been made.” Id. (quotation marks, citation, and

alterations omitted). Since United States v. Booker, 543 U.S. 220 (2005), we

have clarified that we review a district court’s sentence for abuse of discretion,

asking whether it is reasonable under the 18 U.S.C. § 3553(a) sentencing factors.

See United States v. Garcia-Lara, 499 F.3d 1133, 1135 (10th Cir. 2007), petition

for cert. filed (U.S. Mar. 7, 2008) (No. 07-9799). We employ the abuse of

discretion standard by reviewing a district court’s factual findings for clear error

and deferring to the district court’s “exercise of discretion within the bounds of

reasonableness.” Id. at 1136. We require reasonableness in two respects – “the

length of the sentence, as well as the method by which the sentence was

calculated.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (per

curiam).



      Applying this standard of review, we turn directly to the legal principles

applicable to Mr. Romero’s safety valve claim. By statute, pursuant to 18 U.S.C.

§ 3553(f), the district court must “impose a sentence pursuant to guidelines ...

without regard to any statutory minimum sentence,” if it finds at sentencing the

defendant meets certain safety valve criteria. 18 U.S.C. § 3553(f); see also

U.S.S.G. § 5C1.2 (relying on the same criteria for the purpose of granting a

below-mandatory minimum sentence). In this case, the only contested criterion is

                                           -9-
whether Mr. Romero truthfully provided to the government all information and

evidence he possessed concerning the conspiracy offense. 2 See 18 U.S.C.

§ 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5). This criterion requires truthful

disclosure, regardless of whether the information is deemed relevant or useful to

the government’s investigation. United States v. Acosta-Olivas, 71 F.3d 375, 377,

379 (10th Cir. 1995). A district court’s determination on whether to apply a

safety valve reduction “is fact specific and dependent on credibility

determinations that cannot be replicated with the same accuracy on appeal.”

United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006). The burden is

on Mr. Romero to show by a preponderance of the evidence he met this criterion.

See id. at 1179.



      In this case, in support of its opposition to a safety valve reduction, the

government submitted the DEA report concerning Mr. Romero’s interview, as

well as a DEA agent’s letter regarding that interview and his follow-up inquiries

and conclusions regarding the likelihood the intended delivery was for the New

York City area. In turn, at no time did Mr. Romero meet his burden of proof by

providing any exculpatory evidence other than his own self-serving denials at his

interview about possessing additional information and his counsel’s assertions


      2
          Because neither party contests or raises as an issue the other § 3553(f)
criteria, we will not address them on appeal.

                                         -10-
made on his behalf at the sentencing hearing, which included the assertion Mr.

Romero talked to his sister, who told him the incriminating handwritten note and

Brooklyn map belonged to her friend. Clearly, such an assertion by counsel is not

considered evidence or otherwise sufficient to rebut the evidence in the record.

Moreover, the fact the 1-800 phone number was associated with a calling card

does not sufficiently counter the fact it was associated with multiple DEA

investigations and found in Mr. Romero’s car, which also contained a substantial

amount of heroin and was identified as having entered California from Mexico

four days earlier and crossed the Mexican border into Arizona several times

within the prior three months. Thus, regardless of whether Mr. Romero has

family in Springdale, Arkansas, or he knew whether the fire extinguisher

contained currency or drugs, incriminating evidence in the record supports the

district court’s conclusion Mr. Romero was not forthcoming about all the

information he possessed concerning his offense, including his possession and

knowledge about the map found in his vehicle.



      We also find unconvincing Mr. Romero’s argument the government and

probation officer initially believed the truthfulness of his assertions, as evidenced

by the government’s suggestion Mr. Romero withdraw his initial plea due to his

conflicting interview statements and the probation officer’s recommendation he

receive a safety valve reduction if he provided truthful information. Again,

                                         -11-
neither is sufficient evidence or information to rebut the evidence in the record

supporting the district court’s determination. We therefore reject Mr. Romero’s

claim the record did not support the district court’s determination he was

ineligible for a safety valve reduction and further conclude the district court’s

failure to apply such a reduction was not an abuse of discretion, noting we are not

left with a definite and firm conviction that a mistake has been made.



      Turning to the general issue of the reasonableness of Mr. Romero’s

sentence in conjunction with the § 3553(a) factors, we note the district court

considered those factors in formulating Mr. Romero’s sentence and imposed a

sentence within the advisory Guidelines range. We have determined a

presumption of reasonableness attaches to a sentence, like here, which is within

the correctly-calculated Guidelines range. See Kristl, 437 F.3d at 1053-55. “This

is a deferential standard that either the defendant or the government may rebut by

demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in § 3553(a).” Id. at 1054. In this case, Mr. Romero has not

met such a burden or otherwise demonstrated his sentence is unreasonable in

conjunction with the 18 U.S.C. § 3553(a) sentencing factors.




                                         -12-
                        III. Conclusion

For the foregoing reasons, we AFFIRM Mr. Romero’s sentence.



                             Entered by the Court:

                             WADE BRORBY
                             United States Circuit Judge




                              -13-
