United States v. Berry , 32 F. App'x 46 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4457
HANK WILLIAM BERRY, a/k/a Hankie,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-00-185)
Submitted: February 20, 2002
Decided: March 8, 2002
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
C. Louise Ball, BALL & BALL, P.C., Alexandria, Virginia, for
Appellant. Kasey Warner, United States Attorney, Monica K.
Schwartz, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
2 UNITED STATES v. BERRY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Hank William Berry appeals his conviction and sentence for con-
spiracy to distribute more than fifty but less than 100 kilograms of
marijuana in violation of 21 U.S.C. § 846 (1994). Finding no revers-
ible error, we affirm.
First, Berry claims that the district court clearly erred in concluding
that he was competent at the time he entered his guilty plea. Our
review of the record convinces us that Berry understood the nature of
the Rule 11 colloquy, the charges against him, and the consequences
of his plea. Although Berry admitted that he was taking prescription
medication at night, we find that the district court asked appropriate
follow-up questions as required by United States v. Damon, 191 F.3d
561, 564 (4th Cir. 1999), and properly ascertained Berry’s compe-
tence. Accordingly, we find that the district court did not clearly err
in finding Berry to be competent at his guilty plea hearing. See Dusky
v. United States, 362 U.S. 402, 402 (1960); United States v. Truglio,
493 F.2d 574, 578 (4th Cir. 1974).
Second, Berry claims that the district court erred in determining the
quantity of controlled substances attributable to him as relevant con-
duct. Based on a finding that the total relevant conduct in his case was
at least sixty kilograms but less than eighty kilograms of marijuana,
the probation officer calculated a base offense level of twenty-two.
See U.S. Sentencing Guidelines Manual ("USSG") § 2D1.1(c)(9)
(2000). Because Berry admitted that "the amount of calculated rele-
vant is correct" and admitted to relevant conduct involving at least
sixty kilograms of marijuana in his objections to the presentence
report ("PSR"), we find this claim is without merit.
Third, Berry claims that the district court erred by assessing a two-
level enhancement for possession of a dangerous weapon during a
UNITED STATES v. BERRY 3
drug offense pursuant to USSG § 2D1.1(b)(1). A defendant may
receive an enhancement under this Guideline for a firearm possessed
by a co-conspirator if it is not clearly improbable that the weapon was
connected with the drug offense. See USSG § 2D1.1, comment. (n.3);
United States v. Hunter, 19 F.3d 895, 896 (4th Cir. 1994); United
States v. Falesbork, 5 F.3d 715, 720 (4th Cir. 1993). Because the
record on appeal reveals that Berry was aware that two of his co-
conspirators (the Owen brothers) "had guns, dealt dope and took their
guns with them to their drug deals," we find that the district court did
not clearly err in imposing the enhancement.
Fourth, Berry contends that the district court erred in imposing an
enhancement pursuant to USSG § 3B1.1(c) for his role in the offense.
We review for plain error because Berry did not raise this issue before
the district court. See United States v. Olano, 507 U.S. 725 (1993).
Under USSG § 3B1.1(c), a two-level adjustment is to be given if the
defendant was an organizer, leader, manager, or supervisor of any
criminal activity that did not involve five or more participants and
was not otherwise extensive. Because an intercepted conversation
between Berry and Harry Owen indicated that Berry supervised at
least one individual who transported drugs on his behalf, we cannot
conclude that any plain error occurred.
Fifth, Berry argues that the district court improperly assessed crim-
inal history points for two prior felony convictions that were related
under USSG § 4A1.2 because they were consolidated for sentencing
purposes. Berry’s two assault convictions occurred on two separate
occasions, involved different victims, bore different docket numbers,
and, although the sentences were imposed to run concurrently, the
cases were not formally consolidated. In order to qualify as a consoli-
dated case, the sentencing court must enter a formal order consolidat-
ing the cases for sentencing. United States v. Allen, 50 F.3d 294, 297-
98 (4th Cir. 1995). We therefore conclude that the district court did
not clearly err in finding that Berry’s assault convictions were not
related for purposes of calculating his criminal history points under
the Sentencing Guidelines.
Sixth, Berry contends that two prior convictions for DUI should
not have been counted in calculating his criminal history category
because the probation officer failed to indicate whether he was repre-
4 UNITED STATES v. BERRY
sented by counsel. Because Berry did not present this argument to the
district court, we review for plain error. See Olano, 507 U.S. at 732-
37. While a defendant may challenge at sentencing the validity of a
prior conviction on the ground that he was denied counsel, Custis v.
United States, 511 U.S. 485, 495 (1994), he bears the burden of show-
ing that the prior conviction is invalid. United States v. Jones, 977
F.2d 105, 110 (4th Cir. 1992). Because Berry does not even affirma-
tively state whether he was represented by counsel, we find that he
has not met this burden and therefore no plain error occurred.
Finally, Berry raises six claims of ineffective assistance of trial
counsel. Such claims are generally not cognizable on direct appeal.
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to
allow for adequate development of the record, Berry must bring his
ineffective assistance claims in a motion under 28 U.S.C.A. § 2255(West Supp. 2001). See id.; United States v. Hoyle, 33 F.3d 415, 418
(4th Cir. 1994). An exception exists when the record conclusively
establishes ineffective assistance. King, 119 F.3d at 295. Because
review of the record in this appeal does not conclusively establish
ineffective assistance of counsel, we find that these claims are not
cognizable on appeal.
Accordingly, we affirm Berry’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