                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4565



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL MCRAE, a/k/a Clyde McRae,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00295-3)


Submitted:   December 22, 2006            Decided:   January 17, 2007


Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Charles Jones, Charlotte, North Carolina, for Appellant.
Kimlani Murray Ford, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Michael McRae pled guilty pursuant to a plea agreement to

one count of conspiracy to possess with intent to distribute

cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846 (2000).

Because McRae was previously convicted of two felony drug offenses,

the Government filed an information to seek enhanced penalties in

accordance with 21 U.S.C. § 851 (2000).    In compliance with the

statutory mandatory minimum, the district court sentenced McRae to

life in prison.   See 21 U.S.C. § 841(b)(1)(A) (2000).

          Counsel for McRae has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), alleging McRae’s sentence was

unduly harsh. McRae filed a pro se supplemental brief claiming the

Government should have moved for a downward departure of the

mandatory minimum sentence, but refused to do so.   We affirm.

          After a review of the record, we conclude the life

sentence imposed upon McRae was required by statute.     Pursuant to

21 U.S.C. § 841(b)(1)(A), any person convicted of conspiracy to

distribute the amount of cocaine base to which McRae pled guilty,

and who has “two or more prior convictions for a felony drug

offense,” must receive a “mandatory term of life imprisonment

without release.”   21 U.S.C. § 841(b)(1)(A).    While a district

court may depart below the sentencing range established by the

Sentencing Guidelines, such a departure may result in a sentence

below the minimum term specified in the offense of conviction only


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if   permitted       by   law.        18    U.S.C.   §   3553(e)    (2000)    (limiting

authority of district court to depart below statutory minimum to

cases in which the government has moved for such a departure on the

basis of substantial assistance); United States v. Patterson, 38

F.3d 139, 146 n.8 (4th Cir. 1994) (observing that “[t]he district

court could have sentenced below the statutory minimum only if this

departure     was     based      on   the    Government's     motion   for     downward

departure due to Defendant's substantial assistance”); cf. 18

U.S.C.    §    3553(f)     (2000)          (safety   valve    provision)     (limiting

applicability of statutory minimum penalties for certain drug

offenses      when    specified        criteria      are    met);   U.S.     Sentencing

Guidelines Manual § 5C1.2 (2005) (same).

              In this case, there was no permissible basis for the

district court to depart from the mandatory life sentence.                          The

Government exercised the discretion reserved to it in the plea

agreement and refused to make a substantial assistance motion

because McRae refused to fully cooperate and violated the terms of

his pretrial release by using drugs.                     Moreover, the safety valve

provision did not apply because McRae had too many criminal history

points.    See 18 U.S.C. § 3553(f) (defendant may not have more than

one criminal history point for safety valve provision to apply).

              In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

review. We therefore affirm McRae’s conviction and sentence. This


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court requires that counsel inform his client in writing of his

right to petition 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   move   in   this   court    for   leave   to   withdraw   from

representation.    Counsel's motion must state that a copy thereof

was served on the client.

           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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