### PUBLISH

UNITED STATES COURT OF APPEALS Filed 12/31/96 TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GUESSINIA VERNERS, a/k/a GUESSINIA HOLLAND, Defendant-Appellant, No. 95-5235

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 93-CR-001-02-C)

Submitted on the Briefs: Stephen C. Lewis, United States Attorney, and Allen J. Litchfield, Assistant United States Attorney, Tulsa, Oklahoma, on the bri ef for Plaintiff-Appellee. C.W. Hack of Tulsa, Oklahoma, on the brief for Defe ndant-Appellant.

Before SEYMOUR , Chief Judge, KELLY and LUCERO , Circuit Judges.

SEYMOUR , Chief Judge.1 After examining the briefs and appellate record, th is panel has determined

that oral argument would not materially assist the determination of this appeal. See F ED
. R. A PP
. P. 34(a); 10th C IR . R. 34.1.9. Therefore, the case is ordered submitted without oral argument.

2 If the statutory minimum sentence did not apply, Ms . Verners would be subject to no more than a sentence of between 78 an d 97 months. Resentencing Tr. at 6. - 2 - Guessinia Verners was convicted of possession of co caine base with intent to distribute, establishment of manufacturing operations, and aiding and abetting her co-defendant Laroon Verners in the commission o f those crimes, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 856(a)(1), an d 18 U.S.C. § 2. She was sentenced to a term of imprisonment of 151 months, followed by a ten year period of supervised release. On direct appeal we reverse d all convictions except that of aiding and abetting the cocaine base possession cha rge. United States v. Verners , 53 F.3d 291, 298 (10th Cir. 1995). Ms. Verners nowappeals her resentencing on remand. We affirm. 1
Ms. Verners asserts that the district court erred at resentencing when it imposed the mandatory minimum sentence of 120 month s and a five year period of supervised release. 2 She argues that she should have received a lessersentence as allowed under 18 U.S.C. § 3553(f) and USSG § 5C1 .2 (1995) for “relatively less culpable offenders,” United States v. Acosta-O livas , 71 F.3d 375, 379 (10th3 The Government argues that “because the sentencing court clearly

understood its own ability to depart, and the fact that the guidelines were properly applied, this appeal is outside the jurisdiction of this Court.” Aplee. Br. at 3. The Government relies on a statement by this court made in review of a discretionary sentencing departure, in which we said “[a]bsent th e trial court’s clear misunderstanding of its discretion to depart, or it s imposition of a sentence which violates the law or incorrectly applies the guideli nes, we have no jurisdiction to review a refusal to depart.” United States v. Belt , 89 F.3d 710, 714 (10th Cir. 1996). However, the provision at issue here, USSG § 5C1.2, is not discretionary; it requires a departure from the minimum sentence o n finding that certain conditions are met. Id. (“the court shallimpose a sentence . . . without regard to any statutory minimum sentence”) (emphasis added). We therefore have jurisdiction to review the district court’s finding s under the standard of review set out in the text.

4 The five criteria are: (continued...) - 3 - Cir. 1995), or as allowed by the existence of a “mi tigating circumstance” under 18 U.S.C. 3553(b). We will consider each of these ass ertions in turn. 3 “We review the district court’s application of the Sentencing Guidelines de novo, and its factual findings for clear error.” U nited States v. Jaramillo , 98 F.3d 521, 525 (10th Cir.), cert. denied , 65 U.S.L.W. 3369 (Nov. 18, 1996). “[A] district court’s application of the correct legal s tandard to a particular defendant . . . would ordinarily be reviewed for clear error. ” Acosta-Olivas , 71 F.3d at 378 n.3. Section 5C1.2 provides “the court shall impose a se ntence . . . without regard to any statutory minimum sentence, if the co urt finds” at sentencing that the defendant has met each of five 4 specific criteria set out in subsections (1)4 (...continued)

(1) the defendant does not have more than 1 crimina l history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible t hreats of violence or possess a firearm or other dangerous we apon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious b odily injury to any person; (4) the defendant was not an organizer, leader, mana ger, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a cont inuing criminal enterprise, as defined in 21 U.S.C. § 848; and (5) not later than the time of the sentencing hearin g, the defendant has truthfully provided to the Government all infor mation and evidence the defendant has concerning the offense o r 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 precl ude a determination by the court that the defendant has c omplied with this requirement. USSG § 5C1.2.

