                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4188


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HECTOR LOPEZ-GUTIERREZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.      Richard L.
Voorhees, District Judge. (5:10-cr-00032-RLV-8)


Submitted:   December 13, 2012            Decided:   December 21, 2012


Before DAVIS, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dianne J. McVay, JONES MCVAY FIRM, PLLC, Charlotte, North
Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

               Pursuant to a written plea agreement, Hector Lopez-

Gutierrez pled guilty to conspiracy to distribute and to possess

with intent to distribute methamphetamine, in violation of 21

U.S.C.     §    846     (2006).           The    district        court    sentenced     Lopez-

Gutierrez        to     210     months’         imprisonment.             Lopez-Gutierrez’s

counsel    has        submitted      a     brief      in     accordance     with   Anders      v.

California,       386     U.S.      738     (1967),         stating   that      there   are    no

meritorious        grounds       for       appeal      but     questioning       whether      the

district        court     erred        when      it     calculated        Lopez-Gutierrez’s

Guidelines        range       and    whether          the    sentence     is    substantively

reasonable.           Lopez-Gutierrez has filed a supplemental pro se

brief that challenges the voluntariness of his guilty plea and

the district court’s calculation of his Guidelines range.                                      We

affirm.

               Although Lopez-Gutierrez challenges the voluntariness

of   his       guilty     plea,      his      sworn         statements    during    the    plea

colloquy        contradict           his        arguments        on      appeal.        Absent

“extraordinary circumstances, the truth of sworn statements made

during     a     [Fed.     R.       Crim.       P.]    11     colloquy     is    conclusively

established.”           United States v. Lemaster, 403 F.3d 216, 221-22

(4th Cir. 2005).              “[W]hen a defendant says he lied at the Rule

11 colloquy, he bears a heavy burden in seeking to nullify the

process.”        United States v. Bowman, 348 F.3d 408, 417 (4th Cir.

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2003).     We   have   reviewed        the       contentions    on   appeal      and   are

satisfied that Lopez-Gutierrez has not met his burden of showing

that he lied during the plea colloquy.                      We therefore conclude

that Lopez-Gutierrez’s plea was knowing and voluntary.

           Turning       to     Lopez-Gutierrez’s              challenge        to     his

sentence, we review for reasonableness, applying an abuse of

discretion standard.           Gall v. United States, 552 U.S. 38, 51

(2007).    This review requires appellate consideration of both

the   procedural   and    substantive            reasonableness      of    a   sentence.

Id.

           Lopez-Gutierrez’s            counsel        questions          whether       the

district court erred in finding that the drugs attributable to

Lopez-Gutierrez    were       actual    methamphetamine.             “We    review      the

district    court’s      calculation             of   the      quantity        of     drugs

attributable to a defendant for sentencing purposes for clear

error.”    United States v. Slade, 631 F.3d 185, 188 (4th Cir.)

(internal quotation marks omitted), cert. denied, 131 S. Ct.

2943 (2011).     We reverse “only if we are left with the definite

and firm conviction that a mistake has been committed.”                              United

States v. Jeffers, 570 F.3d 557, 570 (4th Cir. 2009) (internal

quotation marks omitted).          We have reviewed the contentions on

appeal and are satisfied that the district court did not clearly

err in attributing actual methamphetamine to Lopez-Gutierrez.



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           Second, counsel questions whether the district court

erred when it enhanced Lopez-Gutierrez’s base offense level by

two levels for possession of a firearm.            A two-level increase in

a   defendant’s    offense   level    is     warranted   “[i]f     a   dangerous

weapon (including a firearm) was possessed.”                   U.S. Sentencing

Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2010).                 The defendant

bears   the    burden   to     show   that    a   connection      between    his

possession of a firearm and his narcotics offense is “clearly

improbable.”      United States v. Harris, 128 F.3d 850, 852-53 (4th

Cir. 1997) (internal quotation marks omitted).                 We conclude that

Lopez-Gutierrez has not met his burden of establishing that a

connection between his possession of a firearm and his offense

was clearly improbable and that the district court’s finding was

not clearly erroneous.

           Third,    counsel    questions     whether    the    district    court

erred when it found that Lopez-Gutierrez was not eligible for

the safety valve reduction in USSG § 5C1.2(a).                   The defendant

has the burden of showing that he meets all five criteria for

application of the safety valve reduction.                 United States v.

Henry, 673 F.3d 285, 292-93 (4th Cir.), cert. denied, 133 S. Ct.

182 (2012).       Lopez-Gutierrez provided no evidence to establish

that he did not actually possess a weapon or that he gave a

qualifying statement.        We therefore conclude that the district



                                      4
court’s refusal       to    apply    the   safety    valve     reduction     was      not

clearly erroneous.

             Fourth, counsel questions whether the district court

erred   in    determining        that    Lopez-Gutierrez       was   not    a    minor

participant in the conspiracy and, therefore, not eligible for a

two-level reduction in his offense level.                   The Guidelines permit

a two-level mitigating role reduction if the defendant was a

minor participant in any criminal activity.                       USSG § 3B1.2(b).

We   have    reviewed      the   contentions       raised    on   appeal     and      are

satisfied     that    the    district      court    did     not   clearly       err   in

declining to label Lopez-Gutierrez as a minor participant in the

conspiracy.

             Finally,        counsel           questions       the     substantive

reasonableness       of     Lopez-Gutierrez’s             sentence   because          the

district court declined to vary below the Guidelines range.                           As

the district court sentenced Lopez-Gutierrez within the properly

calculated Guidelines range, we apply a presumption on appeal

that the sentence is reasonable.                See United States v. Mendoza—

Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).                    Such a presumption

is rebutted only by showing “that the sentence is unreasonable

when measured against the § 3553(a) factors.”                     United States v.

Montes-Pineda,       445    F.3d    375,   379     (4th    Cir.   2006)     (internal

quotation marks omitted).               Because Lopez-Gutierrez has not met

his burden of showing that his sentence is unreasonable when

                                           5
measured against the § 3553(a) factors, we conclude that the

district court did not abuse its discretion in imposing the 210-

month sentence.

               In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.        We    therefore    affirm       the    district    court’s     judgment.

This    Court       requires   that     counsel      inform    Lopez-Gutierrez,         in

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

United States for further review.                    If Lopez-Gutierrez 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 Lopez-Gutierrez.

               We dispense with oral argument because the facts and

legal       contentions     are   adequately         presented    in   the   materials

before      this    Court   and   argument      would    not     aid   the   decisional

process.

                                                                                AFFIRMED




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