United States of America v. Toriana Marcellus Cave

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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., Winston-
Salem, 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Unpublished opinions are not binding precedent in this circuit.

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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. Five months
later, Cave was arrested on a complaint alleging that he
threatened a Government witness. Thereafter, a superseding
indictment charged Cave with conspiring to distribute five
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
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v. California, 386 U.S. 738 (1967). Cave has also filed a pro
se supplemental brief.
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. United States v.
Wilson, 114 F.3d 429, 432 (4th Cir. 1997). 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: (1) the defendant does not have more than
one criminal history 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, or supervisor; and (5) the defendant truthfully
provides the Government with all evidence the defendant has
concerning the offense. USSG § 5C1.2(a).
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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 the record and conclude that, in light of
Cave’s actions, the district court did not clearly err in
finding Cave’s statement to constitute a credible threat of
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. First, Cave argues that his appellate
counsel was ineffective 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 assistance. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Cave 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. As discussed, the
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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 the Supreme Court of the United States for further
review. 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 contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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