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 brief for Plaintiff-Appellee.

C.W. Hack of Tulsa, Oklahoma, on the brief for Defendant-Appellant.

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

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

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. 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 and 97 months. Resentencing

Tr. at 6.

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Guessinia Verners was convicted of possession of cocaine base with intent

to distribute, establishment of manufacturing operations, and aiding and abetting

her co-defendant Laroon Verners in the commission of those crimes, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 856(a)(1), and 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 reversed all convictions except that of

aiding and abetting the cocaine base possession charge. United States v. Verners,

53 F.3d 291, 298 (10th Cir. 1995). Ms. Verners now appeals 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 months and a five year period

of supervised release.2 She argues that she should have received a lesser sentence

as allowed under 18 U.S.C. § 3553(f) and USSG § 5C1.2 (1995) for “relatively

less culpable offenders,” United States v. Acosta-Olivas, 71 F.3d 375, 379 (10th
3The 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 the trial court’s clear

misunderstanding of its discretion to depart, or its imposition of a sentence which

violates the law or incorrectly applies the guidelines, 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 on finding that certain

conditions are met. Id. (“the court shall impose a sentence . . . without regard to

any statutory minimum sentence”) (emphasis added). We therefore have

jurisdiction to review the district court’s findings under the standard of review set

out in the text.

4The five criteria are:

(continued...)

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Cir. 1995), or as allowed by the existence of a “mitigating circumstance” under 18

U.S.C. 3553(b). We will consider each of these assertions in turn.3

“We review the district court’s application of the Sentencing Guidelines de

novo, and its factual findings for clear error.” United 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 standard 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 sentence . . . without

regard to any statutory minimum sentence, if the court finds” at sentencing that

the defendant has met each of five4 specific criteria set out in subsections (1)
4

(...continued)

(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.

USSG § 5C1.2.

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through (5). USSG § 5C1.2; 18 U.S.C. § 3553(f). The Government and Ms.

Verners agree that she meets the first four relatively 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 defendant must tell the

Government about both his or her involvement, and also what he or she knows

about the involvement of other participants in the crime. Id. 
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Generally, the burden is on the defendant to show that 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 offense reduction [under § 3B1.2].”);

United States v. Gassaway, 81 F.3d 920, 922 (10th Cir. 1996) (“A defendant bears

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 reasoning set out by other circuits

and hold that the defendant has the burden of proving, 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 burden of showing compliance with

USSG § 5C1.2 is on defendant, and commenting on analysis of and similar

conclusion reached by First, D.C., Fourth, Fifth, Sixth, 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 the evidence, that she qualified

for the safety valve provisions” of § 5C1.2), petition for cert. filed No. 96-6223

(Oct. 4, 1996).

Ms. Verners asserted to the district court and reasserts 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. 
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At trial, a statement allegedly made by Ms. Verners indicating her

awareness of the presence of cocaine in her house was 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 trial, in Ms. Verners’ written

objections to the presentence report she admitted that 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 crime 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 attorney conceded that she continued to

deny it. Resentencing Tr. at 8. However, her statement indicating her knowledge

of the drug activity in her house demonstrates that Ms. Verners did know

something about the crimes, contrary to her assertion that she knew nothing.

It is clear there is reason to believe that Ms. Verners has undisclosed

information about the offense for which she was convicted and that, although she

was offered the opportunity, she has not “truthfully provided to the Government

all information and evidence [which she has] concerning the offense.” USSG §

5C1.2. It was not clearly erroneous for the district court to conclude that Ms.

Verners failed to meet her burden of showing she was due a downward departure

under section 5C1.2. 
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Ms. Verners also contends that there existed mitigating circumstances “not

taken into consideration by the Sentencing Commission,” 18 U.S.C. § 3553(b),

which should have reduced her sentence, and that by failing expressly to rule on

this issue the district court indicated its mistaken 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 circumstances. 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 section 3553(b) departure. 

For the reasons stated above, we AFFIRM the district court’s resentencing

of Ms. Verners.