*

 This order and judgment is not binding precedent, except under the doctrines of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

UNITED STATES COURT OF APPEALS

Filed 7/26/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

IGNACIO VILLEGAS-RIVERA,

Defendant-Appellant.

No. 95-2284

(D.C. No. CR 92-554 SC)

(D. N.M.)

ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and BRISCOE, 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.

In this direct appeal, Ignacio Villegas-Rivera raises one issue, which challenges

the propriety of his sentence. This court has jurisdiction to address this appeal pursuant to

18 U.S.C. § 3742(a).
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A jury found Villegas-Rivera guilty of conspiracy to possess with intent to

distribute more than 500 grams of cocaine, 21 U.S.C. § 846, and possession with intent to

distribute more than 500 grams of cocaine, 21 U.S.C. § 841(a)(1), and he was sentenced

to a total of 63 months' imprisonment. Villegas-Rivera argues the district court erred in

failing to consider his eligibility for relief under 18 U.S.C. § 3553(f) and U.S.S.G. §§

2D1(b)(4) and 5C1.2. We find no error and affirm.

18 U.S.C. § 3553(f) was enacted "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). 

In order to grant relief under § 3553(f), the sentencing court must find:

(1) the defendant does not have more than 1 criminal history point, as

determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or

possess a firearm or other dangerous weapon (or induce another participant to do

so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of

others in the offense, as determined under the sentencing guidelines and was not

engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and

(5) 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).

U.S.S.G. § 5C1.2 adopts verbatim the language of § 3553(f)(1)-(5). Effective

November 1, 1995, a new subsection was added to § 2D1.1 to implement § 5C1.2: "If the

defendant meets the criteria set forth in subdivisions (1)-(5) of § 5C1.2 (Limitation on

Applicability of Statutory Minimum Sentences in Certain Cases) and the offense level . . .
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is . . . 26 or greater, decrease by two levels." U.S.S.G. § 2D1.1(b)(4).

In Villegas-Rivera's presentence investigation report, which was prepared October

24, 1995, approximately one week before § 2D1.1(b)(4) became effective, the probation

officer identified § 5C1.2 as a sentencing option and briefly analyzed the five factors. 

The probation officer concluded that Villegas-Rivera failed to satisfy the fifth factor. 

U.S.S.G. § 2D1.1(b)(4) was enacted after the report was prepared but before the

sentencing hearing was held on November 19, 1995. Villegas-Rivera did not object to the

report prior to or at the sentencing hearing and did not request that the district court

review his sentence under the safety valve provision.

Villegas-Rivera's trial counsel does not represent him on appeal. He is represented

on appeal by an assistant federal public defender. Villegas-Rivera now contends he did

not initially object to the report because at that time his sentence exceeded the statutory

minimum. He argues, with no positive support in the record, that the only reason the

court did not grant relief under § 5C1.2 is because it was unaware of § 2D1.1(b)(4). He

also argues if he is given relief under § 2D1.1(b)(4), his offense level will be reduced

from 26 to 24, and with his criminal history category of I, his resulting guideline range

will be 52-63 months, less than the statutory minimum.

Essentially, Villegas-Rivera urges us to conclude the district court erred by not

granting relief sua sponte. He acknowledges, however, that his failure to object before

the district court results in plain error review. See Fed. R. Crim. P. 52(b); United States

v. Gerber, 24 F.3d 93, 95 (10th Cir. 1994).

Villegas-Rivera relies heavily upon an unpublished decision, United States v.

Ocampo, 1995 WL 527359 (1st Cir. Sept. 5, 1995). In Ocampo, defendant pleaded guilty
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before but was sentenced after Congress enacted 18 U.S.C. § 3553(f). The sentencing

court did not consider whether it applied. The First Circuit acknowledged that "[s]trictly

speaking, it is not 'plain error' in the literal sense for a district court to ignore a relief

provision where the provision's application depends upon the showing of specific facts,

where the burden is on the defendant to adduce those facts, and where the defendant has

failed to do so." 1995 WL 527359, *1. Nevertheless, because the record indicated the

court may not have been aware of the newly-adopted § 3553(f), the First Circuit

concluded that "justice would be served" by vacating the sentence and remanding to allow

defendant an opportunity to make the required showing. Id.

Unlike Ocampo, here the record affirmatively indicates the predicate is lacking for

relief under § 2D1.1(b)(4). The record reveals the district court was aware of the

sentencing option provided by § 3553(f) and § 5C1.2. Indeed, the court adopted the

factual findings and guideline applications from the presentence investigation report. The

report identified the relevant statutory and guideline provisions and analyzed whether

they applied, concluding the elements required to satisfy the fifth factor were absent. 

Although approximately four weeks passed from the date § 2D 1.1(b)(4) became effective

and the date of his sentencing hearing, Villegas-Rivera's trial counsel did not dispute that

the predicate for relief under § 2D1.1(b)(4) was absent.

We are unpersuaded by Villegas-Rivera's belated attempt to cure an issue he either

overlooked or purposefully waived before the district court. We find no plain error.

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge
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