                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4663


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EVELIO ARROYO-DUARTE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.     Samuel G. Wilson,
District Judge. (5:06-cr-00050-sgw)


Submitted:   January 22, 2010             Decided:   February 26, 2010


Before NIEMEYER and     MICHAEL,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. Julia C. Dudley,
United States Attorney, Donald R. Wolthuis, Assistant United
States Attorney, Brandon Crook, Third Year Practice Law Student,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Evelio      Arroyo-Duarte           pled      guilty     to       conspiracy    to

distribute and possess with intent to distribute more than fifty

grams   of        methamphetamine          and     a       measurable           quantity     of

amphetamine,        in     violation        of        21      U.S.C.        § 846       (2006),

distribution or possession with intent to distribute more than

fifty   grams       of    amphetamine,        in        violation         of    21     U.S.C.A.

§ 841(a)(1),       (b)(1)(C)        (West     Supp.         2009),        distribution       or

possession with intent to distribute more than fifty grams of

methamphetamine,          in     violation       of      21      U.S.C.A.       § 841(a)(1),

(b)(1)(B)    (West       Supp.    2009),     distribution            or    possession       with

intent to distribute amphetamine, in violation of 21 U.S.C.A.

§ 841(a)(1), (b)(1)(C) (West Supp. 2009), and possession of a

firearm with a removed serial number, in violation of 18 U.S.C.

§ 922(k) (2006).          The district court sentenced Arroyo-Duarte to

135 months= incarceration for the first four counts and 60 months

for the fifth count, all to run concurrently.

             On    appeal,       Arroyo-Duarte          argues       that       the    district

court   erred      by    denying    his     motion         for   a   downward         departure

pursuant     to    18    U.S.C.    § 3553(f)          (2006)      and      U.S.      Sentencing

Guidelines Manual § 5C1.2.1 (2008).                     The Government has moved to

dismiss the appeal on the ground that Arroyo-Duarte knowingly

and   intelligently        waived     his     right         to    appeal        his    sentence

imposed under the Sentencing Guidelines.

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           A defendant may, in a valid plea agreement, waive the

right to appeal.          United States v. Wiggins, 905 F.2d 51, 53 (4th

Cir. 1990).          Any such waiver must be made by a “‘knowing and

intelligent decision to forgo the right to appeal.’”                               United

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)

(quoting United States v. Attar, 38 F.3d 727, 731 (4th Cir.

1994)).   Whether a defendant has effectively waived his right to

appeal is an issue of law this court reviews de novo.                              United

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).

           An    appellate       waiver      is     generally    considered        to    be

knowing   and        voluntary    if     the       district     court     specifically

questioned the defendant concerning the waiver provision during

the Rule 11 colloquy and the record indicates that the defendant

understood    the      full   significance         of   the    waiver    and     was    not

denied effective assistance of counsel.                       See United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).                      Our review of the

record leads us to conclude that Arroyo-Duarte knowingly and

voluntarily      entered      into     the       plea   agreement       and    thus     his

appellate waiver is valid and enforceable.

           The plea agreement provided that Arroyo-Duarte waived

his   right     to    a   jury   trial       and    any   claims    of        ineffective

assistance of counsel known by him and not raised at the time of

sentencing.     Further, the agreement stated:



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      I agree that after my full and fair sentencing
      hearing, I will not then appeal any sentencing
      guidelines factors or the Court’s application of the
      sentencing guidelines factors to the facts of my case.
      I am knowingly and voluntarily waiving any right to
      appeal   sentencing   guidelines    factors,  and   am
      voluntarily willing to rely on the Court in sentencing
      me under the Sentencing Guidelines.

            Arroyo-Duarte argues on appeal that the district court

erred by denying his motion for a downward departure pursuant to

the   safety   valve   provisions     of    18    U.S.C.     § 3553(f)   and   USSG

§ 5C1.2.       Arroyo-Duarte    argues          that   USSG    § 5C1.2   provides

eligibility to a defendant who, among other factors, was not an

“organizer,     leader,    manager,    or    supervisor       of    others”    in   a

criminal offense involving five or more participants, and his

offense     involved   fewer    than       five.        To    the    extent    that

Arroyo-Duarte contests the district court’s application of USSG

§ 5C1.2, his waiver forecloses his argument on appeal.

            To the extent that this argument is a challenge to the

application of a statute and not a Guidelines determination, the

district court did not err in denying the motion for a downward

departure.      The legislative limitation on the applicability of

statutory      mandatory    minimums       in     certain     cases,     generally

referred to as the “safety valve” provision, directs district

courts in limited circumstances to impose a sentence pursuant to

the Sentencing Guidelines regardless of any statutory mandatory

minimum sentence.      See 18 U.S.C. § 3553(f).


                                       4
            This        subsection     can    only      apply      where,        among      other

factors, “the defendant was not an organizer, leader, manager,

or supervisor of others in the offense, as determined under the

sentencing       guidelines      and    was       not    engaged       in    a    continuing

criminal enterprise.”            § 3553(f)(4).               Under this section, the

term    “organizer,        leader,     manager,         or    supervisor         of     others”

includes     any    defendant        who     received         an     adjustment         for     an

aggravated       role    under   USSG      § 3B1.1.          USSG     § 5C1.2,        comment.

(n.5).

            Arroyo-Duarte        did,        in    fact,      receive       an    adjustment

under     USSG     § 3B1.1(c).          Arroyo-Duarte              stipulated         to      this

adjustment in his plea agreement.                  “To qualify for an adjustment

under this section, the defendant must have been the organizer,

leader,     manager,        or    supervisor            of     one     or        more       other

participants.”            USSG   § 3B1.1,         comment.         (n.2).         Therefore,

contrary to Arroyo-Duarte’s argument, a defendant found to be in

charge of simply one other participant is ineligible for the

safety     valve    application.             Because         Arroyo-Duarte         does        not

dispute that he supervised at least one other participant, and

indeed stipulated to an aggravated role adjustment under USSG

§ 3B1.1,    he     does    not   satisfy      the       requirements        of     18      U.S.C.

§ 3553(f).       Accordingly, the district court properly denied its

application.



                                              5
              In his brief, Arroyo-Duarte additionally contends that

the    plea    agreement     did     not       preclude   him    from    requesting

application      of   the   safety    valve      provision,     and   the   district

court erred in requiring him to withdraw his guilty plea in

order to argue for the safety valve application.                        Because the

district      court   correctly      interpreted       the    plea    agreement   as

precluding application of the safety valve, it was not error to

require Arroyo-Duarte to choose between proceeding in conformity

with the terms of the agreement or withdrawing the agreement

entirely.

              Accordingly,     we    grant       the   Government’s      motion   to

dismiss in part as to the claims raised under the Sentencing

Guidelines, and deny the Government’s motion to dismiss in part

and affirm the sentence as to Arroyo-Duarte’s statutory claim.

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 IN PART;
                                                                DISMISSED IN PART




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