United States v. Green ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5221
DARYL LAMONT GREEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-94-247)
Submitted: March 12, 1996
Decided: April 4, 1996
Before HALL and NIEMEYER, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael A. Grace, Lisa S. Costner, GRACE & COSTNER, P.A.,
Winston-Salem, North Carolina, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Clifton T. Barrett, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Daryl Green appeals from a district court judgment entered pursu-
ant to his guilty plea convicting him of distributing cocaine base, in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) (1988). Counsel has
filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967),
raising issues relating to Green's sentencing, but stating that in his
view there are no meritorious issues on appeal. Green has filed a sup-
plemental brief raising additional issues.
Initially, we reject counsel's contention that the district court erred
by applying a two-level enhancement for possession of a firearm pur-
suant to U.S.S.G. § 2D1.1(b)(1). Counsel contends that Green did not
"possess" the firearm during his sale of cocaine base to an undercover
officer, because the sale took place inside a restaurant, and during the
sale the firearm was outside in his vehicle, which was parked in the
restaurant parking lot. We note, however, that a defendant "possesses"
a firearm for purposes of section 2D1.1(b)(1) if the weapon was
merely "present," unless it is clearly improbable that the weapon was
connected with the offense. In United States v. Hunter, 19 F.3d 895(4th Cir. 1994), we affirmed a section 2D1.1(b)(1) enhancement
where the defendant "could reasonably have foreseen that a firearm
would be present in a car that was picking him up after a drug transac-
tion." Id. at 896. We concluded that we could not say that it was
clearly improbable that the firearm located under the passenger seat
of the car the defendant entered was connected with the defendant's
drug offense. Id. Similarly, we cannot do so here. Because the district
court's determination that a firearm was present so as to justify an
enhancement was not clearly erroneous, see United States v. Apple,
915 F.2d 899, 914 (4th Cir. 1990), we affirm the enhancement.
Counsel further argues that, in sentencing Green, the district court
should have applied the lesser statutory penalties applicable to the dis-
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tribution of cocaine rather than the more severe penalty for cocaine
base. He avers that because cocaine and cocaine base are definition-
ally identical, the statute's provision for differing punishments is
unconstitutionally vague, and that therefore the rule of leniency
should be applied and the lesser penalty for cocaine imposed. We
have recently considered and rejected this specific argument. See
United States v. Fisher, 58 F.3d 96, 98-99 (4th Cir. 1995).
Regarding the arguments in Green's supplemental brief, we note
that there is no indication or allegation in the record that Green's
claim that he was selectively prosecuted on the basis of his race was
ever raised prior to trial. As such, this claim appears to have been
waived. See United States v. Schmidt, 935 F.2d 1440, 1450 (4th Cir.
1991). In any event, however, we have reviewed Green's contentions
in this vein and find that he has failed to show that he has been sin-
gled out while others similarly situated have not been prosecuted, or
that the decision to prosecute him was invidious or made in bad faith.
Id. at 1449. We therefore reject his claim of selective prosecution.
Green also challenges the effectiveness of his counsel. Ineffective
assistance claims, however, are improperly raised on direct appeal
unless it "conclusively appears" from the record that defense counsel
did not provide effective representation. See United States v.
Williams, 977 F.2d 866, 871 (4th Cir. 1992). Ineffective assistance is
not apparent from the record in this case.
Accordingly, we affirm the conviction and sentence imposed by the
district court. In accordance with Anders, we have examined the
entire record in this case and find no meritorious issues for appeal.
This court requires that 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. Coun-
sel's motion must state that a copy thereof was served on the client.
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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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