                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4992



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


SALVADOR COMPARAN, JR.,

                                                Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00075-WLO)


Submitted:   August 27, 2007                 Decided:   October 2, 2007


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Kyle Smith, LAW OFFICE OF J. KYLE SMITH, P.L.L.C., Newton, North
Carolina, for Appellant. David Paul Folmar, Jr., Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Pursuant to a plea agreement, Salvador Comparan, Jr.,

pled   guilty    to     possessing   with    intent    to    distribute     663.63

kilograms of marijuana, in violation of 21 U.S.C.A. § 841(a)(1),

(b)(1)(B) (West 1999 & Supp. 2007).            He was sentenced to seventy-

eight months of imprisonment, to be followed by four years of

supervised release.        On appeal, Comparan’s counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967), raising

five issues but stating that there were no meritorious issues for

appeal. The Government declined to file a brief; Comparan, advised

of his right to file a pro se supplemental brief, has done so,

alleging ineffective assistance of counsel.

             Counsel     for   Comparan     first    seeks   to    challenge   the

district court’s denial of a motion to suppress.                        In view of

Comparan’s      valid    guilty   plea,   he   has    waived      all   antecedent

nonjurisdictional defects, Tollett v. Henderson, 411 U.S. 258, 267

(1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993),

including his Fourth Amendment claim. Counsel next claims that the

district court erred in considering the Government’s response to

Comparan’s objections to the presentence report.                   This claim is

patently without merit, particularly in light of trial counsel’s

concession that Comparan was not prejudiced by any delay on the

part of the Government.




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             Third,   counsel   for   Comparan       challenges   the   district

court’s application of a guidelines enhancement.                      Under U.S.

Sentencing Guidelines Manual § 2D1.1(b)(1) (2005), a defendant’s

base offense level is increased two levels “[i]f a dangerous weapon

(including a firearm) was possessed.”               USSG § 2D1.1(b)(1).     “The

adjustment should be applied if the weapon was present, unless it

is clearly improbable that the weapon was connected with the

offense.”    USSG § 2D1.1(b)(1) cmt. n.3.           “In order to prove that a

weapon was present, the Government need show only that the weapon

was possessed during the relevant illegal drug activity.”                 United

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).                     The

district court’s determination that a firearm or other weapon was

present and justifies the enhancement is a factual question that is

reviewed for clear error.        United States v. Apple, 915 F.2d 899,

914 (4th Cir. 1990).     Our review of the record leads us to conclude

that   the   district   court   did    not    err    in   enhancing   Comparan’s

sentence under this provision.

             Counsel also challenges whether the district court acted

unreasonably in denying Comparan a four-point reduction based on

his minimal role in the offense.              A defendant has the burden of

showing by a preponderance of the evidence that he had a minimal or

minor role in the offense.        United States v. Akinkoye, 185 F.3d

192, 202 (4th Cir. 1999).        A defendant may receive a four-level

reduction for being a minimal participant if he is “plainly among


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the least culpable of those involved in the conduct of a group.”

USSG § 3B1.2 cmt. n.4.      This level of culpability is shown by “the

defendant’s lack of knowledge or understanding of the scope and

structure of the enterprise and of the activities of others . . .

.”   Id.    A two-level reduction may be made when a defendant is a

minor participant, that is, one “who is less culpable than most

other participants, but whose role could not be described as

minimal.”    USSG § 3B1.2 cmt. n.5.

            In deciding whether the defendant played a minor or

minimal    role,   the   “critical   inquiry   is   not   just    whether    the

defendant has done fewer ‘bad acts’ than his co-defendants, but

whether    the   defendant’s   conduct   is    material   or     essential    to

committing the offense.” United States v. Pratt, 239 F.3d 640, 646

(4th Cir. 2001) (internal quotations and citations omitted).                Role

adjustments are determined on the basis of the defendant’s relevant

conduct.    United States v. Fells, 920 F.2d 1179, 1183-84 (4th Cir.

1990).     The district court in this case denied the minimal role

reduction, finding “no evidence to support a minimal or minor role

in connection with the crime,” and this finding is not clearly

erroneous.

            Finally, counsel questions whether the district court

acted unreasonably in denying an additional one-level downward

adjustment for acceptance of responsibility under USSG § 3E1.1(b).

However, this adjustment may only be made upon formal motion by the


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Government at the time of sentencing.          USSG § 3E1.1 cmt. n.6.        In

this case, there was no such motion.          Therefore, as the district

court   noted,   Comparan    was    not   eligible    for   the   third   point

reduction, and this claim entitles him to no relief.                      United

States v. Chase, 466 F.3d 310, 315 (4th Cir. 2006).

           In his pro se supplemental brief, Comparan asserts that

appellate counsel was ineffective for filing an Anders brief. This

claim is not cognizable on direct appeal.             To allow for adequate

development of the record, a defendant must bring such claims in a

28 U.S.C. § 2255 (2000) motion unless the record conclusively

establishes ineffective assistance of counsel.              United States v.

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

King, 119 F.3d 290, 295 (4th Cir. 1997).          Here, the record does not

conclusively     establish   that    Comparan’s      appellate    counsel   was

ineffective.

           In accordance with Anders, we have reviewed the record in

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

therefore affirm Comparan’s conviction and sentence.               This court

requires that counsel inform Comparan, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Comparan 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 Comparan.                We


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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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