* This order and judgment is not binding precedent, e xcept under the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

### OCT 3 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSE VELASQUEZ-MEZA, alsoknown as Jose Enrique GonzalezMeza, also known as Jose Montelongo-Trinidad, Defendant-Appellant. No. 02-4176 (District of Utah) (D.C. No. 96-CR-149-TC)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , 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. Fed. R. App. P. 34(f); 10th Cir. R. 34.1 (G). The case is, therefore, ordered submitted without oral argument.-2-

I. INTRODUCTION Appellant Jose Velasquez-Meza pleaded guilty pursua nt to a plea agreement to one count of possession of methamphetamine with intent to distribute. The district court sentenced Velasquez-Meza to the mini mum mandatory term of ten years after concluding that he did not qualify for a reduced sentenced under 18 U.S.C. § 3553(f), the so-called “safety valve provi sion.” Velasquez-Meza appeals his sentence by challenging the district court’s de termination that he was not entitled to the benefit of the safety valve. He al so contends that an obstruction of justice adjustment to his offense level was inappro priately applied and he was improperly denied a minor-participant reduction in his offense level. Exercising jurisdiction pursuant to 28 U.S.C. § 129 1, this courtaffirms , concluding that Velasquez-Meza was not eligible forthe safety valve provision because he was under a criminal justice sentence wh en he committed the offense of conviction. As a result, this court need not co nsider Velasquez-Meza’s assertions regarding the calculation of his offense level. Furthermore, this court lacks jurisdiction to review the district court’s r efusal to depart based on an overrepresentation of Velasquez-Meza’s criminal his tory category. II. BACKGROUND On July 23, 1996, Velasquez-Meza was indicted on on e count of possession of 100 grams or more of methamphetamine with intentto distribute in violation of-3-

21 U.S.C. § 841. He was granted pre-trial release but failed to appear at a change of plea hearing. The district court issued a bench warrant on September 8, 1997, which was executed four years later on September 26 , 2001 when VelasquezMeza attempted to unlawfully reenter the United States. Subsequently, Velasquez-Meza pleaded guilty to the possession-with-intent-to-distributemethamphetamine count pursuant to a plea agreement. In exchange, the government agreed to recommend departure below the minimum mandatory sentence under the safety valve provisions set fort h in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. In its presentence report, the United States Probat ion Office placed Velasquez-Meza into a criminal history category of II based upon a criminal history score of three. He was given one criminal history point for a domestic battery charge to which he pleaded guilty pursuant to a plea in abeyance agreement in Utah state court. After completing do mestic violence counseling on August 19, 1997, Velasquez-Meza was given good-behavior probation. In accordance with U.S.S.G. § 4A1.1(d), two criminal h istory points were added for commission of the instant offense while on probatio n for the state domestic battery charge. Velasquez-Meza objected to the presentence report, arguing that he was not under a criminal justice sentence at the time he co mmitted the present offense.-4-

He also filed a motion for downward departure, clai ming that his criminal history category was overrepresented. In addition to his o bjections relating to his criminal history category, Velasquez-Meza objected to the imposition of an obstruction of justice enhancement to his offense l evel. He further asserted that he should have been considered for a minor particip ant adjustment, thereby further reducing his offense level by two points. At sentencing, the district court found that the st ate court plea in abeyance constituted a criminal justice sentence and determi ned that Velasquez-Meza did not qualify for the safety valve. In addition, the court ruled on the downward departure as follows:

THE COURT: And maybe I’m not understanding correct ly, but once we get into the–once the safety valve does not permit me to do anything–and I know you disagree, but just assum ing that it does–ten years is–I have no choice but to ten years , I’m afraid, unless I’m misreading that. MR. JOHNSON [Velasquez-Meza’s counsel]: And I th ink that’s why my argument is that he basically is treated as zero to one points if he gets put down into the category one cr iminal history. THE COURT: Understood. Well, I believe that given my conclusion that he does have the criminal history p oints, the two criminal history points set forth in 4A1.1(d), then he does not qualify for the safety valve, and the ten year minimum mand atory trumps any guideline considerations. Finally, the district court declined to consider Ve lasquez-Meza’s objections relating to adjustments to his base offense level, concluding they were moot.-5-

Consequently, Velasquez-Meza was sentenced to the m andatory minimum term of 120 months.
III. DISCUSSION A. Safety Valve Provision Velasquez-Meza argues that the district court erred by failing to grant him the benefit of the safety valve to the minimum mand atory sentence. This court reviews a district court’s determination of whethera defendant qualifies for the safety valve under 18 U.S.C. § 3553(f) for clear er ror. United States v. GonzalezMontoya , 161 F.3d 643, 651 (10th Cir. 1998). The districtcourt’s interpretation of the scope and meaning of section 3553(f) is revi ewed de novo

. Id. Under 21 U.S.C. § 841(b)(viii), possession of 50 gr ams or more of methamphetamine with intent to distribute carries amandatory term of imprisonment for ten years. However, a defendant m ay qualify for a departure below the minimum mandatory under the following saf ety valve provision in the Sentencing Guidelines: [I]n the case of an offense under 21 U.S.C. § 841, . . . the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, i f the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below: (1) the defendant does not have more than 1 crimin al history point, as determined under the sentencing guidelines;

