                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4648


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SALVADOR VARGAS TORRES, a/k/a Chava,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., District Judge. (3:11-cr-00003-RJC-19)


Submitted:   April 25, 2014                   Decided:   May 12, 2014


Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John J. Cacheris, LAW OFFICE OF JOHN J. CACHERIS, P.C.,
Charlotte, North Carolina, for Appellant.   William A. Brafford,
Assistant United States Attorney, Charlotte, North Carolina; Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Salvador       Vargas    Torres     appeals   his      conviction     and

sentence for conspiracy to distribute and to possess with intent

to distribute at least five kilograms of cocaine, in violation

of 21 U.S.C. § 846.          Torres pled guilty pursuant to a written

plea agreement and was sentenced to 170 months’ imprisonment and

five years of supervised release.               On appeal, counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting    that,   in     light    of    Torres’   waiver   of    his   right    to

appeal,     there    are    no   meritorious         issues   for    appeal,      but

questioning whether the Government wrongfully declined to file a

motion for a downward departure based on substantial assistance

and whether the district court erred in applying a four-level

sentencing enhancement for Torres’ role in the offense.                       Torres

has not filed a supplemental pro se brief, despite notice of his

right to do so.      We affirm Torres’ conviction and sentence.

            Although       counsel        is   correct    that      Torres’     plea

agreement contained an appellate waiver, the Government has not

sought to enforce the waiver in this case.                       Accordingly, we

conduct a full review of the record as required by Anders.                        See

United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007)

(“If an Anders brief is filed, the government is free to file a

responsive brief raising the waiver issue (if applicable) or do



                                           2
nothing,     allowing      this    court    to    perform         the    required             Anders

review.”).

             Counsel      first    questions      the    Government’s               failure      to

move   for    a    downward       departure       pursuant         to    U.S.       Sentencing

Guidelines Manual (USSG) § 5K1.1, despite the assistance Torres

provided.     When, as in this case, the plea agreement accords the

Government        sole    discretion       whether       to       file        a    substantial

assistance     motion,      the     defendant      generally            may       not    complain

about the failure to file such a motion.                          See United States v.

Wallace, 22 F.3d 84, 87 (4th Cir. 1994).                          The record identifies

no   exception      to    this     rule    that    would      apply       in       this        case.

Therefore, we find no error.

             Counsel       next    questions       whether         the    district            court

erred in applying a four-level enhancement for Torres’ role in

the offense.         The Sentencing Guidelines provide that a four-

level enhancement applies “[i]f the defendant was an organizer

or leader of a criminal activity that involved five or more

participants or was otherwise extensive.”                         USSG § 3B1.1(a).                We

review for clear error the district court’s factual finding that

a defendant is an organizer or leader in the offense.                                         United

States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009).                                    Reversal

for clear error is warranted only when we are left with the

“definite     and        firm     conviction      that        a     mistake             has    been



                                            3
committed.”          United States v. Harvey, 532 F.3d 326, 336-37 (4th

Cir. 2008) (internal quotation marks omitted).

            Here,           the     testimony             presented           at     sentencing

establishes that the criminal activity involved at least five

participants         and    that    Torres      exercised         a   leadership          role    by

distributing          drugs        through          several           coconspirators             and

supervising some of their drug sales.                          Thus, the district court

did not clearly err in finding Torres to be an organizer or

leader     in    the        conspiracy     and       in        applying       the    four-level

enhancement of USSG § 3B1.1(a).

            In accordance with the requirements of Anders, we have

examined the entire record and have found no meritorious issues.

We therefore affirm the district court’s judgment.                                   This Court

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

petition    the      Supreme       Court   of       the    United       States      for   further

review.         If   Torres       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 Torres.

            We dispense with oral argument because the facts and

legal    contentions         are    adequately            presented      in    the    materials




                                                4
before   this   Court   and   argument   would   not   aid   the   decisional

process.



                                                                     AFFIRMED




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