                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4427


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BERNY ALONSO NUNEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:12-cr-00328-FDW-1)


Submitted:   November 25, 2014            Decided:   December 19, 2014


Before KING, SHEDD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Berny A. Nunez pled guilty, without the benefit of a

written plea agreement, to conspiracy to distribute and possess

with intent to distribute 50 grams or more of methamphetamine,

in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012). *                  Based on

a total offense level of 33, and a Criminal History category of

I,   Nunez’s    advisory     Guidelines         range   was     135-168    months’

imprisonment.      At     sentencing,     the    district      court    found    that

Nunez qualified for the safety valve provision and lowered his

total offense level to 29, with a resulting advisory Guidelines

range of 87 to 108 months’ imprisonment.                The court imposed an

87-month   sentence,       below   the      statutory         mandatory     minimum

sentence of 120 months.       Nunez noted a timely appeal.

           Nunez’s counsel has filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), stating that there are no

meritorious     grounds    for   appeal     but    questioning         whether   the

district court erred in failing to require the prosecution to

disclose, at Nunez’s guilty plea hearing, that he might qualify

for the safety valve reduction.             Although advised of his right

to file a pro se supplemental brief, Nunez has not done so.


     *
       Counsel’s brief states that Nunez signed a plea agreement
containing a waiver of his right to a direct appeal. The record
discloses, however, that Nunez pled guilty without a plea
agreement.



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             Because Nunez did not move in the district court to

withdraw his guilty plea, the Rule 11 hearing is reviewed for

plain error.         United States v. Martinez, 277 F.3d 517, 525 (4th

Cir. 2002).          To establish plain error, Nunez must demonstrate

that (1) the district court committed an error; (2) the error

was plain; and (3) the error affected his substantial rights.

Henderson v. United States, 133 S. Ct. 1121, 1126 (2013).                                  In

the    guilty     plea    context,       a     defendant       meets      his    burden    of

demonstrating that an error affected his substantial rights by

showing a reasonable probability that he would not have pled

guilty     but    for     the     Rule    11       omission.        United       States    v.

Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).

             We find that Nunez cannot show error, let alone plain

error, in the context of his Rule 11 hearing.                             Counsel argues

that   the    Government’s        attorney         should    have   been        required   to

mention the safety valve possibility during the Rule 11 hearing.

But there is no such requirement under Rule 11, and Nunez has

provided     no   authority        suggesting        otherwise.           In    any   event,

because      Nunez      was     given    the       benefit     of   the    safety      valve

provision at sentencing, any hypothetical error would have been

harmless.

             In accordance with Anders, we have reviewed the record

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

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

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

petition    the    Supreme      Court    of       the    United     States   for   further

review.    If Nunez 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 Nunez.

               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.

                                                                                   AFFIRMED




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