UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5062

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RUSSELL SHIFLETT,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. J. Frederick Motz, District Judge.

(1:06-cr-00252-JFM)

Submitted: November 28, 2007 Decided: December 20, 2007

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Denise C. Barrett, Assistant

Federal Public Defender, Baltimore, Maryland, for Appellant. Rod

J. Rosenstein, United States Attorney, Kwame Jangha Manley, OFFICE

OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Russell Shiflett appeals from his conviction and sixtymonth sentence after pleading guilty to conspiracy to distribute

and possess with intent to distribute 500 grams or more of cocaine,

in violation of 21 U.S.C. § 846 (2000). On appeal, Shiflett’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), asserting that there are no meritorious issues on

appeal, but asking the court to review whether the district court

erred in declining to apply the safety valve provisions pursuant to

U.S. Sentencing Guidelines Manual (“USSG”) § 5C1.2 and 18 U.S.C.A.

§ 3553(f) (West 2000 & Supp. 2007). Shiflett has also filed a pro

se supplemental brief, in which he makes a series of claims

regarding ineffective assistance of counsel and the adequacy of his

Rule 11 hearing. Because our review of the record discloses no

reversible error, we affirm.

Shiflett’s first issue on appeal is whether the district

court erred in failing to apply the safety valve provision and

thereby exempt him from the statutory mandatory minimum sentence of

sixty months’ imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B)

(2000). To qualify for sentencing under the safety valve provision,

a defendant must meet all five criteria set out in 18 U.S.C.

§ 3553(f), and incorporated into USSG § 5C1.2(a). The fifth

requirement of the safety valve is that, before sentencing, “the

defendant has truthfully provided to the Government all information
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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 . . . .” USSG § 5C1.2(a)(5). A defendant must make an

affirmative effort to disclose to the Government everything he

knows concerning the offense before he may be eligible for

sentencing under the safety valve provision. United States v.

Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996). The district court’s

determination of whether a defendant satisfied the safety valve

requirements is a question of fact reviewed for clear error.

United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997).

The district court denied application of the safety valve

on the ground that Shiflett had not been forthcoming about his

dealings with the other individuals involved in the drug

conspiracy. Shiflett contends that his omissions were the result

of imprecise questioning and his “lack of understanding.” However,

as Shiflett concedes, the details of the debriefing sessions are

not contained in the record and therefore cannot be reviewed on

appeal. Furthermore, while Shiflett asserts that his lack of

disclosure was the result of confusion, he has failed to present

any evidence to counter the Government’s contention that he was

evasive in his answers. See Ivester, 75 F.3d at 184-85.

Therefore, we find the district court did not err in determining

Shiflett failed to qualify for application of the safety valve.
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In his pro se supplemental brief, Shiflett raises a

number of claims relating to his counsel’s performance.

Allegations of ineffective assistance of counsel should be raised

in a 28 U.S.C. § 2255 (2000) motion rather than on direct appeal

unless the record conclusively demonstrates ineffective assistance.

United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (internal

citations and quotations omitted). Such a claim cannot be fairly

adjudicated on direct appeal when the appellant has not raised the

issue before the district court and there is no statement from

counsel on the record. United States v. DeFusco, 949 F.2d 114,

120-21 (4th Cir. 1991). We find there is no evidence in the record

to support Shiflett’s allegations. Therefore, we find Shiflett’s

claims must be raised in a § 2255 motion rather than on direct

appeal.

Shiflett also raises a number of claims regarding the

adequacy of his Rule 11 hearing. Because Shiflett did not move in

the district court to withdraw his guilty plea, we review any

challenges to the Rule 11 hearing for plain error. See United

States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).

Shiflett alleges that the plea agreement led him to

believe that the safety valve would be applied in his case and that

the trial court failed to disabuse him of this notion during the

Rule 11 hearing. However, the plea agreement stated that

“Defendant can argue for a two-level reduction of his sentence
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pursuant to USSG § 5C1.2,” and that the Government was free to

oppose such a reduction. Furthermore, the district court informed

Shiflett of the mandatory minimum sentence of five years while

noting that he could argue for a two-level reduction under the

safety valve provision, which would also permit him to be sentenced

below the mandatory minimum. Accordingly, Shiflett’s claim is

meritless.

