UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-4889

COREY S. WILLIS, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. W. Craig Broadwater, District Judge. (CR-99-19)

Submitted: May 16, 2000

Decided: September 8, 2000

Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.*

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S. Andrew Arnold, Shepherdstown, West Virginia, for Appellant. Melvin W. Kahle, Jr., United States Attorney, Thoms O. Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. _________________________________________________________________ *Judge Murnaghan did not participate in the consideration of this case. The opinion is filed by a quorum of the panel pursuant to

(d) (1994). Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Pursuant to his guilty plea, Corey S. Willis was convicted of dis- tributing crack cocaine. On appeal, he alleges that he was entitled to a downward adjustment under USSG § 2D1.1(b)(6) 1 even though he was not subject to a mandatory minimum sentence. Because we find that USSG § 2D1.1(b)(6) operates independently of USSG § 5C1.2, we vacate Willis' sentence and remand the case for resentencing.

The basic facts of this case are straightforward and undisputed. Willis was part of a small group that distributed crack cocaine in Jef- ferson County, West Virginia. Police ultimately arrested the conspira- tors after a series of controlled buys.

At sentencing, Willis argued that he was entitled to the USSG § 2D1.1(b)(6) adjustment. Although the Government conceded that Willis satisfied the factors listed in USSG § 5C1.2(1)-(5) and that he had the appropriate offense level, it objected to the adjustment because Willis was not subject to a mandatory minimum sentence.2 Specifically, the Government argued that a defendant only qualifies for the adjustment if he also qualifies for the"safety valve." The dis- trict court accepted the Government's argument and denied Willis' motion.

We review the district court's application of the Sentencing Guide- _________________________________________________________________ 1 U.S. Sentencing Guidelines Manual (1998). This section states that: "If the defendant meets the criteria set forth in subdivisions (1)-(5) of [USSG] § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) and the offense level determined above is level 26 or greater, decrease by 2 levels." 2 A mandatory minimum sentence is required for application of the "safety valve" under USSG § 5C1.2.

2 lines de novo. See United States v. Daughtrey ,

(4th Cir. 1989). The specific issue presented here is whether USSG § 2D1.1(b)(6) applies only when the defendant is subject to a manda- tory minimum sentence (as with USSG § 5C1.2), or whether it is a separate and distinct entity.

In deciding this issue, we find the Second Circuit's decision in United States v. Osei,

(2d Cir. 1997), highly persuasive. Osei presented a factual scenario identical to that found in the present case. In finding that USSG § 2D1.1(b)(4)3 is distinct from USSG § 5C1.2, the Second Circuit reasoned that if the Commis- sion wanted to restrict the application of USSG§ 2D1.1(b)(4) to defendants facing a mandatory minimum sentence, it could have expressly done so. See id.

We agree. The plain language of USSG § 2D1.1(b)(6) merely requires that a defendant meet the criteria found in USSG § 5C1.2(1)- (5); it does not state that the defendant must satisfy any of the other requirements found in that section. See also United States v. Leonard,

(5th Cir. 1998) (reaching the same result); United States v. Mertilus,

(11th Cir. 1997) (same).

We therefore vacate Willis' sentence and remand the case for resentencing in accordance with Osei. We dispense with oral argu- ment because the facts and legal contentions are adequately presented in the materials before the court, and argument would not aid the decisional process.

VACATED AND REMANDED _________________________________________________________________ 3 In 1997, the Commission redesignated USSG § 2D1.1(b)(4) as sub- section (b)(6). See Amendment 555.

3