UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5709

FREDERICK LA'ROMA JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CR-93-28-MU)

Submitted: July 23, 1996

Decided: August 8, 1996

Before WIDENER and MURNAGHAN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Calvin E. Murphy, MURPHY & CHAPMAN, P.A., Charlotte, North

Carolina, for Appellant. Mark T. Calloway, United States Attorney,

Robert J. Higdon, Jr., Assistant United States Attorney, Charlotte,

North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Frederick Johnson appeals the district court's order sentencing him

to the statutory minimum of ten years for his role in a drug distribution ring. Johnson contends that the district court erred in failing to

sentence him below the mandatory minimum under the recently

enacted "safety-valve" provision of the sentencing guidelines.

Because Johnson did not affirmatively act to provide the government

with all the information he had concerning his offenses, we affirm his

sentence.

Johnson pled guilty to one count of conspiracy to possess with

intent to distribute and to distribute cocaine and cocaine base. At the

time of sentencing, all but one of Johnson's co-defendants had

entered pleas of guilty. Johnson had not made a statement, nor had he

made an effort to make a statement to law enforcement officials

regarding the details of his involvement in the drug distribution ring.

According to Johnson, however, it appeared from the government's

discovery file that everything Johnson knew about the conspiracy had

already been disclosed to investigating agents.

The mandatory minimum sentence for Johnson's offense was 120

months. Johnson's guideline range was 87-108 months. In his sentencing memorandum, Johnson maintained that he qualified for a sentence below the mandatory minimum under the safety valve

guideline, USSG § 5C1.2,* although he had not provided information

to the government about the offense. At sentencing, Johnson asserted

that the government already knew all about the conspiracy when he

began plea negotiations and did not ask him to provide information.

Johnson argued that he should not be penalized for having no useful

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*United States Sentencing Commission, Guidelines Manual (Nov.

1994). Johnson was sentenced in September 1995.

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information to give. The district court temporarily considered suspending the hearing to provide Johnson with the opportunity to be

debriefed by government agents. The government responded that

Johnson had already been given the opportunity to provide information and failed to come forward. The district court determined that,

because Johnson failed to affirmatively approach the government, he

did not qualify for the safety valve provision.

A defendant convicted of an offense under 21 U.S.C.A. § 846

(West 1981 & Supp. 1996) may be sentenced within the guideline

range without regard to any statutory minimum sentence if he meets

the five criteria set out in 18 U.S.C.A. § 3553(f) (West Supp. 1996),

and USSG § 5C1.2. Johnson did not comply with the fifth criteria,

which required him to provide to the government, no later than sentencing, all information concerning the offense or offenses that were

part of the same common scheme or plan or same course of conduct.

This court has previously held that to comply with 18 U.S.C.A.

§ 3553(f)(5), identical to USSG § 5C1.2(5), a defendant has "the burden of affirmatively acting, no later than sentencing, to ensure that the

Government is truthfully provided with all information and evidence

[the defendant has] concerning the relevant crimes," even if his information is of no use to the government and even if the government

does not seek to debrief him. United States v. Ivester, 75 F.3d 182,

185-86 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3837 (U.S.

June 17, 1996) (No. 95-8998). Johnson acknowledges that he did not

do this, but argues that his willingness to cooperate was enough. In

accordance with Ivester, we hold that it was not.

For the foregoing reasons, we affirm the judgment of the district

court. 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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