* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### FEB 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. EDGAR ARTEMIO SANCHEZ,

Defendant-Appellant. No. 97-3145 (Dist. of Kansas) (D.C. No. 96-3055-SAC)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.1 Because Sanchez filed his § 2255 petition prior to the enactment of the

Antiterrorism and Effective Death Penalty Act (“AED PA”), Pub. L. No. 104-132, 110 Stat. 1214, the AEDPA and its certificate of ap pealability requirements do not apply to this appeal. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Because petitioners like Sanchez were not obligated to obtain a certificate of probable cause to appeal the denial of a § 2255 motion under preAEDPA law, this court proceeds to the merits of San chez’s appeal. See United States v. Riddick, 104 F.3d 1239, 1240 (10th Cir. 1997) (noting thatunder the pre-AEDPA versions of 28 U.S.C. §§ 2253, 2255, “a § 2255 movant was not required to obtain a certificate of appealability t o appeal an adverse decision by the district court”), overruled in part on other grounds , Kunzman , 125 F.3d at 1364 n.2. -2- Edgar A. Sanchez appeals the district court’s denia l of his 28 U.S.C. § 2255 petition. This court exercises jurisdiction pursuant to 28 U.S.C. §§ 2253 and 2255 and affirms

. 1 Sanchez was arrested by the Kansas Highway patrol o n May 5, 1994; approximately 106 kilograms of cocaine hydrochlorid e were found in his possession. A federal grand jury returned a one-co unt indictment against Sanchez, charging him with possession with intent t o distribute approximately 100 kilograms of cocaine. On October 21, 1994, Sanchez pled guilty to the ind ictment pursuant to a plea agreement. In return for Sanchez’s plea, the United States agreed that it would not oppose a three-level reduction in Sanchez ’s base offense level for acceptance of responsibility, take no position on a n obstruction of justice enhancement, and not oppose a three-level reductionin Sanchez’s base offense-3-

level for his minor role in the conspiracy. The Un ited States further agreed to consider filing a motion for a downward departure b ased on any substantial assistance provided by Sanchez. Sanchez met with representatives of the Drug Enforc ement Administration and the Kansas Bureau of Investigation on December 13, 1994. The meeting was also attended by a representative of the Public Def ender’s Office. During the meeting Sanchez refused to provide specific information concerning the individuals who recruited him and provided the coca ine. He also refused to provide specific information concerning how, where, and when the cocaine was to be delivered and with whom contact would be made up on delivery. The interview concluded without Sanchez providing any useful info rmation. Sanchez was sentenced on March 16, 1995. His base offense level of 36 was reduced by three points for his minor role in the offense and three points for acceptance of responsibility. The sentencing range for this base offense level of 30 was 97 to 121 months. The district court senten ced Sanchez to the mandatory minimum of 120 months as required by 21 U.S.C. § 84 1(b)(1)(A) On January 29, 1996, Sanchez filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In the motion, Sanchez argued that his counsel was constitutionally ineffective because he failed to argue that Sanchez was entitled to a sentence reduction pursuant to th e “safety valve” provisions of-4-

18 U.S.C. § 3553(f). He further argued that he was entitled to a two level reduction in his base offense level pursuant to U.S .S.G. § 2D1.1(b)(4). Based on Sanchez’s motion and an affidavit filed by Sanchez in support of his claims, the district court appointed James Chappas to representSanchez and held an evidentiary hearing. Shortly after the hearing had concluded, the distri ct court issued a Memorandum and Order denying Sanchez’s § 2255 motio n. The district court concluded that Sanchez’s trial counsel was not inef fective because Sanchez was not entitled to a sentence reduction under the safe ty valve provisions of § 3553(f). The district court found that because Sanchez faile d to inform the United States all that he knew about the offense of conviction an d the relevant conduct, including the identities and participation of other s, he failed to qualify for “safety valve” relief. See 18 U.S.C. § 3553(f)(5); United States v. Acosta-Olivas , 71 F.3d 375, 377-78 (10th Cir. 1995). Accordingly, Sanchez ’s counsel was not ineffective for failing to request relief under § 3 553(f). As to Sanchez’s claim that he was entitled to a two -level reduction in his base offense level pursuant to U.S.S.G. § 2D1.1(b)( 4), the district court noted that Sanchez was sentenced well before the effective dat e of that provision and the provision was not listed by the United States Sente ncing Commission as one that applied retroactively. See U.S.S.G. § 1B1.10(a), (c). Accordingly, the distr ict-5-

court concluded that Sanchez could not benefit fromU.S.S.G. § 2D1.1(b)(4) unless Sanchez’s original sentence was set aside an d Sanchez was resentenced. Because the district court had already concluded th at Sanchez’s counsel was not ineffective and Sanchez’s original sentence would s tand, Sanchez could not benefit from § 2D1.1(b)(4). When Sanchez insisted on appealing the district cou rt’s denial of his § 2255 motion, Sanchez’s appointed counsel filed a brief p ursuant to Anders v. California , 386 U.S. 738 (1967). Counsel indicated that he w as “obliged to characterize this appeal as frivolous. Under the f acts, circumstances and applicable law, all as aforementioned and found by the district court, counsel for the appellant is with no conceivable, good faith, a rgument to indicate that the district court incorrectly applied the law to the f acts in this case.” Appellant’s Brief at 5. This court has reviewed de novo the Anders brief filed by Sanchez’s counsel, the United States’ response thereto, the d istrict court’s Memorandum and Order, and the entire record on appeal. Based on t hat review, we affirm for substantially the reasons set forth in the districtcourt’s thorough Memorandum and Order.-6-

The judgment of the United States District Court fo r the District of Kansas is hereby AFFIRMED . Counsel’s motion to withdraw pursuant to Anders is GRANTED

.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge