F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 15 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-2283
ENRIQUE SALAS, (D.C. No. CR-99-14-BB)
(D.N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and BRORBY, Circuit Judges.
Defendant Enrique Salas appeals the district court’s denial of his motion to
reduce his sentence under the safety valve provision, 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2. The district court found that Defendant did not satisfy the fifth
element of the safety valve provision, which is the truthful admission of all
information the defendant has about the offense. We exercise jurisdiction
pursuant to 18 U.S.C. § 3742, and affirm.
*
This order and judgment is not binding precedent, except under the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.
I.
Two confidential informants and a narcotics task force agent reported
observing a man calling himself Miguel Salas selling pre-packaged cocaine out of
a mobile home in Espanola, New Mexico. (R. vol. I, doc. 1.) Based on this
information, State District Judge Art Encinias issued a search warrant for the
mobile home. Officers executing the warrant arrested Defendant, along with
Cristobal Estrada and Francisco Arreola. In the mobile home, the officers found
about 300 pounds of marijuana, as well as 0.5 kilograms of cocaine, scales,
cutting agents, packaging materials, firearms, and notebooks containing names
and monetary amounts. After receiving Miranda warnings, Defendant told
officers that he was holding the marijuana and cocaine for someone else and was
to be paid for holding the drugs. Id.
A grand jury indicted Defendant on three counts: (1) conspiracy to possess
marijuana and cocaine with intent to distribute in violation of 21 U.S.C. § 846,
(2) possession of more than 100 kilograms of marijuana with intent to distribute
in violation of 21 U.S.C. § 841(b)(1)(B), and (3) possession of cocaine with intent
to distribute in violation of 21 U.S.C. § 841(b)(1)(C). Defendant pled guilty to
the second count. The Government dismissed the remaining two counts pursuant
to the plea agreement. The district court sentenced Defendant to 60 months
imprisonment, based on the five year statutory minimum sentence in 21 U.S.C.
-2-
§ 841(b)(1)(B). Defendant’s guideline sentencing range was 46 to 57 months,
based on his criminal history category of I and the offense level of 23. The drug
quantity yielded a base offense level of 26, minus 3 levels for acceptance or
responsibility. The PSR, however, recommended that Defendant not receive the
safety valve reduction of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2.
Defendant objected to the PSR’s recommendation that he was not eligible
for the safety valve provision. He argued that he had given the Government
complete information about his involvement in the offense. At the sentencing
hearing, Defendant admitted that he knew the drugs were in his trailer. (R. vol.
II, at 9-10.) He also testified, however, that he “was just taking care of the drugs
for Francisco Arreola. When Francisco’s friends would come, I would just give
them the drugs. But I never sold them the drugs.” ( Id. at 6.) Defendant stated
that Arreola’s cousins delivered the cocaine to the trailer. ( Id. at 7.) He also
testified that he would then distribute the drugs a gram or two at a time to people
who came to the trailer. ( Id. at 9.) Defendant admitted to helping wrap and bag
the marijuana, but denied selling any marijuana. ( Id. at 10-11.)
The government argued that Defendant was not entitled to the safety valve
reduction. It took the position that, despite Defendant’s denials, he was in fact
selling drugs from his trailer. In the affidavit in support of the search warrant,
two confidential informants reported purchasing pre-packaged cocaine at
-3-
Defendant’s trailer from a man calling himself Miguel Salas. In addition, the
presentence report noted five instances of other criminal conduct in New Mexico
and Arizona. In each instance, Defendant failed to appear. Two were drug-
related: a New Mexico charge for distribution of marijuana and Arizona charges
for possession of marijuana for sale, possession of drug paraphernalia, and
possession of marijuana for transport and sale. Finally, at the time of his arrest,
Defendant told a DEA agent that he was holding the drugs for someone else, who
would pay him for the service; Defendant would not identify who brought the
drugs.
The district court found that Defendant’s testimony was not truthful. “I
think there is too much in Mr. Salas’ past, with his lying to the DEA and his other
charges with regard to drug distribution, and his failure to appear in other courts
on those charges that prohibits me from giving him the benefit of the doubt.” (R.
vol. II, at 21.) Accordingly, the district court denied the motion for a safety valve
reduction.
II.
We review the district court’s specific conclusion that a defendant is not
eligible for relief under 18 U.S.C. § 3553(f) for clear error. United States v.
Gonzalez-Montoya , 161 F.3d 643, 651 (10th Cir. 1998), cert. denied , 526 U.S.
1033 (1999). Section 3553(f) provides that the district court shall impose a
-4-
sentence based on the guidelines regardless of any statutory minimums if the
defendant proves five factors. The fifth factor 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 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); see also U.S.S.G. § 5C1.2(5) (tracking the language of
§ 3553(f)(5)). A defendant must disclose “everything [he] knows about his own
actions and those of his co-conspirators” to qualify for a sentence reduction under
this provision. United States v. Roman-Zarate , 115 F.3d 778, 784 (10th Cir.
1997) (internal quotation marks and citations omitted); see also United States v.
Myers , 106 F.3d 936, 941 (10th Cir. 1997) (noting that § 3553(f)(5) “is very
broad, requiring disclosure of everything the defendant knows about his own
actions and those who participated in the crime with him”). The defendant bears
the burden of showing, by a preponderance of the evidence, that the safety valve
provision applies. United States v. Gama-Bastidas , 142 F.3d 1233, 1242 (10th
Cir. 1998).
In this case, Defendant has not carried his burden of showing that the safety
valve provision applies. The district court did not clearly err in relying on the
indications of Defendant’s untruthfulness: (1) the statements of two confidential
-5-
informants who reported seeing Defendant sell prepackaged cocaine from his
trailer, (2) Defendant’s failure to appear in two drug trafficking cases, and (3)
Defendant’s incomplete statements to a DEA agent at the time of his arrest.
Defendant did not present the district court with credible evidence that he told the
Government everything he could about his involvement in the offense. “[A] trial
judge . . . is free to find a defendant’s contentions untruthful. Given such a
finding, [the defendant] did not meet his burden of establishing all five
requirements for a downward adjustment under [the] safety valve provision.”
Gonzalez-Montoya , at 161 F.3d at 652.
AFFIRM ED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
-6-