United States v. Demitreus Herbert

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4069
DEMITREUS ANTRON HERBERT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-96-66)
Submitted: July 20, 1999
Decided: August 10, 1999
Before HAMILTON and KING, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
David I. McCaskey, LAW OFFICE OF DAVID I. MCCASKEY,
Staunton, Virginia, for Appellant. Robert P. Crouch, Jr., United States
Attorney, Donald R. Wolthuis, Assistant United States Attorney, Roa-
noke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Demitreus Antron Herbert appeals his guilty plea conviction for
conspiracy to possess with intent to distribute cocaine base (crack),
in violation 21 U.S.C. §§ 841(a)(1), 846 (1994). Finding no error, we
affirm.
On appeal, Herbert contends for the first time that the district court
erred at sentencing in considering a statement of codefendant Billy
Wells, as recounted by Agent Small, that Herbert continued to be
involved in the conspiracy after 1994. We find no plain error in the
consideration of the statement at sentencing. See United States v.
Olano, 507 U.S. 725, 732-37 (1993); United States v. Jones, 31 F.3d
1304, 1316 (4th Cir. 1994).
Herbert also asserts that the district court erred in imposing a sen-
tence that was just as severe or more severe than other codefendants
who had more significant roles in the conspiracy than he did. The sen-
tencing court need not consider the sentence of a codefendant when
imposing sentence. See United States v. Foutz , 865 F.2d 617, 621 (4th
Cir. 1989); United States v. Truelove, 482 F.2d 1361, 1361-62 (4th
Cir. 1973). To the extent that Herbert challenges the district court's
refusal to depart downward based on his codefendant's sentence, dis-
parity of sentences among codefendants is not a ground for downward
departure absent prosecutorial misconduct, which is not alleged here.
See United States v. Fonville, 5 F.3d 781, 783-84 (4th Cir. 1993). We
find, therefore, that the district court did not err in imposing Herbert's
sentence.
Last, Herbert asserts that counsel was ineffective for failing to
object to hearsay statements at sentencing and for failing to call addi-
tional character witnesses at sentencing. These claims should be
raised in a motion under 28 U.S.C.A. § 2255 (West Supp. 1999), and
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not on direct appeal, because the record does not conclusively show
that counsel was ineffective. See United States v. King, 119 F.3d 290,
295 (4th Cir. 1997) (providing standard).
Accordingly, we affirm Herbert's sentence. We grant Herbert's
motion to submit the case on briefs and 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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