UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4764
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUBEN RUIZ-CHAVEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00027-5)
Submitted: February 10, 2011 Decided: March 1, 2011
Before AGEE, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter C. Anderson, ANDERSON TERPENING, 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Unpublished opinions are not binding precedent in this circuit.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:
Ruben Ruiz-Chavez pleaded guilty, pursuant to a plea
agreement, to one count of conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(b)(1)(A), 846 (2006). Ruiz-Chavez was sentenced
to 120 months’ imprisonment. Ruiz-Chavez’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating his opinion that there are no meritorious issues for
appeal but raising the issue of whether the district court erred
in finding that Ruiz-Chavez did not meet the requirements for
the safety valve reduction. Ruiz-Chavez was notified of his
right to file a pro se supplemental brief, but has not filed a
brief. The Government has declined to file a responsive brief.
We affirm.
A district court’s determination of whether a
defendant has satisfied the safety valve criteria is a question
of fact reviewed for clear error. United States v. Wilson, 114
F.3d 429, 432 (4th Cir. 1997). This deferential standard of
review permits reversal only if this court is “‘left with the
definite and firm conviction that a mistake has been
committed.’” United States v. Stevenson, 396 F.3d 538, 542 (4th
Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573
(1985)).
2
To qualify for the safety valve provision, the
defendant must establish the existence of five prerequisites.
18 U.S.C. § 3553(f) (2006); USSG § 5C1.2. The burden is on the
defendant to prove that all five safety valve requirements have
been met. United States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th
Cir. 1996). Our review of the record leads us to conclude that
the district court’s finding that Ruiz-Chavez did not qualify
for the safety valve provision because he was not truthful in
his statement to the Government is not clearly erroneous.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. This court requires that counsel inform Ruiz-Chavez, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Ruiz-Chavez 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 Ruiz-Chavez.
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
3