United States v. Luther Sigmon ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4253
LUTHER R. SIGMON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-93-89)
Submitted: April 6, 1999
Decided: April 22, 1999
Before ERVIN and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Joseph W.H. Mott, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Luther R. Sigmon appeals from the judgment and sentence
imposed on his convictions for conspiracy to distribute marijuana,
possess marijuana, possess with intent to distribute marijuana, distrib-
ute cocaine, possess with intent to distribute cocaine, and money
laundering.1 See 18 U.S.C. § 1956(a)(1)(A)(i) (West Supp. 1998); 21
U.S.C. § 846 (1994). On appeal, Sigmon contends that the court erred
in enhancing his sentence pursuant to 21 U.S.C.§ 841(b)(1)(B) (West
Supp. 1998). He also contends that he received ineffective assistance
of counsel. Finding no reversible error, we affirm.
In January 1991, while transporting marijuana from Texas to Vir-
ginia, Sigmon was arrested in Tennessee and charged with possession
with intent to distribute marijuana. He was convicted of the charge by
a Tennessee state court in October 1991 and sentenced to one year in
prison. In August 1993, a superseding indictment was issued by a fed-
eral grand jury charging Sigmon with conspiracy to distribute cocaine
and marijuana from January 1989 until August 1993 and money laun-
dering. One of the overt acts charged in the indictment was conduct
that was the basis for the Tennessee conviction. In April 1994, Sig-
mon pled guilty to the two federal charges. Prior to his guilty plea,
the Government filed an information pursuant to 21 U.S.C. § 851_________________________________________________________________
1 Sigmon was convicted for the offenses in 1994. He did not note an
appeal, but he subsequently filed a motion under 28 U.S.C.A. § 2255(West 1994 & Supp. 1998), contending that both his attorney and the
court failed to notify him of his right to appeal. The court found that Sig-
mon was not properly notified of his right to appeal, vacated the 1994
judgment, and reentered an amended final judgment in March 1998. Sig-
mon filed a timely notice of appeal from the amended final judgment.
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(1994) alleging that Sigmon was subject to enhanced punishment
under § 841(b)(1)(B).2
In June 1994, Sigmon was sentenced to concurrent terms of 120
months' imprisonment on the conspiracy conviction and 40 months'
imprisonment on the money laundering conviction. The court applied
the penalty enhancement of § 841(b)(1)(B) without objection from
Sigmon.
Sigmon now contends that the court committed plain error by using
the 1991 Tennessee conviction as a basis for enhancing his federal
sentence. Sigmon contends that since the conspiracy offense included
as overt conduct the conduct that was the basis for the Tennessee con-
viction, his sentence should not be enhanced based on that conviction.
The Government contends that in spite of the fact that such conduct
was also one of the overt acts committed during the course of the con-
spiracy, the enhancement was proper because Sigmon engaged in the
unlawful conspiratorial conduct after the Tennessee conviction
became final.
Because Sigmon did not object at sentencing to the imposition of
the ten-year minimum sentence, our review is limited to plain error.
Under this standard, we must find that (1) an error was committed,
(2) the error was plain, and (3) the error affected Sigmon's substantial
rights. If these requirements are satisfied, we must also decide
whether the error affected the fairness, integrity, or public reputation
of judicial proceedings. See United States v. Ford, 88 F.3d 1350,
1355-56 (4th Cir. 1996).
There was no error in this instance. As we observed in United
States v. Howard, 115 F.3d 1151, 1158 (4th Cir. 1997), the purpose
of the mandatory minimum sentence is to target recidivism. The Gov-
ernment presented substantial evidence that Sigmon engaged in the
conspiracy even after his 1991 conviction became final. At Sigmon's
guilty plea hearing, a government investigator testified as to Sigmon's
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2 Section 841(b)(1)(B) mandates that a defendant serve a minimum of
ten years in prison if the offense of conviction involves more than 100
kilograms of marijuana and the defendant committed the offense of con-
viction after a prior, final felony drug conviction.
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unlawful conspiratorial conduct after he served his prison sentence for
the 1991 conviction. The presentence investigation report also
included details of Sigmon's participation in the drug conspiracy after
his release from prison, and the court adopted the presentence report
as its findings of fact. According to the report, after his release, Sig-
mon continued to transport large quantities of marijuana from Texas
to Virginia. This "is precisely the type of recidivism to which section
841 is addressed." Id. Furthermore, because Sigmon's Tennessee con-
viction was final in November 1991, his unlawful post-incarceration
conduct certainly occurred after his conviction was final. Accord-
ingly, we conclude that the court did not err in enhancing Sigmon's
sentence.
Sigmon also contends that his counsel was ineffective for failing
to object to the Government's use of statements made by Sigmon at
a pre-trial detention hearing that concerned his trips to Texas. Accord-
ing to Sigmon, the Government presented the statements to a grand
jury that subsequently indicted Sigmon. It is well established that
ineffective assistance of counsel claims should be raised by motion
under 28 U.S.C. § 2255 (West 1994 & Supp. 1998), unless the record
before the court conclusively demonstrates that counsel was ineffec-
tive. See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991). Because the record does not conclusively show that counsel
was ineffective, we decline to review this issue.
Accordingly, we affirm Sigmon's convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid in the decisional process.
AFFIRMED
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