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This order and judgment is not binding precedent, except under the doctrines of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
-2-
United States v. Montoya
Combined Opinion