* This order and judgment is not binding precedent, except under the doctrines of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. 

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

### MAY 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-1321

v. (D. Colorado) OTEI ESCAMILLA-CAZARES,

Defendant-Appellant. (D.C. No. 96-CR-466-B)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , 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 ase is therefore ordered submitted without oral argument.-2-

Appellant Otei Escamilla-Cazares pled guilty to pos session with intent to distribute cocaine, in violation of 21 U.S.C. §§ 84 1(a)(1) and (b)(1)(B)(vii). Because the quantity of cocaine involved was one ki logram, Mr. EscamillaCazares was subject to a minimum mandatory sentence of 60 months. He sought application of the “safety valve” provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 to permit a sentence below the statutory m inimum. The district court ultimately declined to apply § 3553(f) and sentence d Mr. Escamilla-Cazares to 60 months. Mr. Escamilla-Cazares appeals his sentence

.

BACKGROUND Mr. Escamilla-Cazares was arrested on November 14, 1996, following a tip by a confidential informant that someone matching M r. Escamilla-Cazares’ description would be delivering a kilogram of cocai ne to someone else at a particular parking lot in Denver. He was given a M iranda warning, and indicated he wished to cooperate with authorities. He stated that the cocaine was provided by a person named Pini, whose real name was Ceferin o Castillo-Garcia and who was known to the government because he was a defend ant in another drug case in federal district court. Mr. Escamilla-Cazares sign ed a consent to search his apartment. The search revealed numerous documents, none in Mr. EscamillaCazares’ name, and a triple beam scale. Mr. Escami lla-Cazares was taken to jail.1 The charges were dismissed because the evidence leading to Mr. Castillo-Garcia’s

arrest was obtained, unbeknownst to the government, after Mr. Escamilla-Cazares had requested appointment of counsel. -3- The next day, an officer from the Denver Police Dep artment contacted Mr. Escamilla-Cazares at the jail and asked him if he w ished to continue to cooperate. He said that he did, and, after receiving a Mirandawarning, he signed a written waiver. Mr. Escamilla-Cazares identified the suppl ier of the cocaine, Mr. Castillo-Garcia, by photograph and agreed to make t elephone calls to him to set up a meeting to pay for the cocaine and to obtain a nother kilogram of cocaine. Mr. Escamilla-Cazares called Mr. Castillo-Garcia se veral times and they made arrangements for Mr. Escamilla-Cazares to meet witha runner and pay for the kilogram of cocaine. When Mr. Escamilla-Cazares an d the police officer arrived at the designated place for the drug transaction, Mr. Escamilla-Cazares got scared and declined to cooperate further. He conti nued, however, to receive pages from Mr. Castillo-Garcia. Mr. Castillo-Garci a was subsequently arrested and indicted, along with Mr. Escamilla-Cazares, forconspiracy to possess with intent to distribute cocaine. The charges against Mr. Castillo-Garcia were eventually dismissed. 1 After Mr. Escamilla-Cazares pled guilty, sentencing proceedings commenced. The government objected to the probatio n department’s recommendation that the safety valve apply. The di strict court twice continued-4-

sentencing to permit Mr. Escamilla-Cazares to fulfi ll all the requirements for application of the safety valve. A debriefing was held, following which the court conducted a sentencing hearing where the court conc luded that Mr. EscamillaCazares failed to show he had met all the requireme nts for application of § 3553(f)’s safety valve. The court accordingly se ntenced Mr. Escamilla-Cazares to the statutory mandatory minimum of 60 months.

DISCUSSION 18 U.S.C. § 3553(f) was “enacted as a ‘safety valve ’ to permit courts to sentence less culpable defendants to sentences unde r the guidelines, instead of imposing mandatory minimum sentences.” United Stat es v. Acosta-Olivas , 71 F.3d 375, 378 (10th Cir. 1995). To be eligible forapplication of the safety valve, a defendant must satisfy five requirements. The on ly disputed requirement in this case is the fifth one, which obligates a defendant: not later than the time of the sentencing hearing, . . . [to] truthfully provide[] to the Government all information and evi dence the defendant has concerning the offense or offenses th at were part of the same course of conduct or of a common scheme orplan, but the fact that the defendant has no relevant or useful o ther 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). The defendant bears the burden of proving he meets the requirements of § 35 53(f). United States v.-5-

Myers , 106 F.3d 936, 941 (10th Cir.), cert. denied , 117 S. Ct. 2446 (1997). While we review de novo the district court’s interpretati on of the statute and the sentencing guidelines, we review for clear error th e court’s “application of the correct legal standard to a particular defendant.” Acosta-Olivas , 71 F.3d at 378
n.3. We have held that “[s]ection 5 is very broad, requi ring disclosure of everything the defendant knows about his own action s and those who participated in the crime with him.” Meyers , 106 F.3d at 941; see also Acosta-Olivas , 71 F.3d at 378-79. After carefully reviewing the entire re cord in this case, the district court concluded that Mr. Escamilla-Cazares “has pro vided a facially implausible account of the scope of his involvement in the offe nse and the plan or scheme surrounding this case, so that his involvement is o ne of not limited culpability, but integral culpability with cocaine—or with kilo level cocaine distributors.” R. Vol. 8, Sentencing Tr. at 31-32. The court accordi ngly found that Mr. EscamillaCazares “has not truthfully told all he knows aboutthis offense and the scheme or plan to distribute kilo quantity cocaine in the Dis trict of Colorado.” Id. at 32. After also carefully reviewing the record in this c ase, we find no clear error in that conclusion.-6- CONCLUSION For the foregoing reasons, the sentence of Mr. Escamilla-Cazares is
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge