UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4533

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TORIBIO SANDOVAL RIOS,

Defendant – Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Durham. James A. Beaty, Jr., 

Chief District Judge. (1:09-cr-00003-JAB-1)

Submitted: November 22, 2010 Decided: December 27, 2010

Before GREGORY, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Donald Cowan, Jr., Heather Howell Wright, ELLIS & WINTERS, 

LLP, Greensboro, North Carolina, for Appellant. John W. Stone, 

Jr., Acting United States Attorney, Sandra J. 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Unpublished opinions are not binding precedent in this circuit.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:

Toribio Sandoval Rios pleaded guilty, pursuant to a 

written plea agreement, to one count of using a communication 

device to facilitate conspiracy to distribute cocaine, in 

violation of 21 U.S.C. § 843(b) (2006). Under the plea 

agreement, Rios agreed to waive indictment, be charged by an 

information, and to plead guilty to the information. In return, 

the Government agreed to dismiss the superseding indictment, 

which had charged Rios with conspiracy to distribute five 

kilograms or more of cocaine, in violation of 21 U.S.C. § 846 

(2006). The agreement also contained an appellate waiver, 

providing that Rios agreed to waive appeal on any ground except 

ineffective assistance of counsel, prosecutorial misconduct, a 

sentence in excess of the statutory maximum, or a sentence based 

on an unconstitutional factor. 

The district court sentenced Rios to forty-six months’ 

imprisonment, at the bottom of Rios’s U.S. Sentencing Guidelines 

Manual (“USSG”) (2008) range. Rios appealed, and his counsel 

filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), concluding that there are no meritorious grounds for 

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

in failing to question Rios specifically about the appellate 

waiver in his plea agreement. Rios also filed a supplemental 

pro se brief questioning: (1) whether the district court erred 
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when it failed to consider a reduction for acceptance of 

responsibility; (2) whether Rios was entitled to a reduction for 

his mitigating role in the offense; and (3) whether Rios 

qualified for a reduction pursuant to the safety valve 

provision. We ordered supplemental briefing to address whether 

the district court erred in failing to grant Rios a two-level 

reduction pursuant to USSG § 2D1.1(b)(11). Finding no 

reversible error, we affirm.

We first note that the Government has not filed a 

motion to dismiss or otherwise sought to enforce the appellate 

waiver contained in Rios’s plea agreement. This court does not 

enforce appellate waivers sua sponte. See United States v. 

Blick, 408 F.3d 162, 168 (4th Cir. 2005). Accordingly, it is 

not necessary for us to address whether the district court 

should have questioned Rios specifically about the appellate 

waiver.

We also need not address Rios’s contention that the 

district court erred when it failed to consider a reduction for 

acceptance of responsibility, as the record reflects that the 

district court granted such a reduction.

Rios argues that the district court should have 

considered a mitigating role reduction. Under USSG § 3B1.2, a 

defendant can receive a two- or four-level reduction if he was a 

minor or minimal participant in any criminal activity. However, 
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this reduction is unavailable where “a defendant has received a 

lower offense level by virtue of being convicted of an offense 

significantly less serious than warranted by his actual criminal 

conduct.” USSG § 3B1.2 cmt. n.3(B). Here, Rios’s actual 

criminal conduct included participating as a cocaine distributor 

and courier in a conspiracy responsible for the distribution of 

more than five kilograms of cocaine, an offense that would have 

established a base offense level of thirty-two, see USSG 

§ 2D1.1(c)(4), rather than the base offense level of twenty-six 

that he did receive. Because Rios pled guilty to a lesser 

offense and was held accountable for only the amount of cocaine 

actually discussed during the charged communication, a 

mitigating role reduction was unavailable. 

Next, we consider whether the district erred when it 

failed to grant Rios a two-level reduction pursuant to USSG 

§ 2D1.1(b)(11). We review legal questions concerning the 

application of the Guidelines de novo and factual questions for 

clear error. United States v. Manigan, 592 F.3d 621, 626 

(4th Cir. 2010). Rios failed to argue for a safety valve 

adjustment before the district court. When a new claim is 

pursued for the first time on direct appeal, we review for plain 

error. United States v. Lighty, 616 F.3d 321, 365 

(4th Cir. 2010); Fed. R. Crim. P. 52(b). This requires Rios to 

establish: “(1) error, (2) that is plain, and (3) that affects 
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his substantial rights.” Lighty, 616 F.3d at 365 (citing United 

States v. Olano, 507 U.S. 725, 731-32 (1993)).

The Government argues that the safety valve provision 

is inapplicable because Rios has failed to meet the final 

requirement enumerated in USSG § 5C1.2(a). Section 5C1.2(a) 

predicates a two-level reduction on meeting five requirements, 

the final one being that

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 other information to provide or that the 

Government is already aware of the information shall 

not preclude a determination by the court that the 

defendant has complied with this requirement.

USSG § 5C1.2(a)(5). Rios states that it is not clear whether 

the information he provided to secure the acceptance of 

responsibility reduction would satisfy § 5C1.2(a)(5), but he 

argues that the trial court erred in not considering whether 

Rios was eligible for the adjustment. We disagree.

We have held that “the burden rests on the defendant 

to prove that the prerequisites for application of the safety 

valve provision, including truthful disclosure, have been met.” 

United States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 

1996). To meet this burden, Rios must demonstrate “some level 

of affirmative conduct . . . that exceeds merely demonstrating a 
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willingness to cooperate and answer questions.” United States 

v. Ivester, 75 F.3d 182, 185 (4th Cir. 1996). “[A] defendant 

does not meet the requirements of the ‘safety valve’ provision 

merely by meeting with a probation officer during the 

presentence investigation.” United States v. Wood, 378 F.3d 

342, 351 (4th Cir. 2004). Because Rios bears the burden of 

establishing the applicability of the safety valve provision, 

and because the only evidence that he is entitled to an offenselevel adjustment under that provision comes from the presentence 

report, the district court did not err in failing to consider, 

sua sponte, whether the safety valve provision applied to Rios.

In accordance with Anders, we have thoroughly reviewed 

the entire record in this case and have found no meritorious 

issues for appeal. We therefore affirm Rios’s conviction and 

sentence. This court requires that counsel inform Rios, in 

writing, of the right to petition the Supreme Court of the 

United States for further review. If Rios 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 Rios.

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 
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before the court and argument would not aid the decisional 

process.

AFFIRMED