United States v. Barrio (Elsa)

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 13 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 03-6083
v. (D.C. No. (00-CR-25-R)
ELSA BARRIO, aka Elsa Lopez, (W. D. Oklahoma)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge , BRISCOE , and HARTZ , Circuit Judges.
On July 17, 2000, a jury found Elsa Barrio (Defendant) guilty of (1)
conspiracy to distribute cocaine and phencyclidine (PCP), in violation of 21
U.S.C. §§ 841(a)(1) and 846; and (2) two counts of causing others to travel in
interstate commerce with intent to promote and carry on the unlawful activity of
transporting cocaine powder for redistribution, in violation of 18 U.S.C.
*
After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 1952(a)(3). She was sentenced to 121 months in prison on the first count and
60 months on each of the second two counts, to be served concurrently. This
court upheld her conviction. See United States v. Barrio, 41 Fed. Appx. 169(10th Cir. 2002). On January 13, 2003, Defendant filed a motion for reduction of
sentence under 18 U.S.C. § 3582(c)(2) (permitting court to reduce sentence when
“sentencing range . . . has subsequently been lowered”). The district court denied
the motion on February 7, 2003. We affirm.
Defendant argues that an amendment to the Sentencing Guidelines makes
her eligible for consideration of the “safety valve” reduction under USSG § 5C1.2
(providing reduction in sentence if certain criteria are met), and an additional
two-point reduction under USSG § 2D1.1(b) (providing 2-point reduction when
defendant qualifies for safety valve). We are not persuaded by her argument.
First, the amendment she cites was only a proposal and has not been adopted.
Second, the sentencing court actually considered the safety valve provision and
found that Defendant did not qualify because she was not truthful to the district
court. See USSG § 5C1.2(5) (requiring that “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 . . . .”).
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For substantially the same reasons set forth in the district court’s
February 7, 2003, order, we agree that Defendant does not qualify for the safety
valve or the 2-point reduction. The district court’s denial of Defendant’s motion
is AFFIRMED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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