                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4779


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

TORIANA MARCELLUS CAVE,

                  Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:06-cr-00474-NCT-6)


Submitted:    July 28, 2009                 Decided:   January 19, 2010


Before MICHAEL, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A., Winston-
Salem, North Carolina, for Appellant.    Sandra Jane Hairston,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Toriana Marcellus Cave pled not guilty to conspiring

to distribute five kilograms or more of a substance containing a

detectable       amount     of   cocaine,       in   violation     of    21     U.S.C.

§ 841(b)(1)(A) (2006) and was released on bond.                         Five months

later,    Cave     was     arrested   on    a    complaint   alleging         that   he

threatened    a    Government       witness.         Thereafter,   a    superseding

indictment       charged     Cave   with    conspiring     to    distribute       five

kilograms or more of a substance containing a detectable amount

of cocaine (“Count One”) and threatening a witness, in violation

of 18 U.S.C. §§ 1512(b)(1) & (b)(2)(A) (2006) (“Count Two”).

Cave eventually pled guilty to Count One pursuant to a plea

agreement.

            At the conclusion of Cave’s sentencing hearing, the

district court determined that the safety valve provision in

18 U.S.C. § 3553(f) (2006) and U.S. Sentencing Guidelines Manual

(“USSG”) § 5C1.2(a)(5) did not apply to Cave because of Cave’s

threats against the witness and because Cave failed to provide a

complete proffer to the Government of his involvement in Count

One.     The district court determined that, due to the statutory

mandatory minimum, Cave had an advisory guidelines range of 120

to 135 months’ imprisonment, and the district court sentenced

Cave to 128 months’ imprisonment.               Cave timely noted his appeal.

On appeal, Cave’s counsel has filed a brief pursuant to Anders

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v. California, 386 U.S. 738 (1967).                       Cave has also filed a pro

se supplemental brief.

           In his Anders brief, Cave suggests that the district

court erred in concluding that he failed to carry his burden in

demonstrating that the USSG § 5C1.2(a) safety valve provision

should   apply    to   him.         A    district         court’s     determination    of

whether a defendant has satisfied the safety valve criteria is a

question of fact reviewed for clear error.                            United States v.

Wilson, 114 F.3d 429, 432 (4th Cir. 1997).                            This deferential

standard of review requires reversal only if this court is “left

with the definite and firm conviction that a mistake has been

committed.”      United States v. Stevenson, 396 F.3d 538, 542 (4th

Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573

(1985)).

           To    qualify      for       the       USSG        § 5C1.2(a)   safety   valve

provision, the defendant must establish the existence of the

five prerequisites:         (1) the defendant does not have more than

one   criminal    history     point;          (2)       the    defendant   did   not   use

violence or credible threats of violence in connection with the

offense; (3) the offense did not result in death or serious

bodily injury; (4) the defendant was not an organizer, leader,

manager,   or     supervisor;           and       (5)    the      defendant   truthfully

provides   the    Government    with          all       evidence    the    defendant   has

concerning the offense.        USSG § 5C1.2(a).

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               Here, the district court’s finding that Cave did not

qualify for the USSG § 5C1.2(a) safety valve was not clearly

erroneous.            Cave      told     the        sister-in-law               of     one     of     his

co-defendants that if the co-defendant did not keep her mouth

shut, her friends and family would “be going down with [him.]”

We    have    reviewed         the    record       and      conclude        that,      in     light    of

Cave’s       actions,     the        district       court       did       not    clearly       err     in

finding      Cave’s      statement       to        constitute         a     credible        threat     of

violence.          See USSG § 5C1.2(a)(2).                      Moreover, Cave failed to

provide information about his role as a courier in the larger

drug     conspiracy            alleged        in        the    indictment             and     informed

authorities only about his involvement with one co-defendant.

Accordingly,        the    district         court        did    not       err    in    denying       Cave

application of the USSG § 5C1.2 safety valve.

               Cave      has    also     filed          a     pro   se      supplemental            brief

raising three claims.                  First, Cave argues that his appellate

counsel      was    ineffective          in    filing          an   Anders           brief,    against

Cave’s wishes.           Cave’s claim is not cognizable on direct appeal

as the record does not conclusively establish that his counsel

has    rendered       ineffective           assistance.               See       United      States     v.

Baldovinos,        434    F.3d       233,     239       (4th    Cir.        2006).          Cave     next

appears to argue that he qualified for the USSG § 5C1.2 safety

valve provision because he supplied the Government with all the

information he had regarding his offense.                                    As discussed, the

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district court did not clearly err in finding that Cave failed

to satisfy USSG § 5C1.2(a)(5).                   Finally, Cave argues that the

safety valve provision should have been applied to him because

his threat was not credible.            The district court found otherwise

and that finding was not clearly erroneous.

               In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Cave’s conviction and sentence.                             This court

requires that counsel inform Cave, in writing, of the right to

petition   the     Supreme     Court    of       the    United     States      for   further

review.    If Cave requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel

may     move     in   this      court        for        leave      to    withdraw       from

representation.       Counsel’s motion must state that a copy thereof

was served on Cave.

               We dispense with oral argument because the facts and

legal    contentions     are    adequately             presented    in   the     materials

before    the    court   and    argument         would     not     aid   the    decisional

process.

                                                                                     AFFIRMED




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