United States v. Johnny Ray Montoya

166 F.3d 349

98 CJ C.A.R. 6403

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Johnny Ray MONTOYA, Defendant-Appellant.

No. 97-2329.

United States Court of Appeals, Tenth Circuit.

Dec. 18, 1998.

Before PORFILIO, McWILLIAMS, and HENRY, Circuit Judges.

1

ORDER AND JUDGMENT*

2

PORFILIO.

3

This case presents a single issue of whether appellant's possession of a firearm which he kept in the same closet as the controlled substance he distributed provides sufficient evidence to deny him the benefit of the sentencing "safety valve,"1 18 U.S.C. § 3553(f)(1)-(5), in the absence of any evidence he ever possessed, used, or carried any dangerous weapon in connection with the offense. Notwithstanding an inventive oral argument, we believe this case is absolutely controlled by United States v. Hallum, 103 F.3d 87, 89 (10th Cir.1996), a case this panel cannot overrule. United States v. Foster, 104 F.3d 1228, 1229 (10th Cir.1997). Accordingly, we AFFIRM the judgment of the district court.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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

1

The "safety valve" allows departure below minimum sentencing