UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                 No. 97-4236
CONSTANTINE ALEXANDER, a/k/a
Constantine Huditean, a/k/a Gus,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-95)

Submitted: September 29, 1998

Decided: October 29, 1998

Before WILLIAMS and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard M. Karceski, LAW OFFICES OF RICHARD M. KAR-
CESKI, Towson, Maryland, for Appellant. Lynne A. Battaglia,
United States Attorney, Gregory Welsh, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Constantine Alexander appeals his sentence imposed after a jury
conviction for conspiracy to possess with intent to distribute cocaine
in violation of 21 U.S.C. § 846 (1994), and distribution of cocaine, in
violation of 21 U.S.C. § 841(a) (1994). He was sentenced to sixty
months imprisonment. For the following reasons, we affirm Alexan-
der's sentence.

At sentencing, the district court noted that Alexander was subject
to a mandatory minimum sentence of sixty months imprisonment
because he was convicted of violating 21 U.S.C.§ 841(a) (1994), and
more than 500 grams of cocaine were involved in his offense. See 21
U.S.C. 841(b)(1)(B) (West 1981 & Supp. 1998). Alexander's guide-
line range was 63 to 78 months based on a base offense level of 26
and a criminal history category of I. Alexander did not object to his
base offense level.

Alexander moved for relief under the "safety valve" provision of
U.S. Sentencing Guidelines Manual § 5C1.2 (1995). He also moved
for a downward departure from his guideline range and/or mandatory
minimum sentence because of his advanced age and infirm physical
condition pursuant to U.S.S.G. §§ 5H1.1, 5H1.4, and he moved for a
decrease in his offense level for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1.

A district court may depart below a statutory minimum sentence
only if the Government requests a departure based on the defendant's
substantial assistance to authorities, see 18 U.S.C.A. § 3553(e)
(1994); U.S.S.G § 5K1.1, comment. (n.1); United States v. Patterson,
38 F.3d 139, 146 n.8 (4th Cir. 1994), or if the court finds that the
defendant meets the criteria set forth in the "safety valve" provision,
see 18 U.S.C.A. § 3553(f) (West Supp. 1998); U.S.S.G. § 5C1.2.

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Because the Government did not move for a downward departure
based upon Alexander's substantial assistance, and because the dis-
trict court determined that the "safety valve" provision did not apply,
the court possessed no authority to impose a sentence below the statu-
torily required mandatory minimum sentence of sixty months.

Although Alexander argues on appeal that he was entitled to a sen-
tence below the statutory minimum under the "safety valve" provision
of U.S.S.G. § 5C1.2, relief under that guideline would not benefit
Alexander. Under U.S.S.G. § 5C1.2, the "safety valve" provision, a
defendant convicted of violating 18 U.S.C. § 846 shall receive "a sen-
tence in accordance with the applicable guidelines without regard to
any statutory minimum sentence," if the defendant meets the criteria
in 18 U.S.C.A. § 3553(f)(1)-(5) (West Supp. 1998). Here, even if
Alexander meets the criteria in 18 U.S.C.A. § 3553(f)(1)-(5), the
relief available, a sentence within his guideline range, would not ben-
efit Alexander because his guideline range is above the applicable
mandatory minimum sentence.

The bottom of Alexander's guideline range would have been lower
than the mandatory minimum sentence if the district court had
adjusted his base offense level for acceptance of responsibility under
U.S.S.G. § 3E1.1. However, the court denied a downward adjustment
on this basis because of Alexander's "continuing insistence of his
absence of guilt with respect to other counts." Given that "the sen-
tencing judge is in a unique position to evaluate a defendant's accep-
tance of responsibility[,] the determination of the sentencing judge is
entitled to great deference on review." U.S.S.G.§ 3E1.1, comment.
(n.5). This court therefore reviews the district court's determination
regarding acceptance of responsibility for clear error. See United
States v. Curtis, 934 F.2d 553, 557 (4th Cir. 1991) (citing United
States v. Harris, 882 F.2d 902, 905 (4th Cir. 1989)).

The acceptance of responsibility adjustment is not intended to
apply to a defendant who puts the government to its burden of proof
at trial, is convicted, and only then admits guilt. See U.S.S.G. § 3E1.1
comment. (n.2). Conviction at trial, however, does not automatically
preclude a defendant from consideration for such a reduction. See id.
Alexander claims his is among the "rare situations," in which he dem-
onstrated an acceptance of responsibility but exercised his right to a

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trial. See id. The record reveals that even at sentencing Alexander
admitted his guilt as to only one of the charged counts, but denied his
guilt with respect to the others. Therefore, we do not find clear error
in the district court's refusal to grant Alexander a downward adjust-
ment for acceptance of responsibility.

We note that the district court did depart from Alexander's guide-
line range because of his age and infirmity. Although the district court
initially refused to grant a downward departure based on his age and
infirmity, the court subsequently stated:

          He has now unequivocally indicated that he is guilty with
          respect to the January 20th transaction. And because of that,
          I will permit -- and because of age and infirmity-- I will
          permit a downward departure of three months to the mini-
          mum statutory requirement of 60 months, rather than 63
          months of the guidelines.

(J.A. 142-43). A defendant may not appeal the extent of a downward
departure unless the departure decision resulted in a sentence imposed
in violation of law or resulted from an incorrect application of the
guidelines. See United States v. Hill, 70 F.3d 321, 324 (4th Cir. 1995).
The district court did not incorrectly apply the guidelines by refusing
to depart more than three months because Alexander was subject to
a mandatory minimum sentence of sixty months. Also, Alexander's
age and physical condition was not a basis for a departure from the
mandatory minimum sentence. See 18 U.S.C.A.§ 3553(e)-(f).

Accordingly, we affirm Alexander's sentence. 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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