                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4383


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DALE LAMONT MCCUTCHEON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00747-RBH-1)


Submitted:   June 10, 2010                    Decided:   July 6, 2010


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


Affirmed by unpublished per curiam opinion.


James A. Brown, LAW OFFICES OF JIM BROWN, P.A., Beaufort, South
Carolina, for Appellant. Arthur Bradley Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Dale       McCutcheon          pleaded      guilty        to   conspiracy      to

distribute and possess with intent to distribute cocaine base,

in violation of 21 U.S.C. § 846 (2006), and possession of a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c) (2006).                       The district court sentenced

McCutcheon to the statutory mandatory minimum term of 180 months

of imprisonment.            His attorney has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), raising one issue but

stating    that   there          are     no   meritorious         issues      for   appeal.

McCutcheon      was     advised        of     his    right      to     file     a   pro    se

supplemental brief, but did not do so.                          Finding no error, we

affirm.

           Counsel questions whether McCutcheon was eligible for

the safety valve provision of 18 U.S.C. § 3553(f) (2006) and

U.S. Sentencing Guidelines Manual (“USSG”) § 5C1.2 (2009).                                 As

McCutcheon did not object to the guidelines calculation in the

district   court,      we       review    this      issue   for      plain    error.      See

United States v. Olano, 507 U.S. 725, 732 (1993).

           To qualify for the safety valve provision, a defendant

must establish the existence of five prerequisites.                            A defendant

may   qualify     for       a    sentence         below     a   statutorily         required

mandatory minimum if: (1) the defendant does not have more than

one   criminal    history         point;      (2)    the    defendant         did   not   use

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violence or possess a firearm in connection with the offense;

(3)   the   offense      did     not     result   in    death     or   serious     bodily

injury; (4) the defendant was not an organizer, leader, manager,

or supervisor of others in the offense; and (5) no later than

the time of sentencing, the defendant truthfully provided the

Government with all evidence the defendant had concerning the

offense.      18    U.S.C.     §    3553(f);        USSG     §   5C1.2.      As   counsel

correctly     concedes,        here      McCutcheon     possessed      a     firearm    in

connection with the conspiracy offense, and therefore he did not

qualify for the safety valve reduction.

             We have examined the entire record in accordance with

the requirements of Anders and have found no meritorious issues

for appeal.       Accordingly, we affirm the judgment of the district

court.      This court requires that counsel inform McCutcheon, in

writing,    of     the   right      to   petition      the   Supreme      Court    of   the

United States for further review.                 If McCutcheon 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 McCutcheon.                          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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