UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4052

DEREK SHANNON WALLS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CR-00-115-BO)

Submitted: July 26, 2001

Decided: August 16, 2001

Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Stephen C. Gordon, Assistant Federal Public Defender, Raleigh,

North Carolina, for Appellant. John Stuart Bruce, United States Attorney (Interim), Anne M. Hayes, Assistant United States Attorney,

Ethan A. Ontjes, Assistant United States Attorney, Raleigh, North

Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

During 1998 and 1999, investigating agents made four undercover

purchases totaling 225 grams of cocaine base (crack) from Derek

Shannon Walls. In April 1999, Walls was arrested with 119 grams of

crack in his possession. He pled guilty to possession of 119 grams of

crack, 21 U.S.C.A. § 841(a) (West 1999), and received a sentence of

135 months imprisonment. Walls appeals his sentence, contending

that the district court plainly erred in failing to sentence him under the

safety valve provision, U.S. Sentencing Guidelines Manual § 5C1.2

(2000), and that his due process rights were violated in that his

offense level was increased based on relevant conduct that was not

charged in the indictment or admitted by him. Walls has also moved

for leave to file a pro se supplemental brief. We grant leave to file the

supplemental brief, and affirm. 

Walls asserts that he was entitled to be sentenced under the safety

valve provision because he admitted possessing illegal drugs. Because

Walls failed to raise application of the safety valve provision in the

district court, our review is for plain error. United States v. Olano,

507 U.S. 725, 732-35 (1993). The safety valve provision permits a

sentence below a statutory minimum sentence* if the defendant meets

five criteria, one of which is that, by the time of sentencing, 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 . . . ." 18 U.S.C.A. § 3553(f)(5) (West 2000); USSG § 5C1.2.

The district court inquired at sentencing whether Walls was cooperating, and the government stated that he was not. 

*The mandatory minimum sentence in Walls’ case was 120 months;

he received a sentence of 135 months. However, had Walls met the

criteria in § 5C1.2, his offense level could have been reduced by two

levels under § 2D1.1(b)(6). 

2 UNITED STATES v. WALLS
A defendant has the burden of showing that he has met the criteria

in § 5C1.2. United States v. Wilson, 114 F.3d 429, 432 (4th Cir.

1997). With respect to the requirement that he provide truthful information to the government about the offense and all related criminal

conduct, the defendant may not wait to be debriefed by the government, but must act affirmatively to ensure that he has provided to the

government all the relevant information he has before he is sentenced.

United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996). Walls

clearly did not meet this requirement. Consequently, the district court

did not plainly err in failing to consider the application of § 5C1.2. 

Walls also asks that we reconsider our holding in United States v.

Kinter, 235 F.3d 192, 199-201 (4th Cir. 2000), cert. denied, 121 S. Ct.

1393 (2001). In Kinter, we held that the government is not required

under Apprendi v. New Jersey, 530 U.S. 466 (2000), to submit to a

jury and prove beyond a reasonable doubt facts underlying sentence

enhancements that increase the guideline range but do not increase the

statutory maximum sentence. 235 F.3d at 201-02. We further found

that the relevant "maximum" sentence is the statutory maximum, not

the maximum sentence under the guidelines. Id. at 201. Walls urges

us to reconsider the holding in Kinter. However, a panel may not

overrule the decision of a prior panel in this circuit. Brubaker v. City

of Richmond, 943 F.2d 1363, 1381-82 (4th Cir. 1991). 

In his pro se supplemental brief, Walls claims that he received ineffective assistance of counsel in connection with his guilty plea and

sentencing. We have held that ineffective assistance claims are only

appropriate on direct appeal when it "conclusively appears" from the

record that defense counsel did not provide effective representation.

United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994). Here,

the record does not conclusively demonstrate that defense counsel

was ineffective. Therefore, the claim is better raised in a motion to

vacate pursuant to 28 U.S.C.A. § 2255 (West Supp. 2001). 

We therefore affirm the sentence. We grant Walls’ motion to file

the pro se supplemental brief. 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

UNITED STATES v. WALLS 3