                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4787


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CRISTINO PARRA MEDINA,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Loretta C. Biggs,
District Judge. (1:15-cr-00141-LCB-1)


Submitted:   September 23, 2016           Decided:   December 9, 2016


Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


J. Scott Coalter, COALTER LAW, P.L.L.C., Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Cristino       Parra      Medina       pled        guilty     to     conspiracy          to

distribute cocaine and was sentenced to 120 months in prison.

On appeal, Medina contends that the district court improperly

denied him application of the safety valve.                         We vacate Medina’s

sentence and remand for resentencing.

      The    safety-valve        statute          requires      sentencing           courts    to

disregard     any      statutory       mandatory          minimum        sentence       for     a

defendant who establishes that he meets five criteria.                                  See 18

U.S.C. § 3553(f); U.S.S.G. § 5C1.2.                      These criteria include that

“the defendant does not have more than 1 criminal history point,

as   determined      under     the    sentencing          guidelines,”          18    U.S.C.    §

3553(f)(1),      and    that     “the       defendant        was    not    an        organizer,

leader,     manager,     or    supervisor         of   others      in    the     offense,      as

determined under the sentencing guidelines,” id. § 3553(f)(4).

Application     of     the    safety       valve    is    mandatory       where       the     five

specific factors are present.                  United States v. Beltran-Ortiz,

91 F.3d 665, 667 n.1 (4th Cir. 1996).

      The probation officer who prepared the presentence report

(PSR) in     this     case     determined         that    Medina    had        zero    criminal

history     points,     that    he     did    not      qualify     for     a     role-in-the-

offense      enhancement,            and     that         the      other        safety-valve

requirements      were        satisfied.            The    prepared        PSR        therefore

recommended     application          of     the     safety      valve      and       calculated

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Medina’s Guidelines sentence without regard to the otherwise-

applicable statutory mandatory minimum sentence.             According to

the PSR, Medina’s advisory sentencing range was 87-108 months.

Counsel for Medina and the government agreed with the sentence

calculations and recommendations contained in the PSR.

     At the sentencing hearing, the district court identified no

error in the PSR’s factual conclusions or sentence calculations,

but the court nonetheless expressed concern about applying the

safety-valve statute to Medina.           The court noted that, because

Medina was an illegal alien, he might have had prior criminal

activity outside of the United States.           The court also expressed

concern about Medina’s role in the offense, given his connection

to the leader of the conspiracy in Mexico.

     In light of these concerns, the district court declined to

apply the safety valve.     The court, however, did not impose an

aggravated   role   enhancement     and    did    not   increase   Medina’s

criminal history category.        Instead, the court adopted the PSR

as written, with the exception of the safety-valve-related two-

level reduction in Medina’s total offense level.             See J.A. 252

(Statement of Reasons adopting PSR except for “[t]he two-level

reduction for safety valve[, which] does not apply based on the

fact the defendant was residing in the United States illegally

and there is no way to determine if he had any criminal history

in Mexico.   Therefore, the Total Offense Level is 31.”).

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       Medina argues on appeal that the district court erred by

refusing to apply the safety valve.                     We agree.

       The district court concluded that, because of his status as

an illegal alien, Medina could not prove that he did not have

more than 1 criminal history point.                        The safety-valve statute,

however, only requires that Medina prove he “does not have more

than    1     criminal        history    point,          as        determined      under     the

sentencing        guidelines.”          18     U.S.C.          §    3553(f)(1)        (emphasis

added); accord U.S.S.G. § 5C1.2(a)(1).                             It is undisputed that

the    Guidelines       calculation       in       the     PSR      and     adopted    by    the

district      court     met    this     requirement.                The     district   court’s

conclusion that there was potentially other criminal activity

outside of the United States is purely speculative, impossible

to disprove, and irrelevant to whether Medina had more than 1

criminal history point, as determined under the Guidelines.

       As    to   Medina’s      role    in   the        offense,          the   statute    again

simply requires proof that “the defendant was not an organizer,

leader,      manager,    or    supervisor          of    others        in   the   offense,    as

determined under the sentencing guidelines.”                                Id. § 3553(f)(4)

(emphasis added); accord U.S.S.G. § 5C1.2(a)(4).                                  The district

court       affirmatively      declined      to         apply      a   role-in-the-offense

enhancement to Medina, see J.A. 101-02, and the PSR as adopted

by the district court determined that Medina did not meet the

Guidelines’       requirements         for     such       an       enhancement.        Because

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Medina    did    not   receive    a   role-in-the-offense        enhancement,   he

satisfied the safety-valve requirements.               See U.S.S.G. § 5C1.2

cmt. n.5 (“‘Organizer, leader, manager, or supervisor of others

in the offense, as determined under the sentencing guidelines,’

as used in subsection (a)(4), means a defendant who receives an

adjustment for an aggravating role under § 3B1.1 (Aggravating

Role).” (emphasis added)).

     We therefore conclude that the requirements of the safety-

valve statute were satisfied in this case, and that the district

court erred by refusing to apply the statute when sentencing

Medina.    Accordingly, we vacate Medina’s sentence and remand for

resentencing.       We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before    this   court   and     argument    would   not   aid    the   decisional

process.

                                                           VACATED AND REMANDED




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