                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5270



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


SAMUEL DAVIS BYRD,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-05-10)


Submitted:   October 31, 2006             Decided:   December 5, 2006


Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David G. Belser, BELSER & PARKE, P.A., Asheville, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Samuel Davis Byrd pled guilty to possession of 500 grams

of cocaine with intent to distribute, 21 U.S.C. § 841(a) (2000).

Because he had a prior felony drug conviction, Byrd was subject to

an enhanced statutory minimum sentence of ten years.             21 U.S.C.A.

§§ 841(b)(1)(B), 851 (West 1999 & Supp. 2006).              Byrd appeals his

ten-year sentence, contending that the district court clearly erred

in determining that he did not qualify for a sentence below the

mandatory    minimum     under   the    safety   valve    provision.       U.S.

Sentencing Guidelines Manual § 5C1.2 (2005).              We affirm.

            In December 2004, Byrd was stopped by a state trooper on

the interstate in North Carolina for erratic driving.                  Byrd was

driving a car that had been rented two days earlier in Charlotte,

North Carolina, but he told the trooper he had been working in Ohio

for several days. Byrd seemed nervous, but not otherwise impaired,

and his story was inconsistent, so the trooper asked to search his

car.   When Byrd declined to give his consent, the trooper called

for backup and a drug dog alerted twice on the car.             In the trunk

of the car, the trooper discovered four packages of cocaine with a

total weight of 4.03 kilograms.         After his guilty plea in May 2005,

Byrd was interviewed by two federal agents in the presence of his

attorney.     In   the    presentence     report,   the    probation    officer

recommended a base offense level of 30 under USSG § 2D1.1, and a




                                       - 2 -
two-level     reduction   under    §   2D1.1(b)(7),1    noting      that     Byrd

“appear[ed] to meet the criteria set forth in subdivisions (1) -

(5) of § 5C1.2,” the safety valve provision.            With a three-level

adjustment for acceptance of responsibility, the final offense

level was 25.    Byrd was in criminal history category I,2 which gave

him a recommended advisory guideline range of 57-71 months.                  The

probation   officer   noted     that   Byrd   was   subject   to    a   ten-year

mandatory minimum sentence, but could be sentenced below the

mandatary minimum if he met the five criteria for sentencing under

the safety valve provision.

            Neither Byrd nor the government filed objections to the

presentence     report.    At    the   sentencing    hearing,      when    Byrd’s

attorney asked the court to clarify whether Byrd qualified for a

sentence under the safety valve provision, the government asserted

that Byrd did not qualify because he had not given a complete and

truthful statement of all information he had concerning the offense

to comply with the fifth criteria.




     1
      The probation officer cited § 2D1.1(b)(6) because he used the
2004 Guidelines Manual in preparing the presentence report. When
Byrd was sentenced in December 2005, the 2005 Guidelines Manual
applied. See USSG § 1B1.11.
     2
      Byrd did not receive any criminal history points for the 1994
felony drug conviction. The conviction was over ten years old, and
Byrd’s sentence of six months confinement apparently concluded more
than ten years before the instant offense occurred.       See USSG
§ 4A1.2(e).

                                   - 3 -
               The government reminded the court that Byrd’s offense

involved his possession of four kilograms of cocaine in a bag in

the trunk of his car, and that Byrd initially claimed the bag was

not his, although Byrd had the key for the locked bag on his

person.        In his interview with the agents following his guilty

plea, Byrd said he did not know who the cocaine in his trunk came

from or where it was going.

               The government then informed the court that Byrd was

stopped on the interstate near Spartanburg, South Carolina, six

months earlier, in July 2004, for driving too closely to another

car.       Because Byrd and the driver of the other car gave conflicting

accounts of why they were traveling together, Byrd’s car was

searched and a bag containing $22,000 in cash was found in the

trunk of his car.             Byrd denied ownership or knowledge of the

money.3       The government pointed out that Byrd’s conduct in the

instant offense was similar.

               At the court’s request, Matt Barden, one of the Drug

Enforcement       Administration      agents   who    had    interviewed    Byrd,

testified.        He   said    that   Byrd   told   them    he   simply   received

information in a cell phone call about where to pick up the car and

where to drop it off, but that “he had absolutely no idea who it

was that he dropped the car off to, [or] how to get a hold of



       3
      Byrd was not charged with any crime in connection with this
incident.

                                       - 4 -
them.”      Barden said that was not how the dope business was

conducted currently. Barden said he and the other agent thought it

highly unlikely that Byrd would be transporting four kilograms of

cocaine worth about $80,000, but would be unable to provide any

names (even nicknames) or telephone numbers for the people who told

him to pick up the drugs or the people to whom he intended to

deliver the drugs, even though Byrd possessed several cell phones

and pagers when he was arrested.          Barden testified that he did not

believe Byrd had provided all the information he had concerning the

offense.

            The district court made the following findings:

     After considering the evidence presented about the
     circumstances involved in the case, the stop, the amount
     of drugs involved, the common practice in the drug
     business described by the agent, the value of the drugs,
     the circumstances under which the defendant related to
     the officers how the drugs were obtained, the distances
     traveled and so forth, the Court finds that the defendant
     has not, in fact, complied with the limitation or
     applicability of statutory minimum sentences in certain
     cases set out in Section 5C1.2 . . . and as a result
     thereof, the sentence to be imposed is the statutory
     minimum of 120 months.

