FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 19, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10975

Non-Argument Calendar

________________________

D. C. Docket No. 04-00063-CR-P-NE

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JAMES HOLMES, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

 (December 19, 2005)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

James Holmes appeals his 240-month sentence for conspiracy to possess
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with intent to distribute 50 grams or more of a mixture and substance containing a

detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846, and maintaining a place for the purposes of manufacturing

and distributing a mixture and substance containing a detectable amount of cocaine

base, in violation of 21 U.S.C. § 856(a)(1).

Holmes argues for the first time on appeal that, for the violations of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, a district court may sentence within

the applicable sentencing guidelines range and below the statutory minimum when

the defendant satisfies all five of the safety-valve relief factors found in 18 U.S.C.

§ 3553(f) incorporated in U.S. Sentencing Guidelines Manual § 5C1.2. Holmes

also argues that the district court erred in denying his request for a mitigating role

reduction, pursuant to U.S. Sentencing Guidelines Manual § 3B1.2(a), because he

was plainly the least culpable of the group of co-conspirators.

As will be discussed below, we only need reach Holmes’s first argument

because his second one is moot. We have jurisdiction to review Holmes’s first

issue under United States v. Cruz, 106 F.3d 1553, 1556-57 (11th Cir. 1997). When

an appellant raises a claim of error not objected to before the district court we

review only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 

(11th Cir. 2005), cert. denied, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005). We
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“may not correct an error the defendant failed to raise in the district court unless

there is: (1) error, (2) that is plain, and (3) that affects substantial rights.” Id.

(internal quotation omitted). 

A defendant has the burden of proving his eligibility for relief under the

safety-valve provision. Cruz, 106 F.3d at 1557. To be eligible for the safety-valve

provision, a defendant must satisfy five conditions, the first of which is that he

cannot have more than one criminal history point. 18 U.S.C. § 3553(f); United

States v. Orozco, 121 F.3d 628, 630 (11th Cir. 1997) (per curiam); U.S. Sentencing

Guidelines Manual § 5C1.2.

 We conclude that Holmes did not qualify for a safety-valve reduction

because he had more than one criminal history point. We need not address

Holmes’s second issue because Holmes was sentenced according to the statutory

mandatory minimum sentence. Even if Holmes were entitled to a U.S.S.G.

§ 3B1.2(a) “role reduction,” his sentence would be the same because the statutory

minimum without a safety-valve reduction exceeds the guideline recommendation. 

See Cruz, 106 F.3d at 1555 n.3. Accordingly, we affirm Holmes’s sentence. 

AFFIRMED.