UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4928
EDWARD BUFUTH PHILLIPS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-96-93)
Submitted: November 25, 1997
Decided: January 28, 1998
Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Timothy F. Cogan, CASSIDY, MYERS, COGAN, VOEGELIN &
TENNANT, L.C., Wheeling, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, Ray M. Shepard, Assistant United
States Attorney, Huntington, 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Unpublished opinions are not binding precedent in this circuit.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:
Edward Bufuth Phillips pled guilty to distributing cocaine in viola-
tion of 21 U.S.C.A. § 841 (West 1981 & Supp. 1997), and received
a sentence of 108 months imprisonment. Phillips appeals his sentence.
He challenges the district court's finding that he possessed a weapon
in connection with the offense, see USSG§ 2D1.1(b)(1),* and claims
that the court considered information protected under his cooperation
agreement in making that determination. See USSG § 1B1.8. He
argues that the court clearly erred when it refused to give him a miti-
gating role adjustment. See USSG § 3B1.2. He also alleges that he
was a victim of sentencing entrapment because crack cocaine was
included in his relevant conduct, see USSG§ 1B1.3, that the govern-
ment failed to honor a promise to recommend a substantial assistance
departure, see USSG § 5K1.1, and that he received ineffective assis-
tance of counsel. We affirm.
Phillips took over his son's cocaine business after his son was
severely injured in a car accident. From early 1995 until his arrest in
May 1996, Phillips regularly flew from his home in California to
Winston-Salem, North Carolina, where his son lived. He established
a relationship with his son's New York sources, Felix Ortega and
Lewis Mercado, and with his son's customers in North Carolina and
West Virginia. Phillips helped Mercado and Ortega find an apartment
in Huntington, West Virginia. He also arranged drug sales and partici-
pated in sales of cocaine and crack. On April 13, 1995, in Huntington,
Phillips and Mercado sold 73.5 grams of crack and .49 grams of
cocaine powder to two college students, who in turn sold it to an
undercover agent while Phillips was present. In early 1996, Ortega
and Mercado were arrested in Huntington, West Virginia. Thereafter,
Phillips found a source of cocaine in California and made about five
more trips to North Carolina, bringing between nine and thirty-six
ounces of cocaine with him each time, so that he could continue to
sell to his son's customers. Phillips was arrested in May 1996 after
selling five ounces of cocaine at a motel in Dunbar, West Virginia.
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*U.S. Sentencing Guidelines Manual (1995).
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He had a 9 mm. pistol with him in the motel room, as well as eleven
ounces of cocaine and $12,812 in cash.
Phillips immediately began to cooperate with the government and
eventually pled guilty to distributing the cocaine sold on April 13,
1995, in Huntington. His plea agreement did not mention a substantial
assistance departure, although the government attorney acknowledged
during the guilty plea hearing that the possibility of such a departure
was one of the benefits Phillips would gain through a guilty plea. The
agreement provided that information supplied by Phillips during his
cooperation would not be used to determine his sentence unless the
government obtained the same information from an independent
source. Before accepting Phillips' guilty plea, the district court specif-
ically informed him that, if the crack distributed on April 13, 1995,
were included in his relevant conduct, his base offense level would
be at least thirty-two. See USSG § 2D1.1(c). When the presentence
report was prepared, the crack and the firearm seized from Phillips
were used to calculate his sentence.
Phillips made no objection to the probation officer's calculation,
but requested a minor or minimal role adjustment, arguing unsuccess-
fully that he had acted for the benefit of his son and had simply car-
ried out his son's instructions. On appeal, he contends that the district
court clearly erred in denying him the adjustment because Ortega and
Mercado were more culpable than he; he also represents that the
cocaine he obtained in California was of low quality. Sentence adjust-
ments and enhancements are determined based on relevant conduct
which, for drug offenses, includes all acts and omissions that were
part of the same course of conduct as the offense of conviction. See
USSG § 1B1.3(a)(2). Phillips actively arranged drug sales, found his
own source of cocaine when it became necessary, and personally sold
cocaine. We have no difficulty in finding that he was not "substan-
tially less culpable" than the other participants in the overall offense.
See USSG § 3B1.2, comment. (backg'd).
