United States v. Spivey , 64 F. App'x 905 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4757
LAWRENCE SPIVEY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-01-786)
Submitted: May 20, 2003
Decided: June 13, 2003
Before WIDENER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Bradley Bennett, SALVINI & BENNETT, L.L.C., Pickens, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States Attor-
ney, Alfred W. Bethea, Jr., Assistant United States Attorney, Flor-
ence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SPIVEY
OPINION
PER CURIAM:
Lawrence Spivey appeals his convictions and sentence after a jury
convicted him of one count of possession with intent to distribute less
than five grams of crack cocaine, and one count of simple possession
of less than five grams of crack cocaine, both in violation of 21
U.S.C. § 841(a)(1) (2000); and one count of possession of a firearm
after having been convicted of a crime punishable by imprisonment
for more than one year, in violation of 18 U.S.C. §§ 922(g), 924(e)
(2000). Finding no error, we affirm.
Spivey first argues that the district court erred in denying his
motion to suppress evidence seized on March 31, 1999. Spivey asserts
that the police officers who stopped him did not possess the requisite
reasonable suspicion that he was engaged in illegal activity. The fac-
tual findings underlying a motion to suppress are reviewed for clear
error, while the legal determinations are reviewed de novo. See
Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v.
Rusher, 966 F.2d 868, 873 (4th Cir. 1992). When a suppression
motion has been denied, we review the evidence in the light most
favorable to the Government. See United States v. Seidman, 156 F.3d
542, 547 (4th Cir. 1998).
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that,
in order to conduct an investigatory stop of an individual, a police
officer must have an objectively reasonable suspicion of criminal
activity. Id. at 20-22. The Court subsequently held that, in evaluating
police conduct in a Terry stop, reviewing courts "must look at the
‘totality of the circumstances’ of each case to see whether the detain-
ing officer has a ‘particular and objective basis’ for suspecting legal
wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002)
(quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Our
review of the record of the suppression hearing convinces us that the
officers possessed reasonable suspicion that Spivey was driving on a
suspended license, and were justified in pursuing and stopping him.
The district court correctly denied Spivey’s motion to suppress.
Spivey next contends that the district court erred in denying his
motion to relieve counsel, and that this denial resulted in Spivey
UNITED STATES v. SPIVEY 3
receiving ineffective assistance of counsel. Although he captions this
portion of his argument as contesting the denial of a motion to relieve
counsel, Spivey’s argument is limited to the issue of ineffective assis-
tance of counsel. Spivey has therefore waived review of the denial of
his motion to relieve counsel by failing to properly argue that issue.
See Fed. R. App. P. 28(a)(9).
Claims of ineffective assistance of counsel are generally not cogni-
zable on direct appeal. See United States v. King, 119 F.3d 290, 295
(4th Cir. 1997). Rather, to allow for adequate development of the
record, a defendant must bring his claim in a motion under 28 U.S.C.
§ 2255 (2000). See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th
Cir. 1994). An exception exists when the record conclusively estab-
lishes ineffective assistance. See King, 119 F.3d at 295. We have
reviewed the record and conclude that it does not conclusively dem-
onstrate that counsel’s performance was deficient.
Spivey’s final argument is that the district court erred in determin-
ing that his two previous convictions for crack cocaine distribution
were separate convictions that served as predicates for sentencing as
an Armed Career Criminal under 18 U.S.C. § 924(e) (2000). Review
of a district court’s application of a statutory sentencing enhancement
is de novo. United States v. Letterlough, 63 F.3d 332, 334 (4th Cir.
1995). In Letterlough, we adopted the majority test for determining
whether convictions occur on different occasions. According to that
test, "[c]onvictions occur on occasions different from one another if
each of the prior convictions arose out of a separate and distinct crim-
inal episode." Id. at 335 (internal quotation marks and citation omit-
ted); see also United States v. Blackwood, 913 F.2d 139, 146 (4th Cir.
1990). In this case, the district court correctly applied Letterlough and
concluded that Spivey’s two drug distribution convictions were sepa-
rate for purposes of sentencing under § 924(e).
We therefore affirm Spivey’s convictions 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