* This order and judgment is not binding precedent, except under the doctrines of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, 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.1 Ramirez 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-Sa maniego (“Ramirez”) challenges his sentence for a drug offense on the g round that the district court erred in failing to apply the “safety valve” provis ion of 18 U.S.C. § 3553(f). We affirm.

BACKGROUND In April 1997, Mr. Ramirez was stopped by the Unite d States Border Patrol and found to be in possession of 2.5 pounds of coca ine. 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”) stat ed 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 purch ased cocaine asked him to transport a quantity of cocaine across the border t o Albuquerque, New Mexico. Although he had previously refused to do so, this t ime Ramirez accepted and2At 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 meethim when he arrived. Ramirez failed to provide the government with the f ull names of these men, however, as well as any indication of how to contac t 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 w as held. At that hearing, the Drug Enforcement Agency task force off icer 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 i nformation. 2 Ramirez responded that the men had purposefully given him l ittle information in an effort to shield themselves from arrest and prosecution, a nd 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 d id not qualify for relief under § 3553(f) because he had not “truthfully prov ided to the government all information and evidence [he] has concerning the of fense or offenses that were part of the same course of conduct of [sic] a commo n scheme or plan.” Id. at 14.3 Under 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 m andatory 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 forclear error.” United States v.
Roman-Zarate , 115 F.3d 778, 784 (10th Cir. 1997). Ramirez bear s 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 perm it courts to sentence less culpable defendants to sentences under the guidelin es, instead of imposing mandatory minimum sentences,” United States v. Acos ta-Olivas , 71 F.3d 375, 378 (10th Cir. 1995), and provides that the district co urt shall impose a sentence pursuant to the sentencing guidelines, without rega rd 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 informati on and evidence the defendant has concerning the offense or offense s 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 usef ul 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 considerin g the arguments just outlined, the district court found that Ramirez had failed to comply with the fifth requirement of § 3553(f). The district court state d:

As a matter of common sense, this defendant should know more about the identity of [the two drug dealers] t han he related to law enforcement. It stretches the imagination to b elieve that he just happens to bump into them on a regular basis . . ., resists their entreaties to transport cocaine and then finally ag rees to do that without knowing more about them. I agree with [the government] that because of the value of the contraband with wh ich he was entrusted it doesn’t make sense that he is so lacki ng 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 notqualify for sentencing below the statutory mandatory sentence o f 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 c learly erroneous. See Anderson v. City of Bessemer City , 470 U.S. 564, 573-74 (1985); Bill’s Coal Co. v. B oard of Pub. Util. , 887 F.2d 242, 244 (10th Cir. 1989). AFFIRMED.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge