                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________                  FILED
                                                            U.S. COURT OF APPEALS
                                 No. 09-16255                 ELEVENTH CIRCUIT
                             Non-Argument Calendar                JUNE 28, 2010
                           ________________________                JOHN LEY
                                                                    CLERK
                     D. C. Docket No. 08-00486-CR-6-BBM-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

CEMEKA MITCHEM,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________
                                (June 28, 2010)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Cemeka Mitchem appeals from her 135-month sentence, imposed after she

pled guilty to conspiracy to possess, with intent to distribute, at least 5 kilograms

of cocaine, and 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii), (iii), and 846. On appeal that: (1) the district court erred in assessing

her a criminal history point based on a prior uncounseled conviction; and (2) the

district court erred in denying her safety valve relief, pursuant to U.S.S.G. § 5C1.2.

After thorough review, we affirm.

      We review the district court’s interpretation of the sentencing guidelines and

statutes de novo, and its findings of fact for clear error. United States v. Valnor,

451 F.3d 744, 750 (11th Cir. 2006); United States v. Poyato, 454 F.3d 1295, 1297

(11th Cir. 2006).

      First, we are unpersuaded by Mitchem’s claim that the district court erred in

calculating her criminal history.    “In resolving any dispute concerning a factor

important to the sentencing determination, the court may consider relevant

information without regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has sufficient indicia of reliability

to support its probably accuracy.” United States v. Docampo, 573 F.3d 1091, 1098

(11th Cir. 2009), cert. denied, ___ S.Ct. ___ (No. 09-7833, Apr. 5, 2010) (citing

U.S.S.G. § 6A1.3, and holding that hearsay evidence was reliable when

corroborated by the defendant’s own testimony). In addition, the Supreme Court

has held that, as long as no prison term was imposed, “a defendant charged with a

misdemeanor had no constitutional right to counsel,” and that uncounseled



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misdemeanor conviction may be used to enhance her sentence for a subsequent

conviction. Nichols v. United States, 511 U.S. 738, 743, 748-49 (1994) (citing

Scott v. Illinois, 440 U.S. 367 (1979)).

      As an initial matter, since official court records were destroyed by a North

Carolina court, there was some uncertainty regarding whether Mitchem received a

prison sentence as a result of her concealed weapon conviction. In resolving the

dispute, the district court was free to consider any relevant information with

sufficient indicia of reliability. See Docampo, 573 F.3d at 1098. In doing so, it

considered two pieces of contradicting evidence -- Mitchem’s unchallenged, sworn

testimony that she did not receive any prison sentence, and an unchallenged,

unauthenticated computer printout from the sentencing court indicating that

Mitchem received a 30-day suspended sentence.

      In her testimony, Mitchem repeatedly stated that she did not receive any

prison sentence, and asserted that she remembered it “clearly.” She also testified,

however, that she neither received, nor signed, any paperwork regarding her plea

or sentence. Although the latter aspect of her testimony seems implausible, we

must give particular deference to the district court’s credibility determinations

when it had the benefit of witnessing live testimony. See Owens v. Wainwright,

698 F.2d 1111, 1113 (11th Cir. 1983) (“Appellate courts reviewing a cold record



                                           3
give particular deference to credibility determinations of a fact-finder who had the

opportunity to see live testimony.”). As a result, since Mitchem’s testimony was

internally consistent and unchallenged, the court did not commit clear error in

considering it as reliable evidence of her actual sentence, and finding that no prison

sentence was imposed. Moreover, since no prison sentence was imposed, Mitchem

had no right to counsel, and the district court properly used her uncounseled

misdemeanor conviction to enhance her sentence, by assessing her one criminal

history point. See Nichols, 511 U.S. at 743, 748-49.

      We likewise reject Mitchem’s claim that the district court erred in denying

her safety valve relief. To be eligible for a sentence below the statutory minimum

sentence, or a “safety valve,” a defendant must satisfy five conditions, including

that the defendant “does not have more than 1 criminal history point.” U.S.S.G. §

5C1.2(a). The burden of proving eligibility for safety valve relief rests on the

defendant. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). Further, a

district court may deny safety valve relief it if finds, by a preponderance of the

evidence, that the defendant has not satisfied each of the criteria. Poyato, 454 F.3d

at 1299-1300.

      As discussed above, the district court did not err in assigning Mitchem one

criminal history point for her concealed weapon conviction. In addition, Mitchem



                                          4
does not challenge on appeal the criminal history point assigned based on her

North Carolina conviction for marijuana possession. As a result, the district court

did not err in finding that Mitchem had two criminal history points, and thus, was

ineligible for safety valve relief. See id. Accordingly, we affirm.

      AFFIRMED.




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