                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4897



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DANIEL VEGA,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Richard D. Bennett, District Judge. (CR-
02-542-RDB)


Submitted:   November 24, 2004            Decided:   January 27, 2005


Before WILKINSON and WILLIAMS, Circuit Judges, and Norman K. MOON,
United States District Judge for the Western District of Virginia,
sitting by designation.


Affirmed by unpublished per curiam opinion.


Michael D. Montemarano, Elkridge, Maryland, for Appellant. Thomas
M. DiBiagio, United States Attorney, James M. Trusty, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Daniel   Vega   was   convicted     by    a   jury   of   conspiring   to

distribute drugs and drug trafficking, in violation of 21 U.S.C.A.

§§ 841 (a)(1) and 846 (West 1999), and sentenced to sixty-months

imprisonment.     On appeal, Vega contends that the district court

erred by (1) refusing to disclose the confidential informant’s

identity, (2) allowing a jury to convict Vega without sufficient

evidence,   (3)   applying   an   upward      adjustment   for   obstructing

justice, and (4) refusing to apply the safety-valve provision.

Because we find no reversible error, we affirm.



                                    I.

     During several telephone calls in November 2002, Jose Mancebo,

a New York resident, attempted to enter into an agreement to sell

and deliver two kilograms of cocaine to a Maryland resident.1

Unbeknownst to Mancebo, the Maryland resident with whom he was

negotiating was working as a confidential informant (“the C.I.”),

and law enforcement officers (“the Officers”) were recording the

telephone conversations and orchestrating a buy-bust operation.2


     1
      Eventually the drug amount was lowered to one kilogram.
     2
      A buy-bust operation is “where a quantity of a controlled
substance is ordered from a source of supply or a seller to bring
to a certain location for a buyer. . . . Normally an informant or
an undercover agent . . . make[s] a purchase. . . and then an
arrest team move[s] in.” (Trans. of Mot. Hr’g July 8, 2003 at 13.)
Two teams of officers orchestrated maintaining verbal contact with
the C.I. via cellular telephones, as well as visual contact.

                                    2
On   November    21,   2002,   Mancebo   and   the   C.I.   finalized   their

agreement.      Because Mancebo did not have a valid driver’s license,

he enlisted Vega, an acquaintance of two years, to drive him from

New York to Maryland to deliver the cocaine.3

      Near midnight on November 22, 2002, Vega and Mancebo arrived

in Maryland and picked up the C.I. in Oxon Hill, Maryland.               Vega

and Mancebo then switched seats, so that Mancebo was driving and

Vega was in the passenger seat.           The C.I., who was in the back

seat, directed Mancebo to drive to a nearby diner, where the

Officers were waiting, to complete the cocaine sale.               While in

route to the diner, the Officers received a verbal signal from the

C.I. that he had observed cocaine.         The Officers had selected the

diner as the location for the buy-bust operation because the

parking lot of the diner was well-lit and easily accessible.             When

the three men arrived at the diner, the C.I. exited the car and

entered the diner, thus visually signaling that the cocaine was in

the car.   When the Officers approached the parked car, they found

a 960 gram brick of cocaine at Vega’s feet.

      The Government indicted Vega and Mancebo for conspiracy to

distribute and possession with intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1) and 846.4


      3
      The trip from New York to Maryland takes approximately four
hours.
      4
      Mancebo pleaded guilty to both counts on March 11, 2003 and
was sentenced to forty-six months imprisonment.

                                     3
While preparing his defense, Vega sought to obtain the C.I.’s

identity from the Government, but the district court denied the

motion after conducting an in camera review of the DEA-6's and the

grand jury testimony of the Officers regarding the arrest of

Mancebo and Vega and finding that neither contained any information

material and favorable to Vega.    Prior to trial, Vega also moved to

suppress his post-arrest statements. At the suppression hearing,

Vega testified that he waived his Miranda rights during his post-

arrest interview, that he had an eleventh grade education, that he

worked as a taxi driver and dispatcher, and that he is basically

bilingual. The district court found that Vega, a native Spanish

speaker,   “showed   no   difficulty       in   an   ability”   to   respond   to

questions, to read road signs, to read exhibits presented in court,

or to speak with the Officers using simple words. (Trans. of Mot.

Hr’g July 8, 2003 at 44-45.) The district court denied Vega’s

motion, and Vega has not pursued that ruling on appeal.

     At trial, the Officers testified that, prior to November 22,

the C.I. had dealt only with Mancebo, and that as of that date,

neither the C.I. nor the Officers were aware of Vega’s existence or

role in the drug sale. They also testified that Vega stated he did

not know the buyer of the cocaine or its origin. The Officers

further testified that, during Vega’s post-arrest interview, Vega

waived his Miranda rights and confessed to driving Mancebo to

Maryland for the drug sale in exchange for being paid one thousand


                                       4
dollars. The prosecution also provided evidence that Vega was aware

of the purpose of Mancebo’s trip and corroborated Vega’s story by

introducing    evidence    of    Mancebo’s          expired    driver’s       license,

containing    Mancebo’s    photograph,            but   a   fictitious    name.    The

Officers testified that Vega did not express any difficulty in

understanding and responding to their questions.

