*This order and judgment is not binding precedent, except under the doctrines of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

JUL 13 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-2352

v. (D. New Mexico)

GERARDO RAMIREZSAMANIEGO,

Defendant - Appellant.

(D.C. No. CR-97-291-JP) 

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1Ramirez pled guilty without having entered into a plea agreement with the United

States. R. Vol. III at 13; Appellee’s Br. at 2.

-2-

In this direct appeal, defendant Gerardo Ramirez-Samaniego (“Ramirez”)

challenges his sentence for a drug offense on the ground that the district court

erred in failing to apply the “safety valve” provision of 18 U.S.C. § 3553(f). We

affirm.

BACKGROUND

In April 1997, Mr. Ramirez was stopped by the United States Border Patrol

and found to be in possession of 2.5 pounds of cocaine. After being charged in a

one-count indictment with possession with the intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, Ramirez

pled guilty.1 The presentence investigation report (“PSR”) stated that it appeared

Ramirez would not qualify for application of 18 U.S.C. § 3553(f). At sentencing,

the district court questioned this conclusion, and reset sentencing so that Ramirez

could be debriefed by the government.

During the debriefing, Ramirez explained that while he was living in

Mexico, two men from whom he had occasionally purchased cocaine asked him to

transport a quantity of cocaine across the border to Albuquerque, New Mexico. 

Although he had previously refused to do so, this time Ramirez accepted and
2At sentencing, the task force officer who debriefed Ramirez testified that the

cocaine found in Ramirez’ possession was valued between $13,000 and $15,000. R. Vol.

II at 13. 

-3-

made plans to have one of the two drug dealers meet him when he arrived. 

Ramirez failed to provide the government with the full names of these men,

however, as well as any indication of how to contact them or any specific

information about where the drugs were supposed to be taken. R. Vol. II at 4.

After the debriefing, a second sentencing hearing was held. At that

hearing, the Drug Enforcement Agency task force officer who had debriefed

Ramirez testified that the government felt Ramirez was being untruthful because

it is unlikely that the two drug dealers would have entrusted Ramirez with such

valuable contraband without having given him more information.2 Ramirez

responded that the men had purposefully given him little information in an effort

to shield themselves from arrest and prosecution, and asserted that under their

plan, it was unnecessary for him to know how to contact them. Id. at 12-13.

Ultimately, the district court found that Ramirez did not qualify for relief

under § 3553(f) because he had not “truthfully provided to the government all

information and evidence [he] has concerning the offense or offenses that were

part of the same course of conduct of [sic] a common scheme or plan.” Id. at 14. 
3Under the guidelines alone, Ramirez’ sentencing range would have been 46-57

months. However, as the PSR correctly stated, “[p]ursuant to 5G1.1(b), where the

statutorily required minimum sentence is greater than the maximum of the applicable

guideline range, the statutorily required minimum sentence of sixty (60) months shall be

the guideline sentence.” R. Vol. IV ¶ 47.

-4-

Therefore, Ramirez was sentenced to the statutory mandatory minimum of sixty

months’ imprisonment, followed by four years’ supervised release.3

DISCUSSION 

“The district court’s specific conclusion that the defendant is or is not

eligible for relief under § 3553(f) is reviewed for clear error.” United States v.

Roman-Zarate, 115 F.3d 778, 784 (10th Cir. 1997). Ramirez bears the burden of

proving by a preponderance of the evidence that he has met the criteria contained

in § 3553(f). See United States v. Myers, 106 F.3d 936, 941 (10th Cir.), cert.

denied, 117 S. Ct. 2446 (1997).

Section 3553(f) serves “as a ‘safety valve’ to permit courts to sentence less

culpable defendants to sentences under the guidelines, instead of imposing

mandatory minimum sentences,” United States v. Acosta-Olivas, 71 F.3d 375, 378

(10th Cir. 1995), and provides that the district court shall impose a sentence

pursuant to the sentencing guidelines, without regard to the statutory minimum, if

the defendant meets five criteria. See 18 U.S.C. § 3553(f)(1)-(5); see also

U.S.S.G. § 5C1.2 (adopting verbatim the language of § 3553(f)).
-5-

In this case, the government concedes that Ramirez meets the requirements

of subparagraphs (1) - (4). Appellee’s Br. at 7. The only issue, therefore, is

whether he has satisfied the fifth requirement of § 3553(f), which requires that:

not later than the time of the sentencing hearing, the defendant has

truthfully provided to the Government all information and evidence

the defendant has concerning the offense or offenses that were part

of the same course of conduct or of a common scheme or plan, but

the fact that the defendant has no relevant or useful other 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).

As indicated above, at sentencing, after considering the arguments just

outlined, the district court found that Ramirez had failed to comply with the fifth

requirement of § 3553(f). The district court stated:

As a matter of common sense, this defendant should know

more about the identity of [the two drug dealers] than he related to

law enforcement. It stretches the imagination to believe that he just

happens to bump into them on a regular basis . . ., resists their

entreaties to transport cocaine and then finally agrees to do that

without knowing more about them. I agree with [the government]

that because of the value of the contraband with which he was

entrusted it doesn’t make sense that he is so lacking in knowledge of

their identity.

So it will be my finding that he has not satisfied 18 United

States Code Section 3553(f)5 and therefore does not qualify for

sentencing below the statutory mandatory sentence of 60 months.

R. Vol. II at 14-15.
-6-

The district court’s conclusion that Ramirez failed to provide all the

information likely to be in his possession is not clearly erroneous. See Anderson

v. City of Bessemer City, 470 U.S. 564, 573-74 (1985); Bill’s Coal Co. v. Board

of Pub. Util., 887 F.2d 242, 244 (10th Cir. 1989). AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge