                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4233



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOSE LUIS MORALES,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:06-cr-00037-sgw)


Submitted:   November 21, 2007            Decided:   January 7, 2008


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David L. Heilberg, DYGERT, WRIGHT, HOBBS & HEILBERG, PLC,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Anthony P. Giorno, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jose Luis Morales pled guilty to conspiracy to possession

of 500 grams or more of methamphetamine with intent to distribute,

21 U.S.C. § 846 (2000), and was sentenced to a term of 151 months

imprisonment.       Morales appeals his sentence, arguing that the

district court’s fact findings in connection with the sentence were

error    under   United       States   v.   Booker,      543    U.S.   220     (2005);

contesting the court’s decision to deny him an adjustment for

acceptance of responsibility, U.S. Sentencing Guidelines Manual

§ 3E1.1 (2006), and a reduction under the safety valve provisions

in USSG § 2D1.1(b)(9) and § 5C1.2; and arguing that the sentence is

unreasonable     because      the   district     court      refused    to    impose   a

sentence    below       the   guideline     range      to    correct    an     alleged

unwarranted disparity between Morales’ sentence and the sentences

received    by    his    co-defendants      and     other      similarly      situated

defendants.      We affirm.

            On February 22, 2006, state and federal law enforcement

officers   executed       a   search   warrant    at    the    home    of    Stephanie

Fitzgerald.      They found 134.08 grams of crack, $9765, scales, and

packaging materials. Fitzgerald decided to cooperate and called

Michael Fisher, who agreed to bring more methamphetamine to her

house.    Fisher and Morales arrived shortly afterward.                     Fisher was

carrying a bag that contained 364.39 grams of methamphetamine; he

had another 110.92 grams of methamphetamine in his pocket.                      He was


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also carrying a pistol and ammunition.              Morales was carrying $927

in currency and a small quantity of methamphetamine.                     Morales’

wife, Jennifer Fisher Morales (Michael Fisher’s sister), was later

arrested.   Morales told investigators that he bought small amounts

of methamphetamine for himself and his wife, but denied selling

methamphetamine. However, Fitzgerald, Michael Fisher, and Jennifer

Fisher Morales all implicated Jose Morales in the conspiracy.                    In

particular, Michael Fisher said that he delivered four ounces of

methamphetamine to Fitzgerald from Jose and Jennifer Morales on ten

occasions, a total of 1134 grams of methamphetamine.

            In    the     presentence     report,    the    probation     officer

recommended      that    Morales   was    responsible      for   more   than    1.5

kilograms of methamphetamine.             This amount included the 609.39

grams of methamphetamine seized at Fitzgerald’s house on February

22, 2006; another 252.60 grams of methamphetamine which was the

equivalent of the $10,692 seized from Fitzgerald and Michael

Fisher; and the 1134 grams of methamphetamine that Michael Fisher

said he delivered to Fitzgerald between November 2005 and February

2006. The probation officer recommended a base offense level of 34

(500   grams     to     1.5   kilograms   of   methamphetamine),        see    USSG

§ 2D1.1(c)(3)), but did not recommend an adjustment for acceptance

of responsibility.

            Morales objected to the drug quantity on constitutional

grounds and claimed that the evidence of a higher drug quantity was


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based on unreliable statements from his co-defendants.               He also

asserted that he should receive an adjustment for acceptance of

responsibility based on his guilty plea.             He maintained that his

statement to the probation officer in which he admitted obtaining

methamphetamine    for   his   personal    use   satisfied    the   “truthful

proffer” requirement for a safety valve reduction.            See 18 U.S.C.

§ 3553(f) (2000); USSG § 5C1.2(a)(5).*        Finally, he argued that his

sentence should not be longer than the sentences of his co-

defendants and other similarly situated defendants in the same

district.

            At sentencing, after hearing testimony from the federal

case agent and from Michael Fisher, the district court concluded

that Fisher was a credible witness and determined that the quantity

involved    in    the    conspiracy       exceeded     1.5   kilograms    of

methamphetamine, enough to justify a base offense level of 34. The

court decided that Morales had not accepted responsibility because

he had minimized his role in the conspiracy.                 The court also

determined that Morales was not eligible for the safety valve

reduction because any admissions he had made to the probation

officer did not qualify as information provided to the government

and because Morales’ admissions to the probation officer minimized



     *
      The fifth criteria for a safety valve reduction is that the
defendant, by the time of sentencing, have “truthfully provided to
the Government all information and evidence [he] has concerning the
offense . . . .” 18 U.S.C. § 3553(f)(5); USSG § 5C1.2(a)(5).

                                  - 4 -
his participation in the conspiracy. The court held that there was

no constitutional violation because the guidelines were applied as

advisory.

            Morales’ attorney then requested a downward departure,

arguing that a sentence greater than those received for the same

crime by his co-defendants, and other defendants in the same

district, would violate Booker by creating unwarranted disparity.

The request in fact constituted a request for a variance sentence

pursuant to 18 U.S.C. § 3553(a)(6) (2000).       The district court

declined to impose a sentence below the guideline range, stating

that –

     [T]he Court sees this defendant’s role in this offense as
     substantial, as being one of the actual suppliers within
     this conspiracy; that [and] his lack of acceptance of
     responsibility in this matter are factors that I think
     are important for me to take into account.         I have
     factored them in and I have considered all of the factors
     under [18 U.S.C.A. §] 3553(a) [(West 2000 & Supp. 2007)]
     in arriving at the decision [to impose a sentence of 151
     months].

            Morales’ first allegation of error under Apprendi v. New

Jersey, 430 U.S. 566 (2000), and Booker is without merit.     After

Booker, the sentencing court must still calculate the appropriate

advisory guideline range by making any necessary factual findings.

United States v. Battle, 499 F.3d 315, 322 (4th Cir. 2007),

petition for cert. filed, ___ U.S.L.W. ___, (U.S. Oct. 4, 2007)

(No. 07-6945); United States v. Moreland, 437 F.3d 424, 432 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006).    The court must then


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consider the resulting advisory guideline range in conjunction with

the factors set out in § 3553(a) and determine an appropriate

sentence.       United States v. Davenport, 445 F.3d 366, 370 (4th Cir.

2006).    We will affirm a post-Booker sentence if it “is within the

statutorily prescribed range and is reasonable,”                id. at 433

(internal quotation marks and citation omitted), and “a sentence

within    the    proper   advisory   Guidelines   range   is   presumptively

reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.

2006); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007)

(upholding application of rebuttable presumption of reasonableness

to within-guidelines sentence).         Consequently, Morales’ sentence

did not constitute a violation of the Sixth Amendment or an

erroneous upward variance, as he contends. See Battle, 499 F.3d at

322.

            Morales claims that the district court’s factual finding

concerning the quantity of methamphetamine was erroneous because

the court relied on Michael Fisher’s testimony. However, under the

advisory guideline system, the district court continues to make

factual findings about sentencing factors by a preponderance of the

evidence, and its findings are reviewed for clear error.             Battle,

499 F.3d at 322-23.       The court found Fisher’s testimony credible.

The district court’s credibility findings are not reviewable on

appeal.     See United States v. Locklear, 829 F.2d 1314, 1317 (4th

Cir. 1987) (“Absent compelling evidence to the contrary, this court


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declines to overturn a factual determination founded on witness

demeanor and credibility.”).        In addition, Fisher’s testimony was

corroborated by Fitzgerald’s statement.             Therefore, the district

court did not clearly err in finding that Morales was responsible

for more than 1.5 kilograms of methamphetamine based in part on

Fisher’s testimony.

            Next, we find no clear error in the district court’s

decision    to   deny    Morales    an     adjustment     for   acceptance    of

responsibility.      To receive the adjustment, a defendant must

demonstrate “by a preponderance of the evidence that he has clearly

recognized and affirmatively accepted personal responsibility for

his criminal conduct.”         United States v. May, 359 F.3d 683, 693

(4th Cir. 2004) (quoting United States v. Nale, 101 F.3d 1000, 1005

(4th Cir. 1996)).       A guilty plea alone is insufficient to entitle

a defendant to the adjustment.           May, 359 F.3d at 693; USSG § 3E1.1,

comment. (n.3) (a guilty plea is significant evidence of acceptance

of responsibility, but is not dispositive).               The district court’s

determination that a defendant has accepted responsibility is

reviewed for clear error.        United States v. Dugger, 485 F.3d 236,

239 (4th Cir. 2007).

