United States v. Harris ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                     No. 96-4880
    ROBERT EARL HARRIS,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Newport News.
    Robert G. Doumar, Senior District Judge.
    (CR-96-20)
    Submitted: January 6, 1998
    Decided: February 23, 1998
    Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    James K. Bredar, Federal Public Defender, Steven F. Reich, Assistant
    Federal Public Defender, Greenbelt, Maryland, for Appellant. Helen
    F. Fahey, United States Attorney, Timothy R. Murphy, Special Assis-
    tant United States Attorney, Norfolk, Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Robert Earl Harris appeals his conviction after a jury trial for one
    count of conspiracy to possess with intent to distribute and to distrib-
    ute cocaine in violation of 
    21 U.S.C. § 846
     (1994), and seven counts
    of distribution of cocaine in violation of 21 U.S.C.§ 841(a)(1) (1994).
    Harris alleges ineffective assistance of counsel and also claims that
    the district court erred in sentencing him. Because we find that the
    record does not conclusively show ineffective assistance of counsel
    and because we conclude that the district court did not commit plain
    error in sentencing Harris, we affirm.
    First, Harris claims that his rights under the Sixth Amendment
    were denied by his counsel's performance at trial and sentencing.
    Specifically, Harris asserts that his counsel's failure to cross-examine
    Government witnesses on their plea agreements, failure to challenge
    the drug quantity calculations in the presentence report, and failure to
    ask the court to make specific findings of fact regarding the amount
    of drugs attributable to Harris amounted to ineffective assistance of
    counsel. Harris contends that his counsel's actions actually prejudiced
    him because, as a result, the sentencing court concluded that more
    than 500 grams of cocaine were attributable to him and therefore sen-
    tenced him to a mandatory sentence of ten years' imprisonment. We
    find that ineffective assistance of counsel does not plainly appear on
    the face of the record, and therefore we decline to address the claims.
    See United States v. DeFusco, 
    949 F.2d 114
    , 120-21 (4th Cir. 1991)
    (finding that ineffective assistance claims are generally not cognizable
    on direct appeal and are more properly brought in motion pursuant to
    
    28 U.S.C.A. § 2255
     (West 1994 & Supp. 1997)).
    Additionally, Harris contends that the district court erred by failing
    to specifically state on the record the basis for its findings of fact
    regarding the amount of drugs attributable to Harris. Because Harris
    did not object to the sentencing court's calculation of the drug quan-
    tity attributable to him, we review the record for plain error. United
    States v. Ford, 
    88 F.3d 1350
    , 1355 (4th Cir.), cert. denied, 
    65 U.S.L.W. 3369
     (U.S. Nov. 18, 1996) (No. 96-6379). A review of the
    record reveals that the district court based its findings of fact regard-
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    ing the exact amount of drugs attributable to Harris on the evidence
    presented at trial and on the calculations found in the presentence
    report, and we determine that the district court did not plainly err in
    sentencing Harris. See United States v. Olano , 
    507 U.S. 725
    , 734-35
    (1993).
    Accordingly, we affirm. 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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