[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10975 DECEMBER 19, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00063-CR-P-NE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HOLMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 19, 2005)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
James Holmes appeals his 240-month sentence for conspiracy to possess
with intent to distribute 50 grams or more of a mixture and substance containing a
detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846, and maintaining a place for the purposes of manufacturing
and distributing a mixture and substance containing a detectable amount of cocaine
base, in violation of 21 U.S.C. § 856(a)(1).
Holmes argues for the first time on appeal that, for the violations of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, a district court may sentence within
the applicable sentencing guidelines range and below the statutory minimum when
the defendant satisfies all five of the safety-valve relief factors found in 18 U.S.C.
§ 3553(f) incorporated in U.S. Sentencing Guidelines Manual § 5C1.2. Holmes
also argues that the district court erred in denying his request for a mitigating role
reduction, pursuant to U.S. Sentencing Guidelines Manual § 3B1.2(a), because he
was plainly the least culpable of the group of co-conspirators.
As will be discussed below, we only need reach Holmes’s first argument
because his second one is moot. We have jurisdiction to review Holmes’s first
issue under United States v. Cruz, 106 F.3d 1553, 1556-57 (11th Cir. 1997). When
an appellant raises a claim of error not objected to before the district court we
review only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir. 2005), cert. denied, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005). We
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“may not correct an error the defendant failed to raise in the district court unless
there is: (1) error, (2) that is plain, and (3) that affects substantial rights.” Id.
(internal quotation omitted).
A defendant has the burden of proving his eligibility for relief under the
safety-valve provision. Cruz, 106 F.3d at 1557. To be eligible for the safety-valve
provision, a defendant must satisfy five conditions, the first of which is that he
cannot have more than one criminal history point. 18 U.S.C. § 3553(f); United
States v. Orozco, 121 F.3d 628, 630 (11th Cir. 1997) (per curiam); U.S. Sentencing
Guidelines Manual § 5C1.2.
We conclude that Holmes did not qualify for a safety-valve reduction
because he had more than one criminal history point. We need not address
Holmes’s second issue because Holmes was sentenced according to the statutory
mandatory minimum sentence. Even if Holmes were entitled to a U.S.S.G.
§ 3B1.2(a) “role reduction,” his sentence would be the same because the statutory
minimum without a safety-valve reduction exceeds the guideline recommendation.
See Cruz, 106 F.3d at 1555 n.3. Accordingly, we affirm Holmes’s sentence.
AFFIRMED.
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