UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. ROBERTO DUAR TE SNYDER, Defendant–Appellant. No. 09-2312 (D.C. No. 1:08-CR-00823-JB-2) (D. N.M.)

ORDER AND JUDGMENT *

Before KELLY , EBEL , and LUCERO , Circuit Judges.

Roberto Duarte Snyder appeals his conv iction and sentence imposed for violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Synd er’s appointed appellate counsel filed an Anders brief, seeking permission to withdraw as counsel because the appeal is “wholly frivolous.” Anders v. California , 386 U.S. 738, 744 (1967 ). Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we grant counsel’s motion to withdraw

* The case is unanimously ordered subm itted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. The court generally disf avors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 29, 2010
Elisabeth A. Shumaker Clerk of Court- 2- and dismiss the appeal.
I In April 2008, Snyder was indicted on one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine and one co unt of possessing with intent to distribute five kilograms or more of cocaine. In exchan ge for Snyder’s guilty plea on the conspiracy count, the government successfully moved for the dismissal of the possession count. A probation officer then pr epared a Presentence Investigation Report (“PSR”) calculating Snyder’s base offense level as 32 but recommending a three-level downward adjustment for ac ceptance of responsibility pu rsuant to United States Sentencing Guideline (“U.S.S.G.”) § 3E1.1. The PSR initially recommended that the court apply the safety-valve provisions of U.S.S.G. § 5C1.2(a), wh ich would have saved Snyder from a ten-year mandatory minimum sentence, see 21 U.S.C. § 841(b)(1)(A). After the government argued that Snyder fa iled to fully and truthfully provide the government with details about the offense, however, the probation officer removed the PSR’s discussion of safety-valve eligib ility pending an evidentiary hearing. In advance of the ev identiary hearing, Snyder and a co-defendant submitted a joint sentencing declaration detailing th eir involvement in the offense. The declaration stated that an “old man” recruited Snyder to trans port drugs in exchange for a place to live, money, and drugs. It further stated that u nnamed individuals called Snyder to arrange for the transportation of drugs. All exchange s of drugs and money purportedly took place inside Snyder’s vehicle, when Snyder was not present. The joint declaration provided- 3- neither details about the old man’s appearance nor any description of the individuals who called Snyder or made the drug exchanges. Snyder did not meet with officials to supplement his statement with further details, even after the district court indicated that the joint declaration might be insufficient to qualify him for the safety-valve exception. After hearing evidence on the matter, the district court concluded Snyder was not entitled to the safety-valve exception. It explained: The Court does not expect Mr. Snyder neces sarily to be able to identify the old man or the various “persons un known” that appear throughout the declaration, but Mr. Snyder likely coul d have provided more information about them. For example, he could have at least given a physical description of the old man or some ot her information that might help to identify him. And he could have pr ovided more info rmation about the unknown persons who had Mr. Snyder contact the old man in the first place. Even if Mr. Snyder could not name these persons, he could have explained the circumstances in which he spoke with them, why they might have told him to contact the old man, and why Mr. Snyder was talking with them and decided to call the old man. The declaration is riddled with other examples of persons unknown, without a sliver of identifying information about any of them. . . . The deficien cy of Mr. Snyder’s proffer . . . is apparent on its face. The court sentenced Snyd er to ten years’ imprisonment. Snyder filed a timely notice of appeal. 1
II Under Anders , if an attorney exam ines a case and determ ines that any appeal

1 Although the district court’s judgment is dated July 8, 2009, it did not rule on the government’s objection to the application of the safety-valve exception—and therefore the judgment was not fina l—until December 15, 2009. Thus, Snyder’s notice of appeal, filed on December 22, 2009, was timely. See Fed. R. App. P. 4(b)(1)(A) (2009) (amended 2010).- 4- would be “wholly frivolous,” counsel may “so advise the court and request permission to withdraw.” 386 U.S. at 744. Counsel must submit a brief to both the appellate court and the client, pointing to anything in the record that could potentially present an appealable issue. Id. The client may then offer supplem ental argument to the court. Id. If, upon close examination of the record , the court determines that the appeal is frivolous, it may grant counsel’s request to withdr aw and dismiss the appeal. Id. In this case, counsel served Snyder with a copy of the appellate brief, and Snyder did not f ile a response. The record reveals th at the only arguably appealable issue is whether the district court improperly denied Snyder a safety-valve exception. We review for clear error a district court’s determination that a defendant is ineligible for the safe ty-valve exception. United States v. Stephenson , 452 F.3d 1173, 1180 (10th Cir. 2006). We agree with counsel that any argument that the district c ourt clearly erred is wholly without merit. The Guidelines provide: “[ T]he court shall impose a sent ence in acco rdance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteri a in 18 U.S.C. § 3553(f)(1)-(5).” U.S.S.G. § 5C1.2(a). “The defendant bears the bur den of proving by a pr eponderance of the evidence that he is enti tled to the safety-valve adjustment.” Stephenson , 452 F.3d at 1179. The district court determined that S nyder failed to demonstrate he had “truthfully provided to the Government all information and evidence the defendant ha[d] concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan” prior to his sentencing hear ing. § 3553(f)(5). Consequently, he was not- 5- entitled to relief under U. S.S.G. § 5C1.2(a). To meet the strictures of § 3553(f)(5), Sn yder’s “disclosure must not merely be truthful but also complete.” Stephenson , 452 F.3d at 1180 (q uotation and alteration omitted). “Obvious informational gaps” can su pport a district court’ s determination that a defendant’s disclosure was incomplete . United States v. Altamirano-Quintero , 511 F.3d 1087, 1098 (10t h Cir. 2007); see also Stephenson , 452 F.3d at 1180-81. The district court did not clearly err in finding the obvio us gaps in Snyder’s disclosures rendered them incomplete.
III For the foregoing reasons, we GRANT defense counsel’s motion to withdraw and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge