US v. Toriana Cave

Filing 920100119

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4779

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. TORIANA MARCELLUS CAVE, Defendant ­ Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:06-cr-00474-NCT-6)

Submitted:

July 28, 2009

Decided:

January 19, 2010

Before MICHAEL, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A., WinstonSalem, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Toriana Marcellus Cave pled not guilty to conspiring to distribute five kilograms or more of a substance containing a detectable amount of cocaine, in violation of 21 U.S.C.

§ 841(b)(1)(A) (2006) and was released on bond. later, Cave a was arrested on a complaint

Five months that he

alleging a

threatened indictment

Government Cave

witness. with

Thereafter, to

superseding five

charged

conspiring

distribute

kilograms or more of a substance containing a detectable amount of cocaine ("Count One") and threatening a witness, in violation of 18 U.S.C. §§ 1512(b)(1) & (b)(2)(A) (2006) ("Count Two"). Cave eventually pled guilty to Count One pursuant to a plea agreement. At the conclusion of Cave's sentencing hearing, the district court determined that the safety valve provision in 18 U.S.C. § 3553(f) (2006) and U.S. Sentencing Guidelines Manual ("USSG") § 5C1.2(a)(5) did not apply to Cave because of Cave's threats against the witness and because Cave failed to provide a complete proffer to the Government of his involvement in Count One. The district court determined that, due to the statutory

mandatory minimum, Cave had an advisory guidelines range of 120 to 135 months' imprisonment, and the district court sentenced Cave to 128 months' imprisonment. Cave timely noted his appeal.

On appeal, Cave's counsel has filed a brief pursuant to Anders 2

v. California, 386 U.S. 738 (1967). se supplemental brief.

Cave has also filed a pro

In his Anders brief, Cave suggests that the district court erred in concluding that he failed to carry his burden in demonstrating that the USSG § 5C1.2(a) safety valve provision should apply to him. A district court's determination of

whether a defendant has satisfied the safety valve criteria is a question of fact reviewed for clear error. Wilson, 114 F.3d 429, 432 (4th Cir. 1997). United States v. This deferential

standard of review requires 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)). To qualify for the USSG § 5C1.2(a) safety valve

provision, the defendant must establish the existence of the five prerequisites: one criminal history (1) the defendant does not have more than point; (2) the defendant did not use

violence or credible threats of violence in connection with the offense; (3) the offense did not result in death or serious bodily injury; (4) the defendant was not an organizer, leader, manager, provides or the supervisor; Government and with (5) all the defendant the truthfully has

evidence

defendant

concerning the offense.

USSG § 5C1.2(a). 3

Here, the district court's finding that Cave did not qualify for the USSG § 5C1.2(a) safety valve was not clearly erroneous. Cave told the sister-in-law of one of his

co-defendants that if the co-defendant did not keep her mouth shut, her friends and family would "be going down with [him.]" We have reviewed actions, Cave's the the record district to and conclude did a that, not in light err of in of

Cave's finding

court

clearly

statement

constitute

credible

threat

violence.

See USSG § 5C1.2(a)(2).

Moreover, Cave failed to

provide information about his role as a courier in the larger drug conspiracy alleged in the indictment and informed

authorities only about his involvement with one co-defendant. Accordingly, the district court did not err in denying Cave

application of the USSG § 5C1.2 safety valve. Cave has also filed a pro se supplemental brief

raising three claims. counsel was ineffective

First, Cave argues that his appellate in filing an Anders brief, against

Cave's wishes.

Cave's claim is not cognizable on direct appeal

as the record does not conclusively establish that his counsel has rendered ineffective F.3d 233, assistance. 239 (4th See Cir. United 2006). States Cave v.

Baldovinos,

434

next

appears to argue that he qualified for the USSG § 5C1.2 safety valve provision because he supplied the Government with all the information he had regarding his offense. 4 As discussed, the

district court did not clearly err in finding that Cave failed to satisfy USSG § 5C1.2(a)(5). Finally, Cave argues that the

safety valve provision should have been applied to him because his threat was not credible. The district court found otherwise

and that finding was not clearly erroneous. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Cave's conviction and sentence. This court

requires that counsel inform Cave, in writing, of the right to petition review. the Supreme Court of the United States for further

If Cave 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 Cave. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

5