                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4145


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FELIPE JESUS MADRIGAL, a/k/a Sld Dft 3:03cr70-11,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:03-cr-00070-FDW-DSC-11)


Submitted:   March 24, 2011                 Decided:   April 11, 2011


Before SHEDD, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Henry C. Su, HOWREY, LLP, East Palo Alto, California, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Felipe Jesus Madrigal pleaded guilty, pursuant to a

plea   agreement,   to   one    count   of     conspiracy      to   possess       with

intent to distribute cocaine and marijuana, in violation of 21

U.S.C. §§ 841(a)(1), 846 (2006).              The district court sentenced

Madrigal to seventy months’ imprisonment.                  Madrigal’s counsel

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

(1967), stating his opinion that there are no meritorious issue

for appeal but questioning whether Madrigal’s guilty plea was

knowing and voluntary and whether Madrigal’s trial counsel was

constitutionally    ineffective.              Madrigal     filed      a     pro    se

supplemental    brief    asserting          that   he    was   entitled       to    a

substantial    assistance      departure      pursuant    to   U.S.       Sentencing

Guidelines Manual § 5K1.1 (2004), and that the district court

erred in failing to apply the 18 U.S.C. § 3553(f) (2006) safety

valve.   The Government has declined to file a responsive brief.

We affirm.

           First, counsel questions whether Madrigal’s plea was

knowing and voluntary.          Because Madrigal did not move in the

district court to withdraw his guilty plea, the Rule 11 hearing

is reviewed for plain error.                United States v. Martinez, 277

F.3d 517, 525-26 (4th Cir. 2002).                  To establish plain error,

Madrigal “must show: (1) an error was made; (2) the error is

plain; and (3) the error affects substantial rights.”                        United

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States    v.    Massenburg,       564    F.3d     337,    342-43       (4th    Cir.      2009)

(reviewing unpreserved Rule 11 error).                    “The decision to correct

the error lies within [this Court’s] discretion, and [the Court]

exercise[s] that discretion only if the error seriously affects

the     fairness,       integrity       or    public      reputation          of     judicial

proceedings.”          Id. at 343 (internal quotation marks omitted).

After a careful review of the record, we conclude that no error,

plain or otherwise, was committed during the district court’s

acceptance      of     Madrigal’s    guilty       plea,    which       was    knowing         and

voluntary.

               Next     counsel     questions       whether          Madrigal’s          trial

counsel was ineffective.                Claims of ineffective assistance of

counsel are not cognizable on direct appeal unless the record

conclusively          establishes       ineffective         assistance.                  United

States v.       James,    337   F.3d     387,     391    (4th    Cir.      2003);        United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                                       To

allow     for    adequate       development        of     the    record,           claims      of

ineffective       assistance      generally       should        be   brought        in    a    28

U.S.C.A. § 2255 motion.             United States v. King, 119 F.3d 290,

295 (4th Cir. 1997).            Because our review of the record reveals

that     ineffective       assistance        of   counsel       is   not      conclusively

established, this claim is not cognizable on direct review.

               Next,     Madrigal   asserts       that     he    was    entitled          to    a

§ 5K1.1 departure.           District courts can “review a prosecutor's

                                              3
refusal to file a substantial-assistance motion and to grant a

remedy      if    they    find     that      the     refusal         was   based    on    an

unconstitutional motive.”              Wade v. United States, 504 U.S. 181,

185-86      (1992).       Madrigal’s         plea    agreement        states      that    the

Government “may” make a § 5K1.1 motion, but clearly leaves the

decision of whether to move for a § 5K1.1 departure to the sole

discretion of the Government.                When, as here, the plea agreement

imposed no binding obligation, even if the defendant cooperated

“fully and truthfully,” the decision whether to make the motion

lies with the government.              United States v. Wallace, 22 F.3d 84,

87   (4th    Cir.      1994).     In    this      case,   the    Government        made    no

promises that it would move for a § 5K1.1 departure, nor does

Madrigal allege that the Government’s refusal to make such a

motion was based on an unconstitutional motive.                              Accordingly,

Madrigal failed to demonstrate he was entitled to a departure.

              Lastly,     Madrigal      contends      that      he    should   have      been

eligible for the safety valve reduction.                             A district court’s

determination of whether a defendant has satisfied the safety

valve criteria is a question of fact reviewed for clear error.

United   States v.        Wilson,      114   F.3d    429,    432      (4th   Cir.    1997).

This deferential standard of review permits reversal only if

this court is “‘left with the definite and firm conviction that

a mistake has been committed.’”                   United States v. Stevenson, 396

F.3d   538,      542   (4th     Cir.   2005)      (quoting   Anderson        v.    Bessemer

                                              4
City, 470 U.S. 564, 573 (1985)).                 To qualify for the safety

valve provision, the defendant must establish the existence of

five prerequisites.        18 U.S.C. § 3553(f) (2006); USSG § 5C1.2.

The burden is on the defendant to prove that all five safety

valve     requirements      have    been       met.         United         States    v.

Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996).                           Because of

Madrigal’s    passport     fraud    conviction,        he     had    two     criminal

history    points.       Therefore,      Madrigal      does    not    satisfy       the

statutory requirement that the defendant have no more than one

criminal history point.        Accordingly, the district court did not

err,    clearly   or   otherwise,   in       finding   that   Madrigal        did   not

qualify for the safety valve.

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

This court requires that counsel inform Madrigal, in writing, of

the right to petition the Supreme Court of the United States for

further review.        If Madrigal 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 Madrigal.

            We dispense with oral argument because the facts and

legal    contentions     are   adequately       presented     in     the    materials



                                         5
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   AFFIRMED




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