F I L E D
United States Court of Appeals
Tenth Circuit
March 14, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 06-4039
(D.C. No. 2:04-CR-525-DB)
FORTINO CASTILLO-SALAZAR, (D. Utah)
a/k/a Julio Cesarmoreno Sanchez,
a/k/a Julio M oreno, a/k/a Fortino
Catillo-Salazar,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **
Defendant-Appellant Fortino Castillo-Salazar appeals his sentence, arguing
that the district court erred in failing to sentence him using the “safety valve” in
U.S.S.G. § 5C1.2. On November 17, 2005, M r. Castillo pled guilty to one count
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
of possession with intent to distribute 50 grams or more of methamphetamine in
violation of 21 U.S.C. § 841(b)(1)(A ). However, he refused to “truthfully
provide[] to the Government all information and evidence [he] has concerning the
offense” so that he could qualify for a safety valve reduction in his sentencing
range. See U.S.S.G. § 5C1.2(5). The district court sentenced M r. Castillo to 120
months of imprisonment followed by 24 months of supervised release.
M r. Castillo timely moved to reopen his sentencing hearing so that he could
provide information and qualify for the safety valve. Thereafter, he again chose
not to provide information. Defense counsel informed the district court of his
client’s decision, and the court entered a final judgment on January 26, 2006.
Pursuant to Anders v. California, 386 U.S. 738 (1967), M r. Castillo’s
counsel informs us that M r. Castillo did not qualify for the safety valve because
of his refusal to “truthfully provide[] to the Government all information and
evidence [he] has concerning the offense . . . .” U.S.S.G. § 5C1.2(5). This, as
counsel notes, is a prerequisite that a defendant must satisfy before he can be
eligible for the safety valve. See id.
M r. Castillo did not respond to his attorney’s Anders brief; the government
likewise determined that no response was necessary. Having reviewed the record,
we detect no non-frivolous grounds for appeal. A ccordingly, we will allow M r.
Castillo’s counsel to withdraw and DISM ISS this appeal. See United States v.
Calderon, 428 F.3d 928, 929-30 (10th Cir. 2005).
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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