United States v. Houser ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4333
RUFUS HOUSER, a/k/a Pookie,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-12)
Submitted: March 17, 1998
Decided: May 8, 1998
Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Paul G. Taylor, HENRY, TAYLOR & JANELLE, Martinsburg, West
Virginia, for Appellant. William D. Wilmoth, United States Attorney,
Paul T. Camilletti, Assistant United States Attorney, Wheeling, West
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Rufus Houser appeals the judgment entered pursuant to his plea of
guilty to possession with intent to distribute crack cocaine in violation
of 21 U.S.C. § 841(a)(1) (1994).* Houser contends that he did not
have close assistance of competent counsel because his counsel failed
to investigate prior to sentencing whether there was sentence entrap-
ment or sentence manipulation; therefore, he claims the district court
abused its discretion in denying his Fed. R. Crim. P. 32(e) motion.
Finding no abuse of discretion, we affirm.
To the extent that Houser advances ineffective assistance of coun-
sel as the basis for challenging the district court's denial of his motion
to withdraw his guilty plea, we determine whether the district court
abused its discretion in concluding that there was not a "fair and just"
reason for allowing him to withdraw his guilty plea. See United States
v. Lambey, 974 F.2d 1389, 1393 (4th Cir. 1992); United States v.
DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989). A"fair and just" reason
is one that challenges either the fairness of the Fed. R. Crim. P. 11
colloquy or the fulfillment of a promise arising from the Rule 11 hear-
ing. See Lambey, 974 F.2d at 1394. For ineffective assistance of coun-
sel to constitute a fair and just reason to withdraw a guilty plea, it
must be of constitutional magnitude. See id. at 1394. The defendant
must show that his counsel's performance fell "``below an objective
standard of reasonableness,'" and that but for counsel's alleged sub-
standard performance, "``there is a reasonable probability that [the
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*Houser originally agreed to plead guilty to aiding and abetting with
intent to distribute crack on March 23, 1995, in violation of 21 U.S.C.
§ 841(a)(1), 18 U.S.C. § 2 (1994). At his Rule 11 hearing, Houser would
not plead guilty to this count. After conferring with his counsel, Houser
agreed to plead guilty to possession with the intent to distribute crack in
the Winter of 1994 in violation of 21 U.S.C. § 841(a)(1) (1994).
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Defendant] would not have pleaded guilty.'" United States v. Craig,
985 F.2d 175, 179 (4th Cir. 1993) (quoting DeFreitas, 865 F.2d at
82).
Houser contends that his counsel did not investigate potential
claims of sentencing entrapment or manipulation. However, he does
not allege that there was evidence to support either of these potential
claims. Nor does he aver that but for counsel's alleged substandard
performance in not investigating sentencing issues, he would not have
pleaded guilty. Furthermore, Houser raises no objection to the Fed. R.
Crim. P. 11 hearing or to the accuracy and adequacy of the informa-
tion presented to him there. He fails to claim that any promises were
not fulfilled. Our review of the record reveals that the district court
conducted a complete and thorough Rule 11 hearing prior to accept-
ing Houser's guilty plea. We therefore conclude that the district court
did not abuse its discretion in denying Houser's motion to withdraw
his plea of guilty on the ground of not having close assistance of com-
petent counsel. See Craig, 985 F.2d at 179-80; Lambey, 974 F.2d at
1393.
To the extent that Houser raises a claim of ineffective assistance of
counsel separate and distinct from his Rule 32(e) claim, he must do
so under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997) in the district
court and not on direct appeal, unless it conclusively appears from the
record that defense counsel did not provide effective representation.
See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).
Because the record here fails to establish conclusively that Houser's
attorney rendered ineffective assistance, Houser must bring this claim
in a § 2255 motion.
Accordingly, we affirm Houser's conviction and sentence. We dis-
pense 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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