United States v. Walls , 16 F. App'x 253 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4052
DEREK SHANNON WALLS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-00-115-BO)
Submitted: July 26, 2001
Decided: August 16, 2001
Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Stephen C. Gordon, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. John Stuart Bruce, United States Attor-
ney (Interim), Anne M. Hayes, Assistant United States Attorney,
Ethan A. Ontjes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
2 UNITED STATES v. WALLS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
During 1998 and 1999, investigating agents made four undercover
purchases totaling 225 grams of cocaine base (crack) from Derek
Shannon Walls. In April 1999, Walls was arrested with 119 grams of
crack in his possession. He pled guilty to possession of 119 grams of
crack, 21 U.S.C.A. § 841(a) (West 1999), and received a sentence of
135 months imprisonment. Walls appeals his sentence, contending
that the district court plainly erred in failing to sentence him under the
safety valve provision, U.S. Sentencing Guidelines Manual § 5C1.2
(2000), and that his due process rights were violated in that his
offense level was increased based on relevant conduct that was not
charged in the indictment or admitted by him. Walls has also moved
for leave to file a pro se supplemental brief. We grant leave to file the
supplemental brief, and affirm.
Walls asserts that he was entitled to be sentenced under the safety
valve provision because he admitted possessing illegal drugs. Because
Walls failed to raise application of the safety valve provision in the
district court, our review is for plain error. United States v. Olano,
507 U.S. 725, 732-35 (1993). The safety valve provision permits a
sentence below a statutory minimum sentence* if the defendant meets
five criteria, one of which is that, by the time of sentencing, the defen-
dant "has truthfully provided to the Government all information and
evidence the defendant has concerning the offense or offenses that
were part of the same course of conduct or of a common scheme or
plan . . . ." 18 U.S.C.A. § 3553(f)(5) (West 2000); USSG § 5C1.2.
The district court inquired at sentencing whether Walls was cooperat-
ing, and the government stated that he was not.
*The mandatory minimum sentence in Walls’ case was 120 months;
he received a sentence of 135 months. However, had Walls met the
criteria in § 5C1.2, his offense level could have been reduced by two
levels under § 2D1.1(b)(6).
UNITED STATES v. WALLS 3
A defendant has the burden of showing that he has met the criteria
in § 5C1.2. United States v. Wilson, 114 F.3d 429, 432 (4th Cir.
1997). With respect to the requirement that he provide truthful infor-
mation to the government about the offense and all related criminal
conduct, the defendant may not wait to be debriefed by the govern-
ment, but must act affirmatively to ensure that he has provided to the
government all the relevant information he has before he is sentenced.
United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996). Walls
clearly did not meet this requirement. Consequently, the district court
did not plainly err in failing to consider the application of § 5C1.2.
Walls also asks that we reconsider our holding in United States v.
Kinter, 235 F.3d 192, 199-201 (4th Cir. 2000), cert. denied, 121 S. Ct.
1393 (2001). In Kinter, we held that the government is not required
under Apprendi v. New Jersey, 530 U.S. 466 (2000), to submit to a
jury and prove beyond a reasonable doubt facts underlying sentence
enhancements that increase the guideline range but do not increase the
statutory maximum sentence. 235 F.3d at 201-02. We further found
that the relevant "maximum" sentence is the statutory maximum, not
the maximum sentence under the guidelines. Id. at 201. Walls urges
us to reconsider the holding in Kinter. However, a panel may not
overrule the decision of a prior panel in this circuit. Brubaker v. City
of Richmond, 943 F.2d 1363, 1381-82 (4th Cir. 1991).
In his pro se supplemental brief, Walls claims that he received inef-
fective assistance of counsel in connection with his guilty plea and
sentencing. We have held that ineffective assistance claims are only
appropriate on direct appeal when it "conclusively appears" from the
record that defense counsel did not provide effective representation.
United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994). Here,
the record does not conclusively demonstrate that defense counsel
was ineffective. Therefore, the claim is better raised in a motion to
vacate pursuant to 28 U.S.C.A. § 2255 (West Supp. 2001).
We therefore affirm the sentence. We grant Walls’ motion to file
the pro se supplemental brief. 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