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United States v. Otei Escamilla-Cazares, 149 F.3d 1192, 10th Cir. (1998)
United States v. Otei Escamilla-Cazares, 149 F.3d 1192, 10th Cir. (1998)
3d 1192
98 CJ C.A.R. 2485
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a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.
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); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
BACKGROUND
The next day, an officer from the Denver Police Department contacted Mr.
Escamilla-Cazares at the jail and asked him if he wished to continue to
cooperate. He said that he did, and, after receiving a Miranda warning, he
signed a written waiver. Mr. Escamilla-Cazares identified the supplier of the
cocaine, Mr. Castillo-Garcia, by photograph and agreed to make telephone calls
to him to set up a meeting to pay for the cocaine and to obtain another kilogram
of cocaine. Mr. Escamilla-Cazares called Mr. Castillo-Garcia several times and
they made arrangements for Mr. Escamilla-Cazares to meet with a runner and
pay for the kilogram of cocaine. When Mr. Escamilla-Cazares and the police
officer arrived at the designated place for the drug transaction, Mr. EscamillaCazares got scared and declined to cooperate further. He continued, however, to
receive pages from Mr. Castillo-Garcia. Mr. Castillo-Garcia was subsequently
arrested and indicted, along with Mr. Escamilla-Cazares, for conspiracy to
possess with intent to distribute cocaine. The charges against Mr. CastilloGarcia were eventually dismissed.1
DISCUSSION
7
18 U.S.C. 3553(f)(5); see also U.S.S.G. 5C1.2(5). The defendant bears the
burden of proving he meets the requirements of 3553(f). United States v.
Myers, 106 F.3d 936, 941 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2446,
138 L.Ed.2d 205 (1997). While we review de novo the district court's
interpretation of the statute and the sentencing guidelines, we review for clear
error the court's "application of the correct legal standard to a particular
defendant." Acosta-Olivas, 71 F.3d at 378 n. 3.
10
CONCLUSION
11
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
The charges were dismissed because the evidence leading to Mr. CastilloGarcia's arrest was obtained, unbeknownst to the government, after Mr.
Escamilla-Cazares had requested appointment of counsel