UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 96-20809

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES EARL WILLIAMS,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (CR-H-282-14)

September 5, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

James Earl Williams appeals his conviction and sentence for

conspiracy to possess with intent to distribute and distribution of

cocaine base in violation of

. Williams’s court-

appointed counsel alleges that no nonfrivolous issues exist on

appeal and thus has submitted a motion to withdraw. Finding no

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. meritorious issues for appeal, we grant defense counsel’s motion

and dismiss Williams’s appeal.

I

Williams pleaded guilty pursuant to a written plea agreement

to conspiracy to possess with intent to distribute and distribution

of cocaine base in violation of

. Williams admitted

in district court to participating in a crack cocaine conspiracy by

acting as a “runner” between drug sellers in Bryan and College

Station, Texas and drug distributors in Houston, Texas. When the

district court subsequently asked Williams if he had intended to

commit the acts to which he had admitted, Williams responded, “I

didn’t mean to do it.” The district court reiterated its question,

and Williams responded that the facts recited by the government

were true and that he had intended to commit the acts described.

The district court found that Williams pleaded guilty voluntarily

and knowingly, and that an adequate factual basis supported the

plea. The court sentenced him to 135 months in custody, a five-

year term of supervised release, and a $50.00 special assessment.

Williams appeals.

II

Williams’s court-appointed counsel filed a motion to withdraw

from this appeal pursuant to Anders v. California,

,

,

(1967), which

establishes the procedure an appointed attorney must follow in

-2- order to withdraw from an appeal. If, after a conscientious

examination, counsel finds that no nonfrivolous issues remain in an

appeal, he or she may request permission from the appellate court

to withdraw.

Counsel must brief the court on any issue that

might arguably support an appeal and give the appellant an

opportunity to argue any point he or she chooses.

After a

full examination by the court, if the appeal is found to be wholly

frivolous, the court may grant counsel’s request to withdraw and

dismiss the appeal.

Counsel in this case briefed the issues

he believes might arguably support an appeal, and he provided

Williams with a copy of the brief. Williams also submitted a brief

addressing several issues.

Williams initially argues that his guilty plea was uninformed

and involuntary; counsel contradicts this contention.1 Rule 11 of

the Federal Rules of Criminal Procedure requires the district court

to follow certain procedures in taking a plea to ensure that the

plea is knowing and voluntary. In determining whether the district

court complied with Rule 11, we conduct “a straightforward, two-

question ‘harmless error’ analysis: (1) Did the sentencing court

in fact vary from the procedures required by Rule 11, and (2) if

so, did such variance affect substantial rights of the defendant?”

1 Counsel argues in the alternative that Williams waived in the plea agreement his right to appeal the entry of his guilty plea. The waiver-of-appeal provision in Williams’s plea agreement, however, only pertains to Williams’s waiver of his right to appeal his sentence or the manner in which it was determined.

-3- United States v. Johnson,

(5th Cir. 1993) (en

banc).

Review of the plea colloquy reveals that the district court

complied with the procedures required by Rule 11. The court

informed Williams of, and determined that Williams understood, the

following: the nature of the charge against him; the mandatory

minimum penalty provided by law; the maximum possible penalty

provided by law; the effect of the supervised release term; the

court’s duty to consider the applicable sentencing guidelines; and

the court’s ability to depart from those guidelines under some

circumstances. The court also informed Williams of the following

rights: his right not to plead guilty; his right to a jury trial

and to counsel; his right to confront and cross-examine adverse

witnesses; and his right against compelled self-incrimination.

Finally, the court informed Williams that by pleading guilty he

waived his right to a jury trial and that his answers to the

court’s questions could be used against him in a subsequent perjury

prosecution.

In response, Williams stated that he had not been induced to

plead guilty by promises made to him by any person, he acknowledged

that he understood that his plea agreement limited his right to

appeal, and he executed the plea agreement in open court.

Williams’s bare allegation that his plea was involuntary and

unknowing does not undermine the record evidence demonstrating that

-4- Williams’s plea was knowing and voluntary and that the district

court complied with Rule 11 in all respects.

In addition, without providing any specific argument, Williams

generally asserts that his plea was not supported by an adequate

factual basis. Rule 11(f) obligates the district court to question

a defendant or examine the record to satisfy itself that an

adequate factual basis for a guilty plea exists. United States v.

Adams,

(5th Cir. 1992) (per curiam).

In this case, the Assistant United States Attorney (“AUSA”)

summarized the factual basis for Williams’s guilty plea. The AUSA

stated that Williams participated in a crack cocaine conspiracy by

acting as a “runner” between drug sellers in Bryan and College

Station, Texas and drug distributors in Houston, Texas. The AUSA

explained that Williams had admitted his role in the offense and

that surveillance would independently establish Williams’s role.

Williams acknowledged the truth of the government’s

description of the events. When the district court subsequently

asked Williams if he had intended to commit the acts to which he

had admitted, Williams responded, “I didn’t mean to do it.” The

district court reiterated its question, and Williams responded that

the facts recited by the government were true and that he had

intended to commit the acts described. As a result, the district

court found that an adequate factual basis supported the plea. Our

review of the record supports the district court’s conclusion that

-5- an adequate factual basis supported Williams’s guilty plea.

Williams next argues that the district court erred in its

calculation of the quantity of narcotics attributable to him for

sentencing purposes because the quantity attributed to him was not

foreseeable. We generally review for clear error a district

court’s factual findings regarding the quantity of drugs

attributable to the defendant for sentencing purposes. United

States v. Vital,

(5th Cir. 1995). However,

because Williams failed to object to the district court’s drug

quantity finding, we will not reverse unless we find plain error.

