* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 14 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JESUS PONCE-ESTRADA,

Defendant-Appellant. No. 00-1120 (D.C. No. 99-CR-317-M) (D. Colo.)

ORDER AND JUDGMENT *

Before McKAY , PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Jesus Ponce-Estrada pled guilty to conspiracy to di stribute or possess with intent to distribute cocaine. At sentencing, Mr. P once-Estrada sought relief from2--

the minimum mandatory five-year sentence under the “safety valve” exception to minimum mandatory sentencing. See United States v. Acosta-Olivas , 71 F.3d 375, 377-78 (10th Cir. 1995) (discussing 18 U.S.C. § 355 3(f) and USSG § 5C1.2). The district court denied that request and sentence d Mr. Ponce-Estrada to the minimum mandatory sentence, a sixty-month term of i mprisonment. Mr. Ponce-Estrada appeals his sentence. Finding no error, we affirm. Mr. Ponce-Estrada’s presentence report did not indi cate that he was qualified for relief from the minimum mandatory sentence under § 3553(f)(5), because he had not fully cooperated with the government by providing information about the source of the drugs or the ro le of his co-conspirators in the transaction for which he pled guilty. See Acosta-Olivas , 71 F.3d at 378-79. Mr. Ponce-Estrada filed a written objection to the presentence report, arguing that he had participated in the debriefing session. See Appellant’s App. at 39. At the sentencing hearing, Mr. Ponce-Estrada’s counsel elaborated on the objection, arguing that at the debriefing session, the agents were hostile, skeptical and confrontational, and that they focused the conversation on a previous marijuana deal rather than on the cocaine transaction for whi ch Mr. Ponce-Estrada was being sentenced. See Appellant’s App. at 64. We review for clear error the district court’s dete rmination concerning eligibility under § 3553(f), see Acosta-Olivas , 71 F.3d at 377; and we review de3--

novo the court’s interpretation of the sentencing g uidelines. See Acosta-Olivas , 71 F.3d at 378 n.3. The defendant bears the burdenof proving by a preponderance of the evidence that he is entitled t o “safety valve” relief. See United States v. Gonzalez-Montoya , 161 F.3d 643, 652 (10th Cir. 1998), cert. denied, 526 U.S. 1033 (1999). The government does not be ar a burden of seeking out information from the defendant. See United States v. Ramirez , 94 F.3d 1095, 1101 (7th Cir. 1996). However, it is responsible f or providing a means by which it can receive information, because “‘debriefing bythe government plays an important role in permitting a defendant to comply with the disclosure requirement of the safety valve provision.’” United States v. Brack, 188 F.3d 748, 763 (7th Cir. 1999) (internal citation omitted ). At the sentencing hearing, the government made a pr offer that Mr. Ponce-Estrada had not complied with the statuto ry provision because he failed to reveal the source of the drugs and the ro les of individuals involved in the offense. See Appellant’s App. at 63. The government acknowledg ed that its debriefing session with Mr. Ponce-Estrada had been fruitless, but stated that it had offered Mr. Ponce-Estrada a second debriefing o pportunity. See id. at 65. Significantly, Mr. Ponce-Estrada refused to meet wi th the government for a second session. See id. In addition, although Mr. Ponce-Estrada’s counsel argued at the sentencing hearing that Mr. Ponce-Estrada ha d told the government what he-4-

knew, counsel made no proffer at the sentencing hearing that Mr. Ponce-Estrada had satisfied the requirements of the “safety valve ” provision by providing the government with relevant information about the tran saction. Under these circumstances, we find no error in Mr. Ponce-Estra da’s sentencing. Accordingly, Jesus Ponce-Estrada’s sentence is AFFIRMED

.

Entered for the Court

Monroe G. McKay Circuit Judge