- 4 - through (5). USSG § 5C1.2; 18 U.S.C. § 3553(f). T he Government and Ms. Verners agree that she meets the first four relativ ely objective criteria in section 5C1.2. The disagreement arises with regard to her compliance with subsection 5, which requires a defendant to “truthfully tell all [s]he knows to the government,” Acosta-Olivas , 71 F.3d at 379. To satisfy subsection 5, a defen dant must tell the Government about both his or her involvement, and a lso what he or she knows about the involvement of other participants in the crime. Id.- 5 -

Generally, the burden is on the defendant to show t hat a reduction in sentencing is appropriate. See , e.g. , United States v. Ayers , 84 F.3d 382, 383 (10th Cir. 1996) (“It is the defendant’s burden to establish by a preponderance of the evidence that he or she is entitled to an offen se reduction [under § 3B1.2].”); United States v. Gassaway , 81 F.3d 920, 922 (10th Cir. 1996) (“A defendant b ears the burden of establishing his entitlement to a two -level reduction under § 3E1.1.”). Although we have not previously ruled in this circuit on the burden as applied to USSG § 5C1.2, we now follow the reasonin g set out by other circuits and hold that the defendant has the burden of provi ng, by a preponderance of the evidence, the applicability of this section. See United States v. Ramirez , 94 F.3d 1095, 1100-1102 (7th Cir. 1996) (holding that burde n of showing compliance with USSG § 5C1.2 is on defendant, and commenting on ana lysis of and similar conclusion reached by First, D.C., Fourth, Fifth, S ixth, and Ninth Circuits); United States v. Ajugwo , 82 F.3d 925, 929 (9th Cir. 1996) (holding defendant “had the burden of proving, by a preponderance of t he evidence, that she qualified for the safety valve provisions” of § 5C1.2), petit ion for cert. filedNo. 96-6223 (Oct. 4, 1996). Ms. Verners asserted to the district court and reas serts here that she has given to the Government all the information she is aware of on the matter, and thus has satisfied subsection 5. The record indicates otherwise.- 6 -

At trial, a statement allegedly made by Ms. Verners indicating her awareness of the presence of cocaine in her house w as admitted against her and formed part of the basis of her aiding and abetting conviction. Verners , 53 F.3d at 294. Although the statement was disputed at tri al, in Ms. Verners’ written objections to the presentence report she admitted t hat she made the statement. Rec. at Doc. 94. At the resentencing hearing, Ms. Verners was given the opportunity to comment on her knowledge of the crim e and of other participants, and she declined to do so. Resentencing Tr. at 7, 19. In fact, rather than discussing the offense at the hearing, her attorneyconceded that she continued to deny it. Resentencing Tr. at 8. However, her stat ement indicating her knowledge of the drug activity in her house demonstrates thatMs. Verners did know something about the crimes, contrary to her asserti on that she knew nothing. It is clear there is reason to believe that Ms. Ver ners has undisclosed information about the offense for which she was con victed and that, although she was offered the opportunity, she has not “truthfull y provided to the Government all information and evidence [which she has] concer ning the offense.” USSG § 5C1.2. It was not clearly erroneous for the distri ct court to conclude that Ms. Verners failed to meet her burden of showing she wa s due a downward departure under section 5C1.2.- 7 -

Ms. Verners also contends that there existed mitigating circumstances “not taken into consideration by the Sentencing Commissi on,” 18 U.S.C. § 3553(b), which should have reduced her sentence, and that byfailing expressly to rule on this issue the district court indicated its mistake n belief that it lacked authority to grant a downward departure. Section 3553(b) gives a district judge discretion to depart from a guidelines sentence if certain mitigating circumstances are present. Id. However, Ms. Verners sentence is not a guidelines sentence. Rather, it is a mandatory minimum sentence imposed by statute. 21 U.S.C. § 841(b)(1)(A). We have held that the district court has no discretion to depart from a statutory minimum sentence for section 3553(b) mitigating cir cumstances. United States v. Mosley , 965 F.2d 906, 916 (10th Cir. 1992). Consequently , the district court did not err in failing to rule on the request for a sec tion 3553(b) departure. For the reasons stated above, we AFFIRM the distric t court’s resentencing of Ms. Verners.