United States v. Torrence ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4858
JAMES B. TORRENCE, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Joseph Robert Goodwin, District Judge.
(CR-96-180)
Submitted: January 26, 1999
Decided: March 10, 1999
Before MURNAGHAN, WILKINS, and NIEMEYER,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Donald Lee Pitts, Beckley, West Virginia, for Appellant. Rebecca A.
Betts, United States Attorney, John L. File, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James B. Torrence, Jr., appeals his conviction and sentence for his
role in a conspiracy to distribute and to possess with intent to distrib-
ute crack cocaine. See 21 U.S.C. § 846 (1994). Torrence pled guilty
pursuant to a written plea agreement to his role as a middleman in a
sizable crack cocaine ring in and around Beckley, West Virginia.
Investigating officers arrested Torrence after he sold crack cocaine to
a confidential informant and later to an undercover West Virginia
state policeman. Following his arrest, and after officers warned him
regarding his rights against self-incrimination, Torrence admitted that
he had been involved in approximately 500 purchases of crack
cocaine during the summer of 1996 alone.
In light of this admission, Torrence's appointed counsel advised
Torrence to plead guilty to one of the four charges brought against
him in the federal indictment. The district court conditionally
accepted Torrence's plea at a thorough Fed. R. Crim. P. 11 hearing.
Apparently dissatisfied with his plea, Torrence retained counsel on his
own. Torrence's new counsel moved to withdraw the guilty plea,
arguing primarily that Torrence's former counsel was ineffective.
After denying the motion, the district court entered a judgment of
guilty as a result of Torrence's earlier plea. Without objection, the
district court adopted the factual findings of the presentence investi-
gation report and sentenced Torrence to 210 months in prison on the
basis of a Total Offense Level of 32 and Criminal History Category
of VI. Torrence appeals his conviction and sentence.
In this direct appeal, Torrence advances a claim of ineffective
assistance of counsel by suggesting that his former counsel failed to
properly investigate the circumstances of the crime and generally
failed to communicate with Torrence regarding the case against him.
Because the criminal record is usually inadequate to resolve issues of
ineffective assistance, they are generally more suitable for collateral
review. See United States v. Tatum, 943 F.2d 370, 379 (4th Cir.
1991). This court may entertain a claim attacking the competency of
counsel only where the ineffectiveness is apparent from the trial
record and prior evidentiary hearings are not required. See id. at 380
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(citing United States v. Grandison, 783 F.2d 1152, 1156-67 (4th Cir.
1986)). For a claim of ineffective assistance of counsel to be heard on
direct appeal, it must "conclusively appear[ ] in the trial record itself
that the defendant was not provided with effective representation."
United States v. Hanley, 974 F.2d 14, 16 n.2 (4th Cir. 1992) (citing
United States v. Mandello, 426 F.2d 1021 (4th Cir. 1970)).
No such error conclusively appears in this case. Torrence claims
that his counsel failed to conduct a proper investigation into the cir-
cumstances of his offense and his inculpatory statements. Torrence
also suggests that counsel did not communicate effectively and did
not explain the government's case with sufficient specificity. Beyond
that, the record is bereft of what defenses a more diligent investiga-
tion might have uncovered or how Torrence was prejudiced by coun-
sel's failure to communicate more freely. As in Tatum, the record
"reveals only ambiguous symptoms" of Torrence's allegations of inef-
fective assistance "which cannot be adequately addressed on direct
appeal." Tatum, 943 F.2d at 379. Consequently, Torrence's allegation
of ineffective assistance of counsel is more properly addressed in the
forum of a motion under 28 U.S.C.A. § 2255 (West 1994 & Supp.
1998).
Torrence also contends that the district court erred in calculating
the amount of cocaine attributable to Torrence in determining the rel-
evant conduct and applicable offense level under the U.S. Sentencing
Guidelines (Nov. 1, 1996). Because Torrence failed to object to the
presentence report and failed to raise this issue at sentencing, we
review for plain error. See United States v. Grubb, 11 F.3d 426, 440-
41 (4th Cir. 1993); see Fed. R. Crim. P. 52. Torrence first contends
that the total amount of crack cocaine relevant to his crime of posses-
sion with intent to distribute should not include the drugs he reserved
for personal use. Torrence's claim is belied by the record. It is appar-
ent from the presentence report that the probation officer accounted
for Torrence's personal use of crack cocaine in reaching a total rele-
vant conduct amount. The district court, in turn, adopted the factual
findings of the probation officer and consequently did not include
crack cocaine that was reserved for Torrence's personal use in deter-
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mining the relevant conduct. There was no plain error in determining
the amount of crack cocaine attributable to Torrence.*
In further attacking his sentence, Torrence advances several unde-
veloped contentions which affect the sentence calculation only tan-
gentially. Torrence expresses concern regarding the validity of his
guilty plea. Torrence's suggestion that his guilty plea was marred by
his ignorance of the sentence that might be imposed is utterly refuted
by the transcript of the Fed. R. Crim. P. 11 hearing at which the dis-
trict court informed him of the minimum and maximum sentences
Torrence would be facing. See Fed. R. Crim. P. 11(c)(1). In addition,
Torrence again attacks counsel's performance. He suggests counsel
overlooked the possibility of the application of the"safety valve" pro-
vision, see 18 U.S.C. § 3553(f) (1994), and failed to incorporate any
form of immunity in his plea agreement. See USSG § 1B1.8. As dis-
cussed above, such claims are not appropriate for consideration on
direct appeal, and even if they were, this court would find them com-
pletely meritless. Torrence's seven criminal history points placed him
a far cry from the no more than one point allowed under the "safety
valve" statute. See 18 U.S.C. § 3553(f)(1). Moreover, a cursory
review of Torrence's plea agreement reveals a paragraph regarding
use immunity that incorporates most of the language of USSG
§ 1B1.8(a).
Finding no merit to any of Torrence's claims of error, we affirm
his conviction and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the Court and argument would not aid the decisional pro-
cess.
AFFIRMED
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*Torrence's failure to object to the presentence report also renders it
unnecessary to consider the district court's adoption of the report's con-
clusion that Torrence's relevant conduct included a range of quantities of
crack cocaine, as opposed to a specific quantity. See United States v.
Ruiz, 43 F.3d 985, 991 (5th Cir. 1995); Fed. R. Crim. P. 32(c)(3)(D).
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