Shiflett next claims that his plea was not knowing and

voluntary because he was not properly notified of his rights and

was under the influence of medication following surgery. For

medication to render a defendant incompetent, his mental faculties

must have been so impaired that he was “incapable of full

understanding and appreciation of the charges against him, of

comprehending his constitutional rights, and of realizing the

consequences of his plea.” United States v. Truglio, 493 F.2d 574,

578-79 (4th Cir. 1974) (internal quotation and citation omitted).

When a district court is informed that a defendant is under the

influence of medication, the court has a duty to make further

inquiry into the defendant’s competence to plead guilty. United

States v. Damon, 191 F.3d 561, 564 (4th Cir. 1999). When a

defendant’s answers raise a “red flag” regarding his mental state,

the court must expand its inquiry to ensure that the plea is being

made knowingly and voluntarily. Id. at 565.
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Shiflett did not assert he was under the influence of

medication at the time of the hearing; rather, he stated he had

taken pain medication on the day before the hearing. In any event,

the district court did inquire as to Shiflett’s status, as he

stated only that he was a “little sore” and felt he was able to

continue with the hearing. In contrast to Damon, none of the

answers provided by Shiflett or his counsel raised any “red flags”

regarding adverse effects on his mental state that may have

resulted from the prior use of medication. See Damon, 191 F.3d at

565. There is no indication from the Rule 11 colloquy that

Shiflett did not understand his rights or the charges against him,

and while Shiflett contends on appeal that he would not have pled

guilty had he not taken the narcotics, he provides no support for

this assertion. Accordingly, the district court did not err in its

inquiry regarding Shiflett’s competence.

Shiflett also contends the court should have explained

his rights under Rule 11 prior to inquiring as to whether he wished

to enter a guilty plea and the Rule 11 colloquy failed to inform

him that he had a right to “present evidence.” Shiflett apparently

asserts the district court failed to comply with Rule 11(b)(1)(E),

which requires that the defendant be informed of his “right at

trial to confront and cross-examine adverse witnesses, to be

protected from compelled self-incrimination, to testify and present

evidence, and to compel the attendance of witnesses.” At the
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hearing, the district court informed Shiflett of his right to

testify and to present and cross-examine witnesses. While the

district court did not specifically mention the right to “present

evidence,” Shiflett has not demonstrated that this minor omission

affected his decision to plead guilty. See United States v.

Martinez, 277 F.3d 517, 532 (4th Cir. 2002). Accordingly, Shiflett

has failed to demonstrate that the district court plainly erred

during the Rule 11 colloquy.

Shiflett’s next claim is that the trial court was not

aware of its authority pursuant to United States v. Booker, 543

U.S. 220 (2005), to sentence him below the mandatory minimum even

without application of the safety valve. However, the district

court could not sentence Shiflett below the statutory mandatory

minimum unless it first determined that he had met the requirements

for the safety valve. See United States v. Robinson, 404 F.3d 850,

862 (4th Cir. 2005). Accordingly, Shiflett’s claim is meritless.

Finally, Shiflett claims the conspiracy charge is void

because all of the other parties to the conspiracy were government

agents. Shiflett asserts that Justin “Randy” Popielasz, who was

identified in the information and the plea agreement as a member of

the drug conspiracy, was a confidential government informant.

However, this matter was addressed during the sentencing hearing.

The Government explained that despite Shiflett’s personal beliefs,

Popielasz was not a government informant. While Shiflett persists
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in his allegation that Popielasz was serving as a government agent,

there is no evidence in the record to support this contention.

Accordingly, Shiflett’s claim is without merit.

In accordance with Anders, we have reviewed the record

and have found no meritorious issues for appeal. We therefore

affirm Shiflett’s conviction and sentence. Additionally, we deny

Shiflett’s motion for bail pending appeal as moot. This court

requires counsel inform his client, in writing, of his right to

petition the Supreme Court of the United States for further review.

If the client 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 the

client. 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