1The Honorable Thomas M. Shanahan, United States District Judge for the

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2645

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United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the District

Oscar Hernandez Rios, * of Nebraska.

*

Appellant. *

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Submitted: January 13, 1999

Filed: March 8, 1999

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Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

After a jury trial, Oscar Hernandez Rios was convicted on three counts of

possession of methamphetamine with the intent to distribute it and of a related

conspiracy count. The district court1 sentenced Mr. Rios to a term of 151 months of

imprisonment. He appeals both his convictions and his sentence, and we affirm.
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I.

As part of an ongoing investigation into the activities of Mr. Rios and Dale

Selko, law enforcement officers from the local sheriff's department received

information that Mr. Selko was distributing methamphetamine from a hotel room.

They searched the room and found approximately one pound of methamphetamine,

which Mr. Selko identified as having been supplied to him by Mr. Rios. The officers

arrested Mr. Selko, and he agreed to assist them in planning and carrying out a

reverse sting operation in which he would return the methamphetamine to Mr. Rios.

Authorities conducted a successful sting operation at the hotel the next day, and they

arrested Mr. Rios and subsequently charged him.

On appeal, Mr. Rios maintains that there was insufficient evidence to convict

him of conspiracy because Mr. Selko was cooperating with local law enforcement at

the time that the reverse sting operation was carried off. We disagree. It is of course

a well-established rule that "there can be no indictable conspiracy involving only the

defendant and government agents and informers." United States v. Nelson, __ F.3d

__, 1999 WL 1842 at *4 (8th Cir. 1999). While Mr. Rios is therefore correct that no

conspiracy could have existed between him and Mr. Selko during the sting operation

itself, we believe that there is ample evidence in the record of his knowledge of and

participation in a conspiracy to distribute methamphetamine prior to that date. 

Mr. Selko testified that he purchased up to ten pounds of methamphetamine

from Mr. Rios between October, 1996, and November, 1997, and that Mr. Rios

supplied the pound of methamphetamine that was found in the hotel room. Gregory

Beiriger, who had purchased methamphetamine from Mr. Selko, testified that Mr.

Selko told him in May, 1997, that Mr. Rios was his supplier. In addition, video and

audio recordings of the sting operation showed Mr. Selko counting out $3,500 and

telling Mr. Rios to record this as a payment, then placing a bag containing

methamphetamine on a table and complaining to Mr. Rios about its quality. The

recordings showed Mr. Rios subsequently picking up the bag, looking inside, and
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vouching for the quality of the drug. We believe that the witnesses’ testimony and

these recordings provide abundant evidence of Mr. Rios's knowledge of and

participation in a conspiracy to distribute methamphetamine prior to the meeting in

the hotel room. The verdict on the charge of conspiracy is thus more than amply

supported by the record. 

Mr. Rios also maintains that the trial court should have instructed the jury that

he could not be convicted of conspiracy based solely on the events occurring during

the sting operation. Mr. Rios requested no such instruction at trial, however, and we

see no plain error here. See United States v. Jorgensen, 144 F.3d 550, 561 (8th Cir.

1998). It is clear from the record that the evidence relating to the sting operation was

introduced as proof of Mr. Rios's prior knowledge of and participation in the

conspiracy, rather than as evidence of an ongoing conspiracy between the two men

during that operation itself. We do not believe that an instruction was necessary to

explain this distinction to the jury. 

II.

The jury found Mr. Rios guilty of possession of methamphetamine with the

intent to distribute it based on his receipt during the sting operation of the bag

containing methamphetamine. Mr. Rios contends that there was insufficient evidence

to support his conviction for this offense. We disagree. The video and audio

recordings of Mr. Rios accepting the bag of methamphetamine and vouching for its

quality, coupled with Mr. Selko's testimony that Mr. Rios had delivered the

methamphetamine to him for distribution a few days earlier, are sufficient to support

the jury's verdict on possession with intent to distribute.

III.

Mr. Rios maintains that the trial court erred when it failed to apply the “safety

valve” provision of the sentencing guidelines. See U.S.S.G. § 5C1.2 and 18 U.S.C.

§ 3553(f). Because Mr. Rios failed to request application of the safety valve
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provision or to object to the sentence before the trial court, we review the court’s

sentencing decision for plain error. 

In order to be eligible for a more lenient sentence under the safety valve

provision, Mr. Rios had “the burden to show, through affirmative conduct, that he

[had] given the government truthful information and evidence about the relevant

crimes before sentencing,” United States v. Weekly, 118 F.3d 576, 581 (8th Cir.

1997), modified on other grounds, 128 F.3d 1198 (8th Cir. 1997), cert. denied, 118

S. Ct. 611 (1997); see also U.S.S.G. § 5C1.2. (The government concedes that he met

the other conditions of eligibility set forth in § 5C1.2). While Mr. Rios did meet with

law enforcement authorities prior to sentencing, the government contended that he

failed to provide truthful information regarding his crimes, and Mr. Rios did not

dispute the government’s contention at the sentencing hearing. We conclude that

because he failed to produce evidence of his eligibility, the trial court’s decision to

sentence him without regard to the safety valve provision could not have been plain

error. Indeed, it would have been plain error to apply the safety valve provision on

this record.

IV.

For the foregoing reasons, we affirm the judgment of the trial court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.