UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4355

BILLY DEAN WHITE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-97-90)

Submitted: March 23, 1999

Decided: April 6, 1999

Before MURNAGHAN, HAMILTON, and MICHAEL,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles Nealson Dorsey, TRIAL LAWYERS, P.C., Roanoke, Vir-
ginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Karen B. Peters, Assistant United States Attorney, Michael Resch,
Third Year Law Intern, Roanoke, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Billy Dean White appeals the 120-month sentence imposed upon
his guilty plea to manufacture and possess with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) (1994). His attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), addressing whether (1) the district court erred in denying
him the benefits of the "safety valve" provision, see U.S. Sentencing
Guidelines Manual § 5C1.2 (1997); (2) the United States should have
made a motion for downward departure based on substantial assis-
tance, see USSG § 5K1.1 p.s.; (3) the district court erred in holding
him accountable for 1117 marijuana plants; and (4) he was sentenced
under the wrong statutory provision. Counsel asserts that there are no
meritorious grounds for appeal. Although White was informed of his
right to file a pro se supplemental brief, he has not done so. Because
our review of the entire record reveals no reversible error, we affirm.

White first contends that the court erred in not reducing his sen-
tence under the "safety valve" provision of USSG § 5C1.2. The provi-
sion permits a sentence below the mandatory minimum if (1) the
defendant has no more than one criminal history point; (2) he did not
use violence or threats or a firearm; (3) the offense did not result in
death or serious injury; (4) the defendant did not have an aggravating
role; and (5) he has fully cooperated with the government. A defen-
dant has the burden of proving that he qualifies for application of the
safety valve provision. See United States v. Beltran-Ortiz, 91 F.3d
665, 669 (4th Cir. 1996). The district court's determination of
whether the defendant fulfilled the requirements of§ 5C1.2 is a ques-
tion of fact reviewed for clear error. See United States v. Daughtrey,
874 F.2d 213, 217 (4th Cir. 1989). Here, the district court found that
White failed to fully cooperate with the government based on its find-
ing that he had not been truthful about his knowledge of, and respon-
sibility for, the marijuana plants at issue. We find that the factual

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determinations made by the district court are not clearly erroneous.
Consequently, the district court did not err in finding that § 5C1.2 did
not apply.

White next claims that the United States should have made a
motion for a substantial assistance departure. Absent a promise for a
departure motion in a plea agreement, the decision to make such a
motion is within the sole discretion of the government and is not
reviewable unless the government based its decision upon an uncon-
stitutional factor, such as race. See Wade v. United States, 504 U.S.
181, 185-87 (1992). There is no evidence that the government's fail-
ure to move for a departure was based on an unconstitutional motive;
rather, the decision was based on White's failure to provide complete
and reliable information.

White also challenges the number of plants (1117) for which he
was held accountable by the district court. Specifically, White claims
that he should be held accountable only for the 842 plants contained
in the patch in which he was videotaped. We review the district
court's findings of fact at sentencing--including the determination of
the relevant quantity of drugs--for clear error. See United States v.
Uwaeme, 975 F.2d 1016, 1018 (4th Cir. 1992). The district court's
finding was based on the testimony of White's co-defendant that
White had claimed both patches, and on the Task Force Officer's tes-
timony that he had counted the plants in both patches. We find no
clear error in the district court's determination. White also argues that
not all of the plants should have been counted because "there was
some mortality associated with said plants and . . . the number of milk
jugs is not indicative of the number of live plants." However, Con-
gress defines marijuana expansively in 21 U.S.C.A.§ 802(16) (West
Supp. 1998) as "[a]ll parts of the plant Cannabis sativa L., whether
growing or not." Further the Guidelines define a"plant" as "an organ-
ism having leaves and a readily obervable root formation (e.g., a mar-
ihuana cutting having roots, a rootball, or root hairs is a marihuana
plant)." USSG § 2D1.1 (comment), (n.18). Therefore, the district
court did not clearly err in including all of the plants in its calculation.
Finally, White claims that he was sentenced under the wrong statutory
section because the district court, at his guilty plea hearing, stated that
White was charged with possession with intent to distribute marijuana
and that "he was subsequently sentenced for manufacture and posses-

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sion of [sic] intent to distribute marijuana and . . . his penalty was
enhanced due to the inaccurate stating of such statutory offense."
However, the indictment, the presentence report, and the judgment
and commitment order all accurately describe White's offense. In any
event, any error by the district court was harmless because the base
offense level is the same for either offense. See USSG § 2D1.1(c)(8).

In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore deny counsel's
motion for leave to withdraw and affirm White's sentence. This court
requires that counsel inform his client in writing of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may again move in this
court for leave to withdraw from representation. See 4th Cir. Local
Rule 46(d). Counsel's motion must state that a copy thereof was
served on the client. See id. We grant the motion to dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court, and oral argument would not
aid the decisional process.

AFFIRMED

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