United States v. Montero-Sanchez , 71 F. App'x 790 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
JUL 30 2003
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-3320
v.
(D.C. No. 02-CR-20020-KHV)
(D. Kan.)
JAVIER MONTERO-SANCHEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and HARTZ, Circuit Judges.
Defendant Javier Montero-Sanchez pled guilty to one count of possession
with intent to distribute more than 500 grams of methamphetamine in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and he was sentenced to a term of
imprisonment of 120 months. (App. at 1–2.) On appeal, counsel for the
Defendant has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
*
After examining appellant’s brief and the 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)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
presenting the Defendant’s challenge to the district court’s refusal to apply
§ 5C1.2, the “safety valve” provision, of the Sentencing Guidelines. 1 Counsel
also moves for leave to withdraw as Defendant’s counsel. Neither the Defendant
nor the government filed responses to the Anders brief, and we AFFIRM
Defendant’s sentence.
We have fully examined the proceedings as required by Anders, 386 U.S. at
744, and conclude that there are no issues besides the one raised in the
Defendant’s brief that warrant consideration. We review the district court’s
decision whether the Defendant is eligible for safety valve relief under the
Sentencing Guidelines for clear error. United States v. Roman-Zarate, 115 F.3d
778, 784 (10th Cir. 1997). Thus, we will not reverse the district court unless its
decision is “without factual support in the record” or unless “we are left with a
definite and firm conviction that a mistake has been made.” United States v.
Beaulieu, 893 F.2d 1177, 1182 (10th Cir. 1990). The Defendant must bear the
burden of showing, by a preponderance of the evidence, that the § 5C1.2 safety
valve provision applies. United States v. Verners, 103 F.3d 108, 110 (10th Cir.
1996). If, however, the Defendant meets the requirements of § 5C1.2, application
of the safety valve provision is mandatory. Id. at 110 n.3.
The November 1, 2001, edition of the sentencing guidelines applied to the
1
Defendant’s case. (App. at 63.)
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Section 5C1.2 allows district courts to avoid imposing the statutorily
mandated minimum sentence, and apply a lower sentence generated by the
Guidelines instead, if the Defendant satisfies five criteria. 2 U.S.S.G. § 5C1.2; 18
U.S.C. § 3553(f). There is no dispute that the Defendant meets the first four
criteria of § 5C1.2. (App. at 42.) The issue is whether the Defendant complied
with subsection (a)(5), which requires a defendant to truthfully tell all he knows
to the government concerning his offense. U.S.S.G. § 5C1.2(a)(5); Verners, 103
F.3d at 110.
At the sentencing hearing, the district court awarded the Defendant a three-
level downward departure for acceptance of responsibility. (App. at 51, 64.) See
U.S.S.G. § 3E1.1(a) and (b). Based on an offense level of 29 and a criminal
history category of I, the Guidelines generated a sentencing range of from 87 to
108 months imprisonment. Under 21 U.S.C. §841(b)(1)(A), however, the
2
The criteria are that:
(1) the defendant does not have more than 1 criminal history point . . . ;
(2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon . . . 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 . . . ; 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 . . . .
U.S.S.G. § 5C1.2(a).
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statutory minimum term of imprisonment is 120 months. Thus, if the district
court had found § 5C1.2 applicable, it would not have been bound by the statutory
minimum sentence of 120 months and the Defendant would have received a
shorter sentence. 3
Defense counsel objected to the Presentence Report at the hearing because
it did not recommend application of the safety valve provision. (App. at 42–51.)
The district court heard argument on the issue, but determined that the Defendant
did not “provide[] all relevant information concerning this offense” (id. at 50) and
therefore refused to apply the safety valve provision. We conclude that it was not
clear error for the district court to reach this conclusion.
Defense counsel argued at the sentencing hearing that the Defendant
provided the police with all of the information he possessed about the drug
delivery with which he was involved. Although the Defendant did provide some
information to the police, the district court concluded that he was not truthful in
doing so. For example, the district court pointed to the fact that the Defendant
was unable to locate his own home after being driven to the Kansas City
neighborhood he claimed to live in by police officers. (App. at 48.) Despite the
fact that the Defendant claimed to have lived there for only a short time, there is
3
In addition to freeing a defendant from the application of the statutorily
mandated minimum sentence, § 5C1.1 works in conjunction with § 2D1.1(b)(6) to
decrease a defendant’s offense level by two levels. U.S.S.G. § 2D1.1(b)(6).
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evidence that he told police officers that during that time he had driven around
the city, making it unlikely that he did not, in fact, know where he lived. (App. at
48.) The court, therefore, concluded that the Defendant had deceived the police
as to the location of his residence.
Because there is a factual basis in the record for the district court’s refusal
to apply the safety valve provision, see Beaulieu, 893 F.2d at 1182, we find that it
was not clear error for the district court to have refused to apply § 5C1.2. The
Defendant’s sentence is AFFIRMED, and we GRANT counsel’s motion to
withdraw.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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