United States v. Ruiz,

(5th Cir. 1995); Fed. R.

Crim. P. 52(b). To be “plain,” an error must be so conspicuous

that the trial judge and prosecutor were derelict in countenancing

it, even absent the defendant’s timely assistance in detecting it.

Ruiz,

.

Without making separate findings regarding the drug quantity

attributable to Williams, the district court adopted the probation

officer’s recommendation in the Presentence Report (“PSR”) that the

same amount of crack cocaine be attributed to Williams for

sentencing purposes as was attributed to Melvin Smith, the leader

and organizer of the group of drug dealers. The court also adopted

the statement in the PSR that Williams made at least four trips on

Smith’s behalf to retrieve powder cocaine from codefendant Domingo

Rodriguez. In light of Williams’s failure to object, we find no

-6- plain error in the district court’s drug quantity finding. See

United States v. McCaskey,

(5th Cir. 1993) (per

curiam) (“[Q]uestions of fact capable of resolution by the district

court upon proper objection at sentencing can never constitute

plain error.”), cert. denied,

,

,

(1994); see also Ruiz,

(“[W]e have

consistently held that the failure of the district court to make

findings was not error in the absence of a timely objection by the

defendant.”).

Counsel points to two other possible issues for appeal.

First, counsel notes that the district court rejected Williams’s

request for a decrease in his total offense level for acceptance of

responsibility. The defendant bears the burden of demonstrating

that he is entitled to the reduction for acceptance of

responsibility, and we review the sentencing court’s determination

with even more deference than the “clearly erroneous” standard.

United States v. Flucas,

(5th Cir. 1996) (per

curiam), cert. denied, __ U.S. __,

,

(1997). The entry of a guilty plea does not entitle a

defendant to a reduction for acceptance of responsibility as a

matter of right.

Here, the district court adopted the probation officer’s

recommendation in the PSR that Williams not receive a downward

adjustment for acceptance of responsibility. The probation officer

-7- based this recommendation on the fact that Williams had sent

letters to the United States Probation Office in which he denied

transporting drugs for anyone and asserted that he had only cleaned

automobiles for Melvin Smith. Williams did not offer any evidence

rebutting the findings contained in the PSR. The district court

was thus free to adopt the findings in the PSR without further

inquiry or explanation. See Vital,

(“[I]f no

relevant affidavits or other evidence is submitted to rebut the

information contained in the PSR, the court is free to adopt its

findings without further inquiry or explanation.”). Under these

circumstances, the district court did not err in denying Williams

a reduction for acceptance of responsibility.

Counsel also points to the district court’s denial of

Williams’s motion to disregard the statutory mandatory minimum

sentence pursuant to the “safety valve” provision in USSG § 5C1.2

as an arguable issue for appeal. We review a district court’s

refusal to apply § 5C1.2 for clear error. United States v.

Rodriguez,

, 195 n.1 (5th Cir.), cert. denied, __ U.S.

__,

,

(1995).

Section 5C1.2 is a “safety valve” provision which allows

qualified defendants to escape the applicable statutory minimum

sentence. United States v. Edwards,

(5th Cir.

1995). Section 5C1.2 allows this relief only if the defendant

meets five criteria:

-8- (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, or supervisor of others in the offense, as determined under sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in

; and

(5) not later than the time of the sentencing hearing, the defendant 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, but the fact that the defendant has no relevant or useful information shall not preclude a determination by the court that the defendant has complied with this requirement.

Here, it is undisputed that Williams satisfied the first four

requirements for application of § 5C1.2. The record contains no

evidence, however, that Williams attempted to provide any

information to the government.2 As a result, the district court

2 The appendix attached to Williams’s supplemental brief contains a letter to Williams from his attorney. In this letter, in which counsel notified Williams of the filing of the Anders motion, counsel states: “I must advise you that on the issue of the application of the safety valve, I failed to ensure that the record contained affirmatively my discussion with [AUSA] Tom Meehan wherein I indicated your willingness to speak with the government. Mr. Meehan’s response was that the government was not interested. I am prepared to provide you with an affidavit to this effect should you make a decision to file an application for post-conviction relief under

.”

-9- did not err in denying Williams’s § 5C1.2 motion.3

Williams last argues that he received ineffective assistance

of counsel during the plea proceedings. Williams did not raise

this issue in district court and therefore cannot raise it on

direct appeal. See United States v. Price,

(5th

Cir. 1996) (per curiam) (“Because Price’s claim of ineffective

assistance of counsel was not raised below so that an adequate

record could be developed, this claim must be dismissed without

prejudice to his right to raise it in a future section 2255

proceeding.”).

III

Based on the foregoing, we find no meritorious issues to

support Williams’s appeal. We therefore GRANT counsel’s request to

withdraw and DISMISS Williams’s appeal. We GRANT Williams’s motion

for leave to file his supplemental brief.

3 Counsel contends that Williams waived his right to appeal his sentence. The waiver-of-appeal provision in Williams’s plea agreement states that Williams was aware that Title

affords a defendant the right to appeal the sentence imposed. Knowing that, the defendant waives the right to appeal the sentence (or the manner in which it was determined) except that the defendant reserves the right to appeal for the following reasons only:

(1) The sentence was imposed in violation of law;

(2) The sentence was imposed as a result of an incorrect application of the sentencing guidelines.

Because we have found that the district court committed no errors in sentencing Williams, we need not determine the scope of this waiver-of-appeal provision.

-10-