     Vega    attempted    to    rebut    the        prosecution’s       evidence   by

testifying that, because Vega’s native language is Spanish and the

Officers did not provide Vega with a Spanish interpreter during his

post-arrest interview, the Officers misinterpreted his statements

as a confession.   Vega explained that although he did not know the

reason for the trip, he agreed to drive Mancebo to Maryland because

he needed to earn some money.       Vega further testified that he first

learned of the drug deal when, just before his arrest, the C.I.

threw the cocaine into the front seat of the vehicle and it landed

under his feet.

     The jury, discrediting Vega’s testimony, found Vega guilty of

both charges. The district court sentenced Vega to sixty-months

concurrent imprisonment on each count, four years of supervised

release, and a $200 special assessment. In reaching that sentence,

the district court decreased the offense level based on Vega’s

minimal participation, applied an upward adjustment for obstruction

of justice based on Vega’s perjury, and refused to apply the

safety-valve   provision       because       of    Vega’s    perjury.    We   possess


                                         5
jurisdiction over Vega’s appeal under 28 U.S.C.A. § 1291 (West

1999), and now affirm.



                                      II.

       Vega’s first contention is that the district court should have

ordered the Government to disclose the C.I.’s identity because the

C.I.   could   have   testified     to       Vega’s    lack     of    knowledge      and

participation in the drug transaction. We review the district

court’s decision to preserve a confidential informant’s identity

for abuse of discretion. United States v. D’Anjou, 16 F.3d 604, 609

(4th Cir. 1994).

       In   determining   whether    to       disclose        the    identity   of    a

confidential    informant,   the     Supreme          Court    has    called    for   a

“balancing [of] the public interest in protecting the flow of

information against the individual’s right to prepare his defense”

and “that no fixed rule with respect to disclosure is justifiable.”

Roviaro v. United States, 353 U.S. 53, 62-63 (1957).                     In applying

this balancing test, a court should consider “the crime charged,

the possible defenses, [and] the possible significance of the

informant’s testimony.” Id.         Following Roviaro, we have held that

the informant’s role in the specific investigation is one factor

under the balancing test and “when the informant is an active

participant in the transactions at issue instead of just a mere

tipster, the failure to require disclosure of the informant’s


                                         6
identity is more likely to amount to error.”                   United States v.

Blevins, 960 F.2d 1252, 1259 (4th Cir. 1992)(citing United States

v. Price, 783 F.2d 1132, 1138-39 (4th Cir. 1986)).

      In its Roviaro balancing, the district court found that the

disclosure of the C.I.’s identity could not aid Vega’s defense

because the C.I. never actually dealt with Vega and thus would not

have any favorable information to disclose. In Vega’s pre- and

post-trial      motions,   he    did    not     characterize   the   C.I.    as    a

“participant;” on appeal, however, Vega argues that the C.I. acted

as a participant in             the buy-bust and that under Price the

identities of participants must be disclosed.

      Even if we assume the district court abused its discretion in

failing to reveal the identity of the participating C.I., the error

would be harmless. On appeal, “[a]ny error, defect, irregularity,

or   variance    that   does    not    affect    substantial    rights   must     be

disregarded.” Fed. R. Crim. P. 52(a). Vega’s defense to the crimes

charged was his recantation of his post-arrest statements.                  Due to

the C.I.’s brief interaction with Vega, the C.I. could have only

testified to Vega’s actions and statements while in the car with

Vega and Mancebo.

      Prior to trial, the district court carefully conducted an in

camera review of the redacted portions of the Officers’ grand jury

testimonies and the DEA-6's and concluded that the reports were

thorough and the redactions did not contain any material relevant


                                         7
to Vega’s defense.       Post-trial, the district court reassessed the

redactions, again concluding the information was not favorable or

material to Vega.      The district court found that the jury rendered

its verdict with full knowledge of Vega’s tangential involvement in

the buy-bust and that Vega interacted with the C.I. only during the

brief period when both were in the vehicle.                 In addition, nothing

in the record before us shows that Vega made an effort to call

either Mancebo or additional law enforcement personnel involved in

the   buy-bust,    who   were   fully       aware    of    Vega’s   role    in   the

transaction, to testify. Vega’s ability to call Mancebo and cross-

examine the testifying Officers regarding the dispute over who

possessed the cocaine, vitiated Vega’s need to know the identity of

the C.I.   See Blevins, 960 F.2d at 1258 (noting failure to disclose

is more likely to be error when C.I. is the only person with first-

hand knowledge of the crime).           Moreover, the Officers, who were

positioned to observe the drug transaction, did not see the C.I.

throw any object such as cocaine into the front seat of the car.