. . .1 Because this court concludes infra that Velasquez-Meza did not meet the

first requirement, it is not necessary to address w hether the other four requirements for safety valve eligibility were sati sfied. -6- U.S.S.G. § 5C1.2. 1 Velasquez-Meza contends that he should have only be en assessed one criminal history point which would have then qualif ied him for the safety valve. Specifically, he argues that the district court err ed in adding two points to his criminal history score because his plea in abeyance in Utah state court did not constitute a “criminal justice sentence.” Under U. S.S.G. § 4A1.1(d), two points are added to a defendant’s criminal history score “ if the defendant committed the instant offense while under any criminal justice se ntence.” The Sentencing Guidelines Commentary further defines “criminal jus tice sentence” as any sentence under U.S.S.G. § 4A1.2 “having a custodial or supervisory component, although active supervision is not required for thi s item to apply.” U.S.S.G. § 4A1.1 cmt. 4. Section 4A1.2(f) lists “[a] diversio nary disposition resulting from a finding or admission of guilt . . . even if a convi ction is not formally entered” as a sentence which can be used to calculate a defendant ’s criminal history. This court has recently decided that a plea in abey ance in Utah state court constitutes a “criminal justice sentence” because i t contains a supervisory component. United States v. Gorman , 312 F.3d 1159, 1167 (10th Cir. 2002). In
Gorman , this court recognized that a plea in abeyance in Utah permitted the state-7-

court to refrain from sentencing and impose specifi c conditions. Id. at 1166. Because the conditions imposed under the plea in ab eyance resemble conditions of probation, a plea in abeyance in Utah is suffici ently supervisory. See id. at 1167. In this case, Velasquez-Meza’s plea in abeya nce included the condition of completing domestic violence counseling. The requi rement of counseling sufficiently resembled a probationary condition bec ause it was conditional to the successful completion of the plea in abeyance agree ment. Therefore, in accordance with Tenth Circuit precedent, Velasquez- Meza’s plea in abeyance was a criminal justice sentence. Hence, the district c ourt did not err in adding two points to his criminal history score. Moreover, th e district court did not err in determining that Velasquez-Meza did not qualify forthe safety valve provision. B. Downward Departure Velasquez-Meza contends that the district court err ed in refusing to grant a downward departure under U.S.S.G. § 4A1.3 from a cr iminal history category II to criminal history category of I because his crimi nal history was overrepresented. A district court’s refusal to depart downward from the Sentencing Guidelines is generally not appealable. United States v. Miranda-Ramirez , 309 F.3d 1255, 1258 (10th Cir. 2002). This court, howe ver, can exercise jurisdiction if the district court “states that it does not have any authority to depart from the sentencing guideline range for the entire class of circumstances proffered by the2 Even if the district court had granted the departur e, it would have had no

impact on Velasquez-Meza’s eligibility for the safe ty valve provision. United States v. Owensby , 188 F.3d 1244, 1246 (10th Cir. 1999). Additional ly, a departure for an overrepresented criminal history c ategory cannot actually reduce a defendant’s criminal history category so that he may qualify for the safety valve provision. Id. Accordingly, because Velasquez-Meza does not qual ify for the safety valve provision and was subject to the mandatory minimum sentence of ten years, any departure from the criminal history cate gory would have no affect on his sentence. See , e.g. , United States v. Santiago , 201 F.3d 185, 187 (3d Cir. 1999) (“Any deviation from the statutory minimum se ntence can only be had through the specific procedures established through18 U.S.C. §§ 3553(e), 3553(f). . .”); cf. United States v. Campbell , 995 F.2d 173, 175 (10th Cir. 1993) (noting that downward departure from statutory mini mum would conflict with purpose of express limited exception in 18 U.S.C. § 3553(e)). -8- defendant.” United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998). In order to do so, the district court must unambiguous ly state that it believes it lacks authority to depart. See United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). Ambiguous statements are treated as if the district court was aware of its legal authority to depart but exercised its discret ion by choosing not to depart. United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999). Here, the district court did not unambiguously asse rt that it had no authority to depart. At most, the district court’s statement s concerning its ability to depart from the original criminal history category are amb iguous. Accordingly, this court does not have jurisdiction to review Velasque z-Meza’s downward departure challenge. 2-9-

C. Adjustments Velasquez-Meza also argues that he should not have received an adjustment for obstruction of justice and was eligible for the minor participant reduction. His argument, however, has no impact on his sentenc e because the safety valve provision under which he did not qualify is the onl y applicable exception to the minimum mandatory. See United States v. Santiago , 201 F.3d 185, 187 (3d Cir. 1999). Therefore, the district court did not err i n refusing to consider any adjustments to Velasquez-Meza’s offense level.
IV. CONCLUSION Based upon the foregoing reasons, the district court’s determination that Velasquez-Meza was not eligible for the safety valv e provision is AFFIRMED

. Velasquez-Meza’s challenge to the district court’s denial of the downward departure is DISMISSED for lack of jurisdiction.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge