UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4383
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DALE LAMONT MCCUTCHEON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00747-RBH-1)
Submitted: June 10, 2010 Decided: July 6, 2010
Before NIEMEYER and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James A. Brown, LAW OFFICES OF JIM BROWN, P.A., Beaufort, South
Carolina, for Appellant. Arthur Bradley Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dale McCutcheon pleaded guilty to conspiracy to
distribute and possess with intent to distribute cocaine base,
in violation of 21 U.S.C. § 846 (2006), and possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c) (2006). The district court sentenced
McCutcheon to the statutory mandatory minimum term of 180 months
of imprisonment. His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising one issue but
stating that there are no meritorious issues for appeal.
McCutcheon was advised of his right to file a pro se
supplemental brief, but did not do so. Finding no error, we
affirm.
Counsel questions whether McCutcheon was eligible for
the safety valve provision of 18 U.S.C. § 3553(f) (2006) and
U.S. Sentencing Guidelines Manual (“USSG”) § 5C1.2 (2009). As
McCutcheon did not object to the guidelines calculation in the
district court, we review this issue for plain error. See
United States v. Olano, 507 U.S. 725, 732 (1993).
To qualify for the safety valve provision, a defendant
must establish the existence of five prerequisites. A defendant
may qualify for a sentence below a statutorily required
mandatory minimum if: (1) the defendant does not have more than
one criminal history point; (2) the defendant did not use
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violence or possess a firearm in connection with the offense;
(3) the offense did not result in death or serious bodily
injury; (4) the defendant was not an organizer, leader, manager,
or supervisor of others in the offense; and (5) no later than
the time of sentencing, the defendant truthfully provided the
Government with all evidence the defendant had concerning the
offense. 18 U.S.C. § 3553(f); USSG § 5C1.2. As counsel
correctly concedes, here McCutcheon possessed a firearm in
connection with the conspiracy offense, and therefore he did not
qualify for the safety valve reduction.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform McCutcheon, in
writing, of the right to petition the Supreme Court of the
United States for further review. If McCutcheon 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 McCutcheon. 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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