                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 12, 2007
                                                     Elisabeth A. Shumaker
                      UNITED STATES CO URT O F APPEALS Clerk of Court

                                   TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 07-4000
 v.                                           (D.C. No. 2:05-CR-00692-DAK)
                                                         (D. Utah)
 JOSE D. M AR TINEZ-M AR TINEZ,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.


      Defendant Jose D. M artinez-M artinez pled guilty to distribution of at least

50 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). This

conviction subjected the Defendant to a statutory mandatory minimum sentence of

120 months. 18 U.S.C. § 841(b)(1)(A)(viii). In the plea agreement however, the

Government agreed to recommend the application of the U.S.S.G. § 5C1.2 safety


      *
        After examining appellant’s brief and the 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) 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order and judgment is not binding precedent, except under the doctrines of law of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. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
valve provision if the Defendant “truthfully provided . . . all information and

evidence the defendant has concerning the offense.” U.S.S.G. § 5C1.2(a)(5). The

safety valve provision would have allowed the district court to impose a sentence

below the statutory mandatory minimum.

      After the Defendant refused to debrief the G overnment, the district court

accepted the Defendant’s post-M iranda statements to the arresting officers in

satisfaction of § 5C1.2(a)(5). During the sentencing hearing however, the

Defendant addressed the court and disavowed his post-arrest statements. After

the district court verified that the Defendant understood that his denial w ould

make him ineligible for the safety valve exception, the court imposed the

statutory minimum sentence of 120 months.

      On appeal, counsel for the Defendant filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), which presented the Defendant’s challenge to the

district court’s refusal to impose a sentence pursuant to § 5C1.2. In addition,

Counsel moved for leave to withdraw as Defendant’s counsel. Neither the

Defendant nor the Government filed a brief responding to Counsel’s Anders brief.

W e have independently reviewed the record as required by Anders, 386 U.S. at

744. Based on that review, we find that the district court did not err by denying

Defendant the § 5C1.2 safety valve exception and that the record presents no

additional non-frivolous issues.




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         W e review the district court’s decision regarding the Defendant’s eligibility

for § 5C1.2 for clear error. See United States v. Roman-Zarate, 115 F.3d 778,

784 (10th Cir. 1997). Thus, we will reverse the district court only if its decision

was “without factual support in the record,” or if after our review of the record,

“we are left with the definite and firm conviction that a mistake has been made.”

United States v. Beaulieu, 893 F.2d 1177, 1182 (10th Cir. 1990). The Defendant

bears the burden of showing— by a preponderance of the evidence— the

applicability of § 5C1.2. United States v. Verners, 103 F.3d 108, 110 (10th Cir.

1996).

         If the Defendant satisfies five criteria, § 5C1.2 allows district courts to

impose a sentence pursuant to the sentencing guidelines, rather than a longer

statutory mandatory minimum sentence. 1 U.S.S.G. § 5C1.2. In this case, only the

fifth criterion is in dispute. The record indicates that the Defendant refused to



         1
       The criteria require:
      (1) the defendant does not have more than 1 criminal history
      point . . . ;
      (2) the defendant did not use violence or credible threats of violence
      or possess a firearm or other dangerous weapon . . . in connection
      with the offense;
      (3) the offense did not result in death or serious bodily injury . . . ;
      (4) the defendant was not an organizer, leader, manager, or
      supervisor of others in the offense . . . and was not engaged in a
      continuing criminal enterprise . . . ; 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 concern the offense . . . .
U.S.S.G. § 5C1.2

                                            -3-
debrief the Government and disavowed his statements to the arresting officers.

Thus, we find that the factual record supports the district court’s decision to deny

the Defendant the safety valve exception and that therefore, it was not clear error

for the court to refuse to apply § 5C1.2. See Beaulieu, 893 F.2d at 1182. The

Defendant’s sentence is A FFIRM ED and we GRANT Counsel’s motion to

w ithdraw .



                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge




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