UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 97-40340

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS LEON RUIZ,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas USDC No. B-96-CR-320-1

December 16, 1997 Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Carlos Leon Ruiz appeals his sentence following a guilty-plea

conviction for possession with intent to distribute a quantity

exceeding 100 kilograms of marihuana.

(a)(1),

841(b)(1)(B);

. Ruiz argues that the sentencing court

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. erred by failing to reduce his sentence for minor participation

under U.S.S.G. § 3B1.2 and by failing to apply the “safety valve”

provisions of § 5C1.2. A court's refusal to apply § 5C1.2 or §

3B1.2 is a factual finding that we review for clear error. See

United States v. Torres,

(5th Cir. 1997) (§

5C1.2); United States v. Lokey,

(5th Cir. 1991)

(§ 3B1.2).

We have reviewed the record and the briefs of the parties and

hold that the district court did not clearly err in finding that

Ruiz was not a minor participant in the drug offense. See United

States v. Brown,

(5th Cir. 1995) (holding that “minor

participant” reduction only available when defendant is

“substantially less culpable” than the average participant). In

addition, the sentencing court did not err in determining that the

“safety valve” provisions of § 5C1.2 did not apply because Ruiz

possessed a firearm in connection with the offense. See U.S.S.G.

§ 5C1.2(2). Although a coconspirator’s possession of a weapon will

not affect a defendant’s eligibility for a § 5C1.2 reduction, the

“safety valve” will not apply if the defendant possessed the weapon

himself. See U.S.S.G. § 5C1.2, comment. (n.4); United States v.

Wilson,

(5th Cir. 1997). Based on the testimony

of Ruiz’s codefendant as well as Ruiz’s own testimony, the district

court found that Ruiz had physical contact with the weapons and

knew their location and obvious purpose. These findings are not

-2- clearly erroneous.

AFFIRMED.

-3-