                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4533


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TORIBIO SANDOVAL RIOS,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.     James A. Beaty, Jr.,
Chief District Judge. (1:09-cr-00003-JAB-1)


Submitted:   November 22, 2010            Decided:   December 27, 2010


Before GREGORY, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Donald Cowan, Jr., Heather Howell Wright, ELLIS & WINTERS,
LLP, Greensboro, North Carolina, for Appellant. John W. Stone,
Jr., Acting United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Toribio Sandoval Rios pleaded guilty, pursuant to a

written plea agreement, to one count of using a communication

device    to    facilitate     conspiracy         to    distribute    cocaine,     in

violation      of    21   U.S.C.    §   843(b)     (2006).        Under    the   plea

agreement, Rios agreed to waive indictment, be charged by an

information, and to plead guilty to the information.                      In return,

the   Government      agreed   to    dismiss      the   superseding       indictment,

which    had    charged    Rios     with   conspiracy       to    distribute     five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846

(2006).        The   agreement      also   contained      an     appellate   waiver,

providing that Rios agreed to waive appeal on any ground except

ineffective assistance of counsel, prosecutorial misconduct, a

sentence in excess of the statutory maximum, or a sentence based

on an unconstitutional factor.

            The district court sentenced Rios to forty-six months’

imprisonment, at the bottom of Rios’s U.S. Sentencing Guidelines

Manual (“USSG”) (2008) range.                  Rios appealed, and his counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), concluding that there are no meritorious grounds for

appeal, but asking us to review whether the district court erred

in failing to question Rios specifically about the appellate

waiver in his plea agreement.                  Rios also filed a supplemental

pro se brief questioning: (1) whether the district court erred

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when    it    failed       to    consider         a     reduction    for     acceptance      of

responsibility; (2) whether Rios was entitled to a reduction for

his    mitigating      role          in    the    offense;    and     (3)    whether     Rios

qualified      for     a        reduction         pursuant    to      the    safety    valve

provision.         We ordered supplemental briefing to address whether

the district court erred in failing to grant Rios a two-level

reduction      pursuant          to       USSG     §    2D1.1(b)(11).          Finding       no

reversible error, we affirm.

              We    first       note      that    the    Government    has    not    filed    a

motion to dismiss or otherwise sought to enforce the appellate

waiver contained in Rios’s plea agreement.                          This court does not

enforce      appellate      waivers         sua    sponte.      See    United      States    v.

Blick, 408 F.3d 162, 168 (4th Cir. 2005).                             Accordingly, it is

not    necessary     for        us    to    address      whether    the     district   court

should    have     questioned             Rios   specifically       about    the    appellate

waiver.

              We also need not address Rios’s contention that the

district court erred when it failed to consider a reduction for

acceptance of responsibility, as the record reflects that the

district court granted such a reduction.

              Rios     argues         that       the    district     court    should      have

considered a mitigating role reduction.                         Under USSG § 3B1.2, a

defendant can receive a two- or four-level reduction if he was a

minor or minimal participant in any criminal activity.                              However,

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this reduction is unavailable where “a defendant has received a

lower offense level by virtue of being convicted of an offense

significantly less serious than warranted by his actual criminal

conduct.”       USSG     § 3B1.2      cmt.        n.3(B).         Here,       Rios’s       actual

criminal conduct included participating as a cocaine distributor

and courier in a conspiracy responsible for the distribution of

more than five kilograms of cocaine, an offense that would have

established       a   base     offense        level      of     thirty-two,          see    USSG

§ 2D1.1(c)(4), rather than the base offense level of twenty-six

that he did receive.                Because Rios pled guilty to a lesser

offense and was held accountable for only the amount of cocaine

actually      discussed         during        the       charged       communication,            a

mitigating role reduction was unavailable.

              Next, we consider whether the district erred when it

failed   to    grant    Rios    a    two-level          reduction       pursuant       to    USSG

§ 2D1.1(b)(11).          We     review        legal      questions        concerning          the

application of the Guidelines de novo and factual questions for

clear    error.        United    States       v.       Manigan,    592        F.3d   621,     626

(4th Cir. 2010).          Rios      failed        to    argue     for     a    safety       valve

adjustment     before     the    district         court.        When     a     new   claim     is

pursued for the first time on direct appeal, we review for plain

error.         United     States         v.       Lighty,       616      F.3d        321,     365

(4th Cir. 2010); Fed. R. Crim. P. 52(b).                        This requires Rios to

establish:      “(1) error, (2) that is plain, and (3) that affects

                                              4
his substantial rights.”         Lighty, 616 F.3d at 365 (citing United

States v. Olano, 507 U.S. 725, 731-32 (1993)).

            The Government argues that the safety valve provision

is    inapplicable     because     Rios    has       failed   to     meet   the    final

requirement   enumerated      in    USSG       § 5C1.2(a).         Section   5C1.2(a)

predicates a two-level reduction on meeting five requirements,

the final one being that

       not later than the time of the sentencing hearing, the
       defendant has truthfully provided to the Government
       all   information  and   evidence  the   defendant has
       concerning the offense or offenses that were part of
       the same course of conduct or of a common scheme or
       plan, but the fact that the defendant has no relevant
       or useful other information to provide or that the
       Government is already aware of the information shall
       not preclude a determination by the court that the
       defendant has complied with this requirement.

USSG § 5C1.2(a)(5).         Rios states that it is not clear whether

the    information     he   provided       to        secure   the     acceptance        of

responsibility    reduction        would       satisfy    § 5C1.2(a)(5),          but   he

argues that the trial court erred in not considering whether

Rios was eligible for the adjustment.                 We disagree.

            We have held that “the burden rests on the defendant

to prove that the prerequisites for application of the safety

valve provision, including truthful disclosure, have been met.”

United   States   v.    Beltran-Ortiz,          91    F.3d    665,    669   (4th    Cir.

1996).    To meet this burden, Rios must demonstrate “some level

of affirmative conduct . . . that exceeds merely demonstrating a


                                           5
willingness to cooperate and answer questions.”                          United States

v. Ivester, 75 F.3d 182, 185 (4th Cir. 1996).                           “[A] defendant

does not meet the requirements of the ‘safety valve’ provision

merely     by      meeting     with    a    probation        officer      during       the

presentence investigation.”                United States v. Wood, 378 F.3d

342,    351   (4th Cir. 2004).          Because    Rios      bears      the   burden    of

establishing the applicability of the safety valve provision,

and because the only evidence that he is entitled to an offense-

level adjustment under that provision comes from the presentence

report, the district court did not err in failing to consider,

sua sponte, whether the safety valve provision applied to Rios.

              In accordance with Anders, we have thoroughly reviewed

the entire record in this case and have found no meritorious

issues for appeal.            We therefore affirm Rios’s conviction and

sentence.          This   court   requires      that   counsel      inform     Rios,    in

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

United    States      for    further   review.         If   Rios    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 Rios.

              We dispense with oral argument because the facts and

legal    contentions        are   adequately      presented        in   the   materials



                                            6
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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