                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4807


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ANTONIO TEJADA-MARTINEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-01068-HMH-2)


Submitted:   March 30, 2012                 Decided:   April 10, 2012


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. Andrew Burke Moorman, OFFICE OF THE
UNITED   STATES ATTORNEY,  Greenville,  South  Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Antonio    Tejada-Martinez          pled       guilty,       pursuant     to   a

plea agreement, to conspiracy to possess fifty grams or more of

methamphetamine         with    intent     to     distribute,         21     U.S.C.     § 846

(2006)     (Count        One).            The     district           court        calculated

Tejada-Martinez’s        advisory       Guidelines       range        as    87-108     months

under the U.S. Sentencing Guidelines Manual (2009), but imposed

the mandatory minimum sentence of ten years’ imprisonment, which

became   the    Guidelines        range.         See    USSG     § 5G1.1(c)(2).              On

appeal, Tejada-Martinez’s attorney has filed a brief pursuant to

Anders   v.    California,        386     U.S.    738    (1967),       suggesting        that

Tejada-Martinez’s waiver of appeal rights in his plea agreement

was not valid and that the district court erred in deciding that

he did not qualify for a sentence below the mandatory minimum

under    the    safety     valve     provision          in    USSG     § 5C1.2(a)(1-5).

Tejada-Martinez     was        notified    of    his    right     to       file   a   pro    se

supplemental brief, but has not filed a                      brief.

              We first note that Tejada-Martinez’s notice of appeal

was untimely and that the district court denied an extension of

time to file based on excusable neglect.                          In criminal cases,

appeals periods are not jurisdictional, but are court-prescribed

“claim-processing         rules”     that        do    not     affect       this      court’s

subject-matter jurisdiction.               See Rice v. Rivera, 617 F.3d 802,

810 (4th Cir. 2010) (stating that non-statutory claim-processing

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rules are not jurisdictional); United States v. Urutyan, 564

F.3d 679, 685 (4th Cir. 2009) (“[T]h non-statutory time limits

in     Appellate        Rule     4(b)       do        not     affect       subject       matter

jurisdiction.”).          The appeal period may still be enforced by

this    court    when     the    Rule       4(b)      time    bar     is   invoked      by    the

government        or     sua      sponte             when    judicial        resources         or

administration are implicated or the delay in noting the appeal

has been inordinate.             United States v. Mitchell, 518 F.3d 740,

744,     750    (10th     Cir.       2008).           However,      in     this    case,      the

government has not invoked the Rule 4(b) time bar or moved to

dismiss the appeal as untimely.                       Moreover, the filing delay of

fifty-two       days    was    not    inordinate,           and   consideration         of    the

merits     of     the     case       will     not       waste       judicial       resources.

Therefore, we conclude that dismissal of the appeal based on the

untimely notice of appeal is not appropriate.

               Next, we note that, in his plea agreement, Tejada-

Martinez waived the right to appeal his conviction and sentence.

A defendant may waive the right to appeal if the waiver is

knowing and intelligent.               United States v. Poindexter, 492 F.3d

263,   270     (4th     Cir.    2007).        However,        the     government        has   not

chosen to enforce the waiver, and it is our policy not to raise

this issue sua sponte.               Therefore, we need not consider whether

the    waiver    is     dispositive      of      this       appeal.        See    id.   at    271

(stating that, if an Anders brief is filed in a case with an

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appellate waiver, the government’s failure to respond “allow[s]

this    court      to    perform            the     required     Anders        review”).

Accordingly, we conclude that our review is not limited by the

appeal waiver.

            With    respect       to    the        safety   valve     provision,      the

district    court       had      before       it     reliable     information        that

Tejada-Martinez was not entirely truthful on two occasions when

he was interviewed by the government and thus did not meet the

fifth   requirement        for     eligibility         under     § 5C1.2(a).         The

defendant   has    the     burden      of    showing    that    he   meets     all   five

criteria for application of the safety valve provision.                          United

States v. Henry, ___ F.3d ___, 2012 WL 745536, at *7 (4th Cir.

Mar. 8, 2012); United States v. Aidoo, ___ F.3d ___, 2012 WL

641026, at *3 (4th Cir. Feb. 29, 2012).                        The district court’s

determination concerning eligibility for safety valve relief is

reviewed    for    clear      error.          Henry,    2012    WL    745536    at   *6.

Tejada-Martinez failed to show that he truthfully provided the

government with all information he had concerning the offense

and related conduct.             See USSG § 5C1.2(a)(5); Aidoo, 2012 WL

641026 at *8 (extent of disclosure required).                        We are satisfied

that the district court did not clearly err in so finding, and

in deciding that he did not qualify for a sentence below the

mandatory minimum pursuant to the safety valve provision.



                                              4
            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We    therefore      affirm    the   district     court’s   judgment.

This 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.                     Finally, 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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