UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4633
GARY LEE LONG,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-00-25)
Submitted: March 23, 2001
Decided: April 13, 2001
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John J. Korzen, ANDERSON & ASSOCIATES, P.C., Kernersville,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Steven H. Levin, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LONG
OPINION
PER CURIAM:
Gary Lee Long was convicted pursuant to his conditional guilty
plea of two counts of being a felon in possession of firearms. On
appeal, he alleges that the search warrants issued for his residence
were not supported by probable cause and that his counsel rendered
ineffective assistance by failing to inform him of the possible conse-
quences of testifying. Finding no reversible error, we affirm.
Police officers executed a search warrant for Long’s residence after
receiving information from a confidential informant that Long was
storing and selling large amounts of cocaine from his home. While
executing the warrant, officers observed Long holding what they per-
ceived to be a firearm, and they heard what they believed to be a sin-
gle gun shot. After a brief stand-off, Long surrendered, and officers
seized two handguns, marijuana, cocaine, prescription pills, drug par-
aphernalia, cash, and a scanner tuned to the sheriff’s department fre-
quency. Officers executed a second search warrant approximately two
months later in which they seized three handguns, marijuana, cocaine,
prescription pills, drug paraphernalia, cash, and another scanner tuned
to the sheriff’s department frequency.
At sentencing, the only issue was whether Long possessed the fire-
arms in connection with another criminal activity; namely, drug traf-
ficking. Long testified that he was merely cleaning/repairing the
weapons for friends and family members. Long also testified that he
was not holding a firearm during the first search of his residence, nor
did he fire a shot at officers. Rather, he claimed that he simply set off
a firecracker. The district court found that this testimony was inten-
tionally and materially false. The court then enhanced Long’s sen-
tence for obstruction of justice and declined to give him an
adjustment for acceptance of responsibility.
We accord "great deference" to the magistrate judge’s assessment
of the facts when making a probable cause determination. See Illinois
v. Gates, 462 U.S. 213, 236 (1983); United States v. Blackwood, 913
F.2d 139, 142 (4th Cir. 1990). Our inquiry is limited to whether there
was a substantial basis for the magistrate judge’s conclusion that
UNITED STATES v. LONG 3
probable cause existed. See Blackwood, 913 F.2d at 142. There are no
bright-line rules for making this determination; rather the magistrate
judge must use common sense in deciding whether there is a fair
probability that the evidence sought will be found in the place to be
searched. Id.
In the present case, we find that the district court conducted a
proper inquiry and correctly found that there was a substantial basis
for the magistrate judge’s probable cause determination. The affida-
vits in support of the search warrants clearly stated that the informant
was known to the affiant, was reliable, and that the information was
based on the informant’s personal observations.*
We review claims of ineffective assistance of counsel on direct
appeal only when the ineffectiveness "conclusively appears" on the
record. See United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).
Otherwise, such claims should be raised in the district court in a
habeas corpus proceeding rather than in this court by direct appeal.
See id. Despite counsel’s admissions, we find no blatant deficiencies
in his performance. Long’s sentence was not enhanced because he
testified, but, rather, because he chose to testify falsely. We find noth-
ing in the record suggesting that Long was confused as to his obliga-
tion to provide truthful testimony.
Accordingly, we affirm Long’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
*We find Long’s reliance on United States v. Wilhelm, 80 F.3d 116
(4th Cir. 1996), and United States v. Barrington, 806 F.2d 529 (5th Cir.
1986), misplaced. The affidavits here provided more valuable informa-
tion than those in Wilhelm and Barrington.