Given the minimal interaction between the C.I. and Vega, the

availability      of   alternate   sources          of    information,     and   the

contradiction     of   Vega’s   factual      contentions      by    the   Officers’

testimonies5, we do not believe that there is any possibility that

disclosure of the C.I.’s identity could                    have affected Vega’s


      5
      Our finding here that the evidence of Vega’s guilt was
overwhelming necessarily rejects Vega’s contention that there was
insufficient evidence to convict.

                                        8
substantial rights. Accordingly, any error in the district court’s

refusal to order the disclosure of the C.I.’s identity was harmless

beyond a reasonable doubt.   See United States v. Mackins, 315 F.3d

399, 405 (4th Cir. 2003) (“[W]e must reverse unless we find . . .

constitutional error harmless beyond a reasonable doubt”).

     In summary, we need not decide whether the district court

abused its discretion because by viewing the evidence of guilt and

role in the offense in its entirety, the failure to disclose the

identity of the confidential informant to Vega could be no more

than harmless error.   See Delaware v. Van Arsdall, 475 U.S. 673,

681 (1986) (finding that “an otherwise valid conviction should not

be set aside if the reviewing court may confidently say, on the

whole record, that the constitutional error was harmless beyond a

reasonable doubt”).



                                III.

         Finally, Vega contends that the district court erred by

applying an upward adjustment for obstructing justice and by

refusing to apply the safety valve exception to his sentence.   We

review the application of the obstruction of justice enhancement

and the safety-valve provision for clear error. United States v.

Wilson, 114 F.3d 429, 432 (4th Cir. 1997).

     The prosecution sought to enhance Vega’s sentence under United

States Sentencing Guidelines Manual § 3C1.1 (2003), because he


                                 9
obstructed justice by willfully perjuring himself.              During Vega’s

post-arrest interview with law enforcement, he stated that he drove

Mancebo to Maryland for the drug transaction in exchange for a fee.

At trial, however, Vega testified that Mancebo did not inform him

of the reason for the trip to Maryland, and that the C.I. possessed

the   cocaine    prior    to    the   arrest.    These   statements    directly

contradict the statements Vega made to law enforcement during the

post-arrest interview.

      “[I]f a defendant objects to a sentence enhancement resulting

from her trial testimony, a district court must review the evidence

and make independent findings necessary to establish a willful

impediment      to   or   obstruction    of     justice.”   United    States   v.

Dunnigan, 507 U.S. 87, 95 (1993). The three elements of perjury are

“(1) false testimony (2) concerning a material matter (3) given

with the willful intent to deceive (rather than as a result of,

say, confusion, mistake, or faulty memory).” United States v.

Smith, 62 F.3d 641, 646 (4th Cir. 1995).

      The district court found that Vega’s trial testimony met the

elements of perjury.           Specifically, it found

      [f]irst, that the defendant took an oath to testify truthfully
      before this Court and the Court finds clearly he did take such
      an oath. Second, that he made false statements as to matters
      about which the defendant testified under oath . . . . Third,
      that the matters as to which he is charged, the defendant made
      false statements . . . and this Court’s finding that they
      were material. Fourth, that such statements were willfully
      made.



                                        10
(J.A. 306.)     Based on a review of the record and the district

court’s    thorough    examination   of   the    facts,    we   find   that   the

district court correctly interpreted the               obstruction of justice

provision and that the application of the two-level adjustment for

obstruction of justice was not clearly erroneous.

       Vega also contends he was eligible for the safety valve set

forth at U.S.S.G. § 5C1.2. “The safety valve permits shorter

sentences for a first-time offender who would otherwise face a

mandatory     minimum,    provided   that       he    meets     five   statutory

requirements.” United States v. Fletcher, 74 F.3d 49, 56 (4th Cir.

1996).     Relevant here, the safety valve provision requires the

defendant “not later than the time of the sentencing hearing . . .

[to truthfully provide] the Government all information and evidence

the defendant has concerning the offense.”              U.S.S.G. § 5C1.2. We

have     interpreted   that   provision     to       require    “defendants   to

demonstrate, through affirmative conduct, that they have supplied

truthful information to the Government.” United States v. Ivester,

75 F.3d 182, 185 (4th Cir. 1996)(interpreting identical statutory

provision, 18 U.S.C.A. § 3553 (f)(5)).               Here, the district court

correctly refused to apply the safety valve provision because Vega

did not truthfully testify at court.




                                     11
                                    IV.

      After careful review, we find the district court did not err

in   preserving   the   C.I.’s   identity,   properly   found   sufficient

evidence existed to convict, and correctly applied the sentencing

guidelines. Accordingly, we affirm Vega’s conviction and sentence.

                                                                  AFFIRMED




                                    12
