United States v. Souverain

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4388
JOHN MICHAEL SOUVERAIN, a/k/a
Cutty,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-95-75)
Submitted: April 21, 1998
Decided: May 5, 1998
Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Michelle M. M. Price, KING, ALLEN & GUTHRIE, Charleston,
West Virginia, for Appellant. Rebecca A. Betts, United States Attor-
ney, Michael L. Keller, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
John Michael Souverain pleaded guilty to conspiracy to distribute
and to possess with intent to distribute cocaine base (crack), 21
U.S.C. § 846 (1994). The district court sentenced Souverain to ninety-
six months in prison, to be followed by supervised release of five
years. Souverain appeals his conviction and sentence.* His attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), raising three issues for appeal but stating that, in her
view, there are no meritorious issues for appeal. Souverain has filed
a pro se brief claiming ineffective assistance of counsel. Finding no
error, we affirm.
In late 1993, the West Virginia State Police began investigating the
distribution of cocaine base in Fayette County, West Virginia. Investi-
gators discovered that Souverain was a member of a drug distribution
operation headed by Dennis "Shabba" Burke. Confidential informants
purchased 2.73 grams of crack from Souverain on three occasions; the
transactions were recorded through the use of body wire transmitters
which the informants wore. Additionally, Souverain made several
out-of-state trips at the direction of Burke to acquire crack for sale in
West Virginia. Reliable evidence established that 252 grams of
cocaine base was attributable to Souverain as relevant conduct.
Counsel raises three issues on appeal. None of the issues has merit.
_________________________________________________________________
*The district court imposed judgment originally on December 18,
1995. Souverain filed a 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998)
motion, claiming that his attorney had failed to file a notice of appeal as
he had requested. By order entered May 14, 1997, the district court
vacated and immediately reinstated Souverain's original sentence, with
credit for time served. See United States v. Peak, 992 F.2d 39 (4th Cir.
1993). Souverain noted a timely appeal from that judgment.
2
First, the record discloses full compliance with Fed. R. Crim. P. 11
at Souverain's plea proceeding. The district court discussed the ele-
ments of the offense, explored the factual basis for the plea, ensured
that Souverain had consulted with his attorney, ascertained that he
understood the rights he waived by virtue of his plea, and determined
that Souverain entered his plea freely and voluntarily.
Similarly, the record reveals that Souverain, who did not object to
the statements in the presentence investigation report, was sentenced
in accordance with the sentencing guidelines. We have observed that
"cocaine base" and "crack" are used interchangeably and refer to the
same particularly harmful form of cocaine and have found that the
more severe penalties for offenses involving crack (or cocaine base)
than those involving cocaine powder are constitutional. See United
States v. Fisher, 58 F.3d 96, 98-99 (4th Cir. 1995); see also U.S. Sen-
tencing Guidelines Manual § 2D1.1(c), note (D) (1997). Finally, sen-
tencing Souverain for the amount of crack that was reasonably
foreseeable to him violated neither double jeopardy nor due process
principles. See United States v. Rodriguez-Gonzalez, 899 F.2d 177,
179-82 (2d Cir. 1990); Williams v. Oklahoma, 358 U.S. 576, 584-85
(1959).
In his pro se supplemental brief, Souverain raises three claims of
ineffective assistance of counsel. A claim of ineffective assistance of
counsel is cognizable on direct appeal only where counsel's deficient
performance plainly appears on the face of the record. See United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). The record does
not establish that counsel's performance was deficient. Therefore,
Souverain should raise his claims in a motion brought pursuant to 28
U.S.C.A. § 2255.
Finding no error on the record before us, we affirm Souverain's
conviction and sentence. This court requires that counsel inform her
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 repre-
sentation. Counsel's motion must state that a copy thereof was served
on her client. We dispense with oral argument because the facts and
3
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
4