            To qualify for a reduced sentence under § 5C1.2, a

defendant     must   truthfully    disclose       to   the    government     all

information    and   evidence     he    has    concerning    the   offense    of

conviction and all relevant conduct.            See 18 U.S.C.A. § 3553(f)(5)

(West 2000 & Supp. 2006); USSG § 5C1.2(a)(5).                The defendant is

obliged to reveal “all he knows concerning both his own involvement

and that of any co-conspirators.”              United States v. Ivester, 75

                                       - 5 -
F.3d 182, 184 (4th Cir. 1996).                  Further, the defendant has the

burden   of    showing       that   he    has   affirmatively     acted   to     supply

truthful      information      to    the    government.      Id.    at    185.      The

sentencing court’s decision is a factual finding reviewed for clear

error.   United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997).

              Byrd argues first that the government waived its right to

challenge the applicability of the safety valve provision by

failing to file an objection to the presentence report, which

stated that Byrd appeared to qualify for a sentence under § 5C1.2.

Rule 32(f)(1) of the Federal Rules of Criminal Procedure provides

that, “[w]ithin 14 days after receiving the presentence report, the

parties must state in writing any objections, including objections

to material information, sentencing guideline ranges, and policy

statements, contained in or omitted from the report.”4                         Because

Byrd did not raise this issue at sentencing, our review is for

plain error.        United States v. Olano, 507 U.S. 725, 732-37 (1993)

(unpreserved error may be corrected only if error occurred, that

was plain, and that affects substantial rights, and if failure to

correct error would seriously affect the fairness, integrity, or

public reputation of judicial proceedings).

              The    sentencing      court’s       consideration    of    sentencing

enhancements        raised    by    the    government   in   an    untimely      manner



     4
      This requirement was added in a 1995 amendment to Rule 32.
See United States v. Morsley, 64 F.3d 907, 914 n.4 (4th Cir. 1995).

                                           - 6 -
violates Rule 32.       United States v. Soto-Beniquez, 356 F.3d 1, 52

(1st Cir. 2003).        The error may be cured if the court grants a

continuance to allow the defendant to respond to the government’s

late objection.        Id.; see also United States v. Young, 140 F.3d

453, 457 (2d Cir. 1998) (finding no error where government asserted

error   four    days    before    sentencing,       district    court   directed

preparation     of   revised     presentence      report,   and   parties     were

afforded fourteen days to object to revised presentence report);

United States v. Ellis, 975 F.2d 1061, 1066 (4th Cir. 1992)

(similar local rule was substantially complied with where defense

counsel had notice of government’s objections before sentencing).

If the error is not preserved, it may not meet the test for plain

error if the basis for the enhancement is so obvious that the

sentencing cannot be deemed a miscarriage of justice.                        Soto-

Beniquez, 356 F.3d at 53 (holding that government’s late argument

for   firearm   enhancement       was    no     surprise   in   light   of   trial

testimony).

           The government asserts that it did not object to the

presentence report because the probation officer “stated only that

Defendant ‘may’ be entitled to such relief [under the safety

valve], leaving the final determination to the court.”                       Thus,

“[t]here was no finding to which the Government needed to object

. . . .”   In taking this position, the government ignores the fact

that it did not agree with the probation officer’s recommendation


                                        - 7 -
that Byrd receive a two-level reduction under § 2D1.1(b)(6) because

he appeared to meet the requirements set out in § 5C1.2.5

          However, at sentencing Byrd did not ask for a continuance

so that he could prepare a response or schedule another interview

with the agents.   Moreover, in this appeal, he does not claim that

he was denied the opportunity to provide additional information

that would have made him eligible for a sentence under the safety

valve provision.    He argues only that the government waived its

objection by not making it in a timely manner and that the district

court erred in considering the issue at sentencing.      Therefore,

while the district court’s consideration of the issue violated Rule

32, and the error is plain, we conclude that it did not violate

Byrd’s substantial rights.

          Byrd next contends that the court’s findings were vague

and conclusory.    Rule 32(i)(3)(B) requires only that the district

court rule on any disputed matter and append a copy of its

determination to the presentence report.   The court complied with

the rule and, taken in context, considering the government’s

argument and the agent’s testimony, the court’s findings were

adequate to explain its reasoning.

          Principally, Byrd argues that the court’s finding was

clearly erroneous because the government did not prove that he had


     5
      In addition, had the government alerted Byrd to its position
before the sentencing hearing, Byrd would have had an opportunity
to reconsider the statement he made to the agents.

                                - 8 -
failed to disclose specific information he possessed, but rather

relied on the agent’s hunch that Byrd knew more than he disclosed.

The     district    court    may     base     its   decision    concerning      the

truthfulness of information provided by a defendant on an agent’s

testimony and “its own credibility assessments.” See United States

v. O’Dell, 204 F.3d 829, 838 (8th Cir. 2000).                  The safety valve

benefit may be denied if the district court determines that the

defendant is not credible, see United States v. Montes, 381 F.3d

631, 636-37 (7th Cir. 2004), or if the defendant refuses to

disclose the source of drugs in his possession.                United States v.

Gambino, 106 F.3d 1105, 1111-12 (2d Cir. 1997).

               In this case, the district court heard evidence that, six

months earlier, Byrd denied any knowledge of $22,000 in cash found

in the trunk of his car.           Upon his arrest for possession of four

kilograms of cocaine discovered in the trunk of his car, he first

claimed that the locked bag containing the drugs was not his,

despite having the key to the bag on his key chain.                    The court

found    not    credible    Byrd’s    later    claim   that    he   knew   he   was

transporting drugs, but did not know anyone else involved, and had

no idea how to contact anyone else involved.             We are satisfied that

the court’s determination was not clearly erroneous.

               We therefore affirm the sentence imposed by the district

court.    We dispense with oral argument because the facts and legal




                                       - 9 -
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




                             - 10 -
