UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHNNY RAY MONTOYA,

Defendant-Appellant.

No. 97-2329

(D.C. No. CR-97-80-LH)

(District of New Mexico)

ORDER AND JUDGMENT*

Before PORFILIO, MCWILLIAMS, and HENRY, Circuit Judges.

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.

ENTERED FOR THE COURT

John C. Porfilio

Circuit Judge