                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4028



UNITED STATES OF AMERICA,

                                              Plaintiff -   Appellee,

          versus


WALTER OSMARO ALFARO-RAMIREZ,      a/k/a   Luis
Antonio Suarez-Delgado,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-268)


Submitted:   June 10, 2005                  Decided:   July 18, 2005


Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Elizabeth Horton, HORTON AND GSTEIGER, P.L.L.C., Winston-Salem,
North Carolina, for Appellant. Angela Hewlett Miller, Randall
Stuart Galyon, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Walter Osmaro Alfaro-Ramirez appeals his conviction for

conspiracy to possess with intent to distribute marijuana and his

resulting    sixty-month    sentence.     On   appeal,     Alfaro-Ramirez’s

counsel filed an Anders* brief, concluding that there were no

meritorious issues for appeal but addressing whether the district

court correctly found that Alfaro-Ramirez was not entitled to the

safety valve exception.        Alfaro-Ramirez further addressed this

issue in a pro se supplemental brief.          At this court’s request,

counsel filed a supplemental Anders brief, opining that United

States v. Booker, 125 S. Ct. 738 (2005), was inapplicable to

Alfaro-Ramirez’s sentence.

            Under the “safety valve” exception to statutory minimum

sentences, a defendant convicted of a drug crime may be given a

more lenient sentence within the otherwise applicable guidelines

range if, among other things, the defendant “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.”                18 U.S.C.

§   3553(f)(5)      (2000);   U.S.      Sentencing   Guidelines     Manual

§ 5C1.2(a)(5) (2003).      To satisfy § 3553(f)(5), Alfaro-Ramirez was

required to disclose all the information he possessed about his

involvement in the crime and his chain of distribution, including


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

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the identities and participation of others.    See United States v.

Romo, 81 F.3d 84, 85 (8th Cir. 1996).   The district court’s finding

that Alfaro-Ramirez did not satisfy the statutory requirements is

reviewed for clear error. See United States v. Daughtrey, 874 F.2d

213, 217 (4th Cir. 1989).

           It is undisputed that Alfaro-Ramirez failed to describe

the whole story of the conspiracy and refused to detail the roles

and identities of others involved.   The fact that he was willing to

describe his own role was insufficient to satisfy the statutory

requirements.   Thus, the district court’s finding was not clearly

erroneous.

           Next, citing Booker, Alfaro-Ramirez argues in his pro se

supplemental brief that he was entitled to a jury determination of

whether he satisfied the safety valve exception.       His attorney

raises the issue of whether Alfaro-Ramirez’s sentence violated the

Sixth Amendment. Because Alfaro-Ramirez did not raise either issue

in the district court, these claims are reviewed for plain error.

Fed. R. Crim. P. 52(b); United States v. Hughes, 401 F.3d 540, 547

(4th Cir. 2005).

           To meet this plain error standard: (1) there must be an

error; (2) the error must be plain; and (3) the error must affect

substantial rights.   United States v. Olano, 507 U.S. 725, 732-34

(1993).   If the three elements of the plain error standard are met,

the Court may exercise its discretion to notice error only “when


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failure to do so would result in a miscarriage of justice, such as

when the defendant is actually innocent or the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.”       Hughes, 401 F.3d at 555.

            In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750.           Thus, the district court erred in

sentencing Alfaro-Ramirez under the mandatory guidelines scheme.

See United States v. White, 405 F.3d 208, 216-17 (4th Cir. 2005).

That error was plain because Booker abrogated previous law of this

Circuit.     Id. at 217.     However, to affect substantial rights, the

sentence imposed must have been longer than what could have been

imposed based solely on the jury’s findings.             Hughes, 401 F.3d at

548. Here, Alfaro-Ramirez was sentenced to the statutory mandatory

minimum.    Thus, the mandatory guideline calculation had no effect

on   his   actual   sentence,   and    his    substantial   rights   were    not

affected.

            In   addition,    neither    Booker    nor   Hughes   holds     that

sentencing guidelines determinations must be made by a jury.

Instead,    courts     are   required    to    calculate    the   appropriate

guidelines range, in accordance with current practice and under a

preponderance of the evidence standard, and then consider that


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range along with other relevant factors before imposing a sentence.

Hughes, 401 F.3d at 546.        Thus, there is no merit to the argument

that the safety valve issue must be decided by a jury.                     The

decision    of   whether   a   defendant    has   satisfied   the   statutory

requirements of the safety valve exception is properly made by a

judge both pre- and post-Booker.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We   therefore     affirm    Alfaro-Ramirez’s     conviction   and

sentence.    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.              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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