Phillips alleges that the district court considered statements he
made under the cooperation agreement to find that he possessed a
weapon in connection with the offense. Phillips did not object to the
enhancement at sentencing, but the district court asked why it applied.
The government attorney explained that Phillips was in possession of
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a firearm when he was arrested immediately following a cocaine sale.
In a later exchange, the government attorney added that there was no
direct evidence that Phillips possessed a firearm during the April 13
distribution, but that the undercover agent reported that Phillips told
her he usually carried a gun when he traveled. The government attor-
ney also mentioned that, when Phillips was debriefed, he admitted
that he always carried a firearm when he was in Huntington.
The enhancement for weapon possession is to be made if a firearm
is present unless it is clearly improbable that the weapon was con-
nected to the offense. USSG § 2D1.1, comment. (n.3). We review the
district court's factual finding for clear error. United States v. Apple,
915 F.2d 899, 914 (4th Cir. 1990). There is no question that a weapon
was present during Phillips' offense, given that he had a firearm in his
possession when he was arrested and that enhancements are deter-
mined by relevant conduct and not simply by conduct comprising the
offense of conviction. Therefore, the district court did not need to
consider the admission Phillips made during his debriefing to find that
the enhancement applied. The court found "that the defendant did
possess the firearm during transactions falling within the relevant
conduct provisions." The court did not clearly err in making the
adjustment.
Phillips further argues that it was a violation of due process to
require him to prove that the firearm he possessed at his arrest was
not connected to his drug trafficking, particularly when he was not
charged with a firearm offense. Phillips did not raise this issue in the
district court and thus has failed to preserve it for other than plain
error review. See United States v. Olano, 507 U.S. 725 (1993) (plain
error review requires error, plain under current law, that is prejudicial
to defendant and seriously affects fairness, integrity or public reputa-
tion of judicial proceedings). Phillips cannot demonstrate plain error
because the guideline does not shift the burden of proof to the defen-
dant; the government is required to prove not only that the weapon
was present but that it is not clearly improbable that it was connected
to the offense. See United States v. Payne, 81 F.3d 759, 764 (8th Cir.
1996). And due process guaranteed that Phillips had an opportunity
at sentencing to present contrary evidence. He represented that the
firearm was for his personal protection, a motivation which the dis-
trict court found was connected to the offense.
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We find no evidence of sentencing entrapment in the fact that the
undercover agent asked to buy crack instead of cocaine powder on
April 13, 1995. See United States v. Jones, 18 F.3d 1145, 1151-55
(4th Cir. 1994) (sentencing entrapment results from outrageous con-
duct by law enforcement authorities). According to the agent's report,
Phillips initially referred the request to Ortega and Mercado, but later
accompanied Mercado when the crack was delivered and told the
agent and the confidential informants present how he had participated
in cooking the crack. Therefore, Phillips was properly held account-
able for the crack distribution.
Phillips contends that the government failed to keep a promise to
recommend a substantial assistance departure. His plea agreement
contained no promise of a motion pursuant to USSG§ 5K1.1 should
he provide substantial assistance, and when he entered his guilty plea
he acknowledged that his plea was not induced by any other promises.
At a post-sentencing hearing which the district court convened in
response to a letter from Phillips, the district court determined that the
government had never promised, informally or otherwise, to file a
motion for substantial assistance. At that hearing, the government
attorney explained that he had serious concerns about the truthfulness
of the testimony Phillips gave before a grand jury as part of his coop-
eration. The attorney denied telling Phillips' attorney that he intended
to recommend that the United States Attorney file a substantial assis-
tance motion. When there has been no promise of a departure motion
in return for substantial assistance, a defendant is not entitled to relief
unless the government's failure to request a departure results from an
unconstitutional motive. See Wade v. United States, 504 U.S. 181,
185-87 (1992). Phillips did not make the required showing.
Finally, Phillips claims that he received ineffective assistance of
counsel in connection with his sentencing. Such claims are not prop-
erly presented on direct appeal unless the record conclusively estab-
lishes that the defendant received inadequate representation. United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). In this case,
the record does not, on its face, establish that Phillips received inef-
fective assistance from his attorney.
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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