United States v. Campos-Alejo , 161 F. App'x 240 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4292
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SERGIO CAMPOS-ALEJO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(CR-04-788)
Submitted: November 23, 2005 Decided: December 30, 2005
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Craig Brown, LAW OFFICE OF D. CRAIG BROWN, Florence, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sergio Campos-Alejo appeals from his 120-month sentence
imposed following his guilty plea to conspiracy to possess with
intent to distribute more than 50 grams of cocaine base and a
quantity of cocaine. Campos-Alejo’s counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738, 744 (1967), stating that
there were no meritorious issues for appeal, but addressing whether
the district court erred in refusing to apply the safety valve
exception, U.S. Sentencing Guidelines Manual § 5C1.2 (2003), to the
statutory minimum sentence applicable to Campos-Alejo. Campos-
Alejo was informed of his right to file a pro se supplemental
brief, but he has not done so. Because our review of the record
discloses no reversible error, we affirm Campos-Alejo’s conviction
and sentence.
We find that Campos-Alejo’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11. Campos-Alejo was properly advised of his rights, the
offense charged, and the minimum and maximum sentences for the
offense. The court also determined that there was an independent
factual basis for the plea and that the plea was not coerced or
influenced by any promises. See North Carolina v. Alford, 400 U.S.
25, 31 (1970); United States v. DeFusco, 949 F.2d 114, 119-20 (4th
Cir. 1991).
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The probation officer correctly computed Campos-Alejo’s
advisory guideline range as 87 to 108 months. USSG Ch. 5, Part A
(Sentencing Table). The probation officer noted, however, that the
statutory mandatory minimum sentence was 120 months. Campos-Alejo
objected to the presentence report, asserting that he should be
allowed the safety valve exception to the mandatory minimum
sentence pursuant to USSG § 5C1.2.
The court overruled this objection, finding that Campos-
Alejo failed to provide the Government with all truthful
information and evidence that he had concerning the offense. The
court rejected Campos-Alejo’s assertion that he had no information
to provide. In light of the quantity of drugs involved, the court
found his claimed lack of knowledge about the source of his supply
to be incredible. Accordingly, after considering the sentencing
factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), the
court sentenced Campos-Alejo to the statutory minimum sentence of
120 months’ imprisonment.
If a defendant meets the five criteria set out in
§ 5C1.2, he may be sentenced under the “applicable guidelines
without regard to any statutory minimum sentence.” USSG § 5C1.2.
The fifth criteria is that, by the time of sentencing, the
defendant has truthfully provided to the Government all information
and evidence in his possession concerning the offense. A defendant
must make an affirmative effort to disclose to the Government
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everything he knows concerning the offense or offenses involved
before he may be eligible for sentencing under the safety valve.
United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996).
Here, the district court determined that Campos-Alejo had
not provided all truthful information and evidence that he had
concerning the offense. We find no clear error in this finding.
See United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997). In
light of this finding, Campos-Alejo fails to meet the fifth
criteria for the application of the safety valve reduction. USSG
§ 5C1.2. Accordingly, we affirm Campos-Alejo’s 120-month sentence.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Campos-Alejo’s conviction and sentence. This court requires
that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client 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 the
client. 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.
AFFIRMED
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