UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5486

RAY WILLIS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5487

JIMMY BARTLETT,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-94-47)

Submitted: March 31, 1997

Decided: June 2, 1997

Before HALL, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

No. 95-5486 dismissed and No. 95-5487 affirmed by unpublished per
curiam opinion.

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COUNSEL

Terry F. Rose, CLOER & ROSE, Hickory, North Carolina; David G.
Belser, BELSER & PARKE, P.A., Asheville, North Carolina, for
Appellants. Mark T. Calloway, United States Attorney, Thomas R.
Ascik, Assistant United States Attorney, Asheville, North Carolina,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Ray Willis and Jimmy Bartlett pled guilty to participating in a con-
spiracy to possess with intent to distribute and to distribute more than
500 grams of cocaine. 21 U.S.C. § 846 (1994). Both executed plea
agreements which contained identical provisions waiving the right to
appeal a sentence which did not exceed the maximum of the applica-
ble sentencing guideline range, but excepting claims of ineffective
assistance or prosecutorial misconduct. Both were sentenced to a term
of 60 months, the statutory minimum. Each noted an appeal of his
sentence. We dismiss Willis' appeal on the basis of the waiver in his
plea agreement. We find that Bartlett's appeal is not precluded by the
waiver and affirm his sentence.

I. Willis

A defendant may waive his statutory right to appeal his sentence
if the waiver is knowing and voluntary. United States v. Marin, 961
F.2d 493, 496 (4th Cir. 1992). To ensure that the waiver is knowing
and voluntary, the district court should specifically question the
defendant about the waiver provision before accepting his plea. Id.
Whether the waiver is effective is a legal issue which we review de
novo. Id. Willis acknowledged before he entered his plea that he

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understood that he was waiving his right to appeal his sentence.
Therefore, the waiver is valid. Willis does not claim that he received
ineffective assistance of counsel or that prosecutorial misconduct
occurred. Consequently, his appeal will be dismissed.

II. Bartlett

For the same reasons, Bartlett's waiver is also valid. However, he
claims that the government breached the plea agreement by not
requesting a substantial assistance departure, USSG§ 5K1.1, p.s.1 and
asserting that Bartlett had not qualified for a sentence below the man-
datory minimum under the safety valve provision, 18 U.S.C.
§ 3553(f) (1994); USSG § 5C1.2. The waiver provision does not pre-
clude an appeal on these grounds.2 Because Bartlett did not make
these claims in the district court, they are reviewed under the plain
error standard. See United States v. Olano, 507 U.S. 725, 732-36
(1993) (defendant must show error which is plain, has prejudiced him,
and requires correction to protect the integrity of judicial proceed-
ings). Because the alleged breach and prosecutorial misconduct are
intertwined with the other sentencing issues Bartlett raises, we find it
necessary to address all of the issues raised by Bartlett.

The probation officer recommended that Bartlett was responsible
for 24 ounces (680.4 grams) of cocaine and had earned a 3-level
adjustment for acceptance of responsibility, USSG§ 3E1.1. The pro-
bation officer also recommended that Bartlett appeared to meet the
criteria in 18 U.S.C. § 3553(f) for a sentence below the statutory man-
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual (Nov.
1994).
2 Bartlett alleges in his appeal brief that the waiver does not apply
because his sentence was greater than the maximum of the guideline
range. This argument is incorrect because, when the statutorily required
minimum sentence is greater than the maximum of the applicable guide-
line range, the statutorily required minimum sentence becomes the guide-
line range. USSG § 5G1.1(b). Thus, Bartlett's guideline range was 60
months unless he qualified for a sentence below the mandatory minimum
by operation of the safety valve provision. The waiver in the plea agree-
ment permitted an appeal of his sentence in the event of an upward
departure. No departure was made here.

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datory minimum of 60 months. Bartlett objected to the recommended
drug amount, alleging that the amount was "substantially less" than
24 ounces.

A few days before the date scheduled for sentencing, the govern-
ment moved for a continuance because the Assistant United States
Attorney who was assigned to the cases was out of the country; the
prosecutor who was standing in for her stated that he had "been
informed that the United States has committed itself to make motions
for downward departures in these cases." The district court's response
is not in the record, but sentencing took place as originally scheduled.

At the beginning of Bartlett's sentencing, the government informed
defense counsel that it would oppose a sentence under the safety
valve provision. The government contended that Bartlett had not ful-
filled the fifth requirement: that by the time of sentencing the defen-
dant truthfully provide "to the government all information and
evidence [he] has concerning the offense or offenses that were part of
the same course of conduct or common scheme or plan." 18 U.S.C.
§ 3553(f)(5); USSG § 5C1.2(5).

The two investigating agents testified that Bartlett had refused to
cooperate when he was approached just after his arrest and that he had
not provided any information since then. They acknowledged that he
had not been approached again following his initial refusal to cooper-
ate. Bartlett's attorney argued that Bartlett had told everything he
knew to the probation officer after he entered into the plea agreement
and that, in doing so, he had complied with the fifth criteria in
§ 3553(f). The district court ultimately determined that Bartlett had
not complied with the last criteria of § 3553(f).

The district court also heard testimony from the agents concerning
the amount of cocaine which Bartlett had purchased from co-
conspirator Charles Knight over the six-month period that Bartlett
was involved in the conspiracy. Knight told investigators that Bartlett
was a street-level distributor who received one to three ounces of
cocaine from him every week during the six months before Knight
was indicted. Bartlett testified that he bought or was fronted about 12
ounces of cocaine. The district court concluded that Bartlett had
received 24 ounces of cocaine.

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Bartlett's assertion that the plea agreement was breached is based
on (1) the supposed admission by the government attorney that the
United States had committed itself to making a downward departure
motion and (2) his own claim that he told everything he knew to the
probation officer. In the motion for a continuance, the government
attorney stated only that he had "been informed" that there was a
commitment for a downward departure. The government attorney
never explained who had so informed him. However, the plea agree-
ment contained no promise to recommend a departure on any ground,
or to debrief Bartlett.

This Court has held that a defendant seeking the benefit of the
safety valve provision must affirmatively act to truthfully provide the
government with all information he has concerning his offense and
must also acknowledge responsibility for his actions. United States v.
Withers, 100 F.3d 1142, 1147 (4th Cir. 1996), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3631 (U.S. Mar. 17, 1997) (No. 96-7884); United
States v. Ivester, 75 F.3d 182, 184-85 (4th Cir.), cert. denied, ___ U.S.
___, 64 U.S.L.W. 3837 (U.S. June 17, 1996) (No. 95-8998). He may
not rely on the government's failure to debrief him unless the govern-
ment has promised to do so. See United States v. Beltran-Ortiz, 91
F.3d 665, 668-69 (4th Cir. 1996).

Bartlett's attorney argued that his client had truthfully provided all
the information he had to the probation officer after entering his
guilty plea and that it had been his understanding that disclosure to
the probation officer satisfied the last requirement of § 3553(f). The
district court rejected the argument. While this court has not
addressed the question, other circuits have held that, for purposes of
the safety valve provision, the prosecuting authority, not the probation
officer, is "the government." See United States v. Jimenez Martinez,
83 F.3d 488, 495-96 (1st Cir. 1996); United States v. Rodriguez, 60
F.3d 193, 195-96 (5th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.
Nov. 27, 1995) (No. 95-6481). We find this authority persuasive.

We note also that, at the sentencing hearing, Bartlett admitted
receiving only 12 ounces of cocaine, not the 24 ounces recommended
by the probation officer. Despite the 3-level adjustment for accep-
tance of responsibility he was given,3 it appears that either Bartlett
_________________________________________________________________
3 The government argues that Bartlett did not deserve the adjustment,
but did not object below and has not appealed the district court's adop-
tion of the probation officer's recommendation.

                    5
had changed his mind about providing full and truthful information
or he had never admitted receiving that amount to the probation offi-
cer. Based on the testimony of the investigating agents, the district
court did not plainly err in finding Bartlett responsible for 24 ounces
of cocaine. Because Bartlett did not make an affirmative effort to pro-
vide complete and truthful information to the prosecutor or govern-
ment agents and because he minimized his culpability at sentencing,
the district court did not err in finding that he did not qualify for a
sentence under the safety valve provision.

Finally, the record does not disclose that Bartlett joined in the gov-
ernment's motion for a continuance or objected to the denial of the
motion. Bartlett now asserts that he was prejudiced because the Assis-
tant United States Attorney who had negotiated his plea was not pres-
ent. However, she had advised the government attorney who was
standing in for her that the probation officer had been mistaken in rec-
ommending that Bartlett was qualified for a sentence under the safety
valve. Moreover, the district court assured defense counsel that his
account of his conversations with that prosecutor was accepted as
true. Under a plain error standard of review, Bartlett has not shown
that he was prejudiced by the denial of a continuance.

Accordingly, we dismiss Willis' appeal. Bartlett's sentence is
affirmed. 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.

No. 95-5486 - DISMISSED
No. 95-5487 - AFFIRMED

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