            Morales argues that he made an early decision to plead

guilty with or without a plea agreement, which should have entitled

him   to   the   adjustment.       He    asserts   that    he   made   “truthful

admissions” in connection with his plea. However, he admitted only


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that he bought small amounts of methamphetamine for personal use

and denied selling methamphetamine in any quantity.            His position

at sentencing was thus at odds with the factual basis underlying

his guilty plea, to which he assented.          The court determined that

Morales had minimized his participation in the conspiracy in a

manner    which    precluded      an     adjustment    for   acceptance    of

responsibility.       The court’s finding was not clearly erroneous.

            With respect to the safety valve reduction, the district

court must determine whether the defendant has satisfied the five

criteria set out in § 5C1.2.            United States v. Ivester, 75 F.3d

182, 185 (4th Cir. 1996).        The defendant has the burden of showing

that he has met all five requirements, United States v. Wilson, 114

F.3d 429, 432 (4th Cir. 1997), and also has the burden of acting

affirmatively to satisfy the fifth criteria, that is, “to ensure

that the Government is truthfully provided with all information and

evidence [he has] concerning the relevant crimes.”              Ivester, 75

F.3d at 185.      Disclosures made to the probation officer do not

satisfy this requirement. United States v. Wood, 378 F.3d 342, 353

(4th Cir. 2004).         The district court’s factual finding as to

whether the defendant has made the necessary showing as to each

requirement is reviewed for clear error.          Wilson, 114 F.3d at 432.

            Here, the district court found that Morales’ statements

to the probation officer were not sufficient, and in any case, in

those    statements    Morales    minimized    his    participation   in   the


                                       - 8 -
offense.      Therefore, the court determined in effect that Morales

had made no attempt to provide to the government all information he

possessed about the offense, which made him ineligible for the

safety valve reduction.           We conclude that the district court’s

factual finding was not clearly erroneous.

            Last, Morales argues that the court failed to avoid an

unreasonable     sentence     disparity       between    his   sentence   and     the

sentences of his co-defendants, all of whom received sentences of

100 months or less, and the eighty-seven-month sentences given in

early 2007 by a different judge in the same division to three other

federal defendants guilty of methamphetamine conspiracy.

            One of the factors the sentencing court must consider is

“the   need     to   avoid    unwarranted       sentence       disparities   among

defendants with similar records who have been found guilty of

similar conduct . . . .”          18 U.S.C. § 3553(a)(6).           However, “the

kind   of   disparity      with   which   §    3553(a)    is    concerned    is   an

unjustified difference across judges (or districts) rather than

among defendants to a single case.”              United States v. Pyles, 482

F.3d 282, 290 (4th Cir. 2007) (internal quotation and citation

omitted), petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 23,

2007) (No. 07-5497);         see also United States v. Clark, 434 F.3d

684, 687 (4th Cir. 2006) (same).

            However, under Pyles and Clark, Morales’ co-defendants’

sentences     are    not   relevant   to      the   question      of   unwarranted


                                      - 9 -
disparity.      With respect to the sentences of other defendants in

the Harrisonburg area, Morales made no showing that their lower

sentences were due to anything other than the proper application of

the guidelines.        In his reply brief, Morales claims that he was

unable   to    prove   unwarranted    disparity   based   on   a   pattern   of

discrimination against Hispanic defendants because the records for

the defendants whose judgments he submitted are sealed, and he

asserts that the district court should have investigated the sealed

records of these defendants and others to determine the proper

sentence in his case.       Whatever the practical difficulties may be

in proving unwarranted disparity, Morales did not show that the

differences in the sentences were grounds for a variance.

              We therefore affirm the sentence imposed by the district

court.   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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