UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4837
JUKEN WASHINGTON GORDON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-97-63)
Submitted: August 25, 1998
Decided: September 23, 1998
Before MURNAGHAN, NIEMEYER, and MICHAEL,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert E. Barrat, Martinsburg, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, Miller A. Bushong, III, 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Unpublished opinions are not binding precedent in this circuit.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:
Juken Washington Gordon was convicted of aiding and abetting
possession with intent to distribute cocaine base in violation of 21
U.S.C. § 841(a)(1) (1994) and 18 U.S.C. § 2 (1994), and aiding and
abetting interstate travel in promotion of a drug crime in violation of
18 U.S.C. §§ 2, 1952(a)(3) (1994). The district court sentenced Gor-
don to two concurrent 151 month terms of imprisonment. Gordon
appeals his convictions and sentence.
In accordance with Anders v. California, 1 Gordon's attorney has
filed a brief raising six issues, but stating that none of these issues are
meritorious. Gordon has filed a pro se response in which he moves
for appointment of new counsel and recites the issues raised in the
brief submitted by his attorney. We conclude that the issues raised in
Gordon's brief are indeed meritless. Accordingly, we affirm Gordon's
convictions and sentence.
First, Gordon contends that had "the [G]overnment . . . notified and
made full disclosure to [Gordon] of [one of] their [the Government's]
witness' [sic] lavish lifestyle . . . the outcome of the trial would have
been different, in that [Gordon] was wearing an inexpensive shirt and
blue jeans while the witness was expensively dressed."2 However, we
conclude that the information the Government allegedly failed to dis-
close does not create "a reasonable probability that, had the evidence
been disclosed to the defense, the proceeding would have been
different."3 Therefore, we decline to disturb Gordon's conviction on
this ground.
Second, Gordon contends that his arrest was based upon an illegal
search. This claim is meritless in that it was the uncontradicted testi-
mony of the officers who arrested Gordon that Gordon voluntarily
consented to the search. Therefore, we find no evidence of an illegal
search.
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1 386 U.S. 738 (1967).
2 Appellant's Br. at 13-14.
3 United States v. Bagley, 473 U.S. 667, 682 (1985).
2
Third, Gordon contends that the Government failed to prove the
elements of the crimes of which he was convicted. However, after
reviewing the evidence in the light most favorable to the Government,
we are satisfied that there was sufficient ground for a reasonable jury
to convict Gordon of the crimes with which he was charged.4 Accord-
ingly, we will not disturb his conviction on this ground.
Fourth, Gordon argues that his trial counsel was ineffective. We
have long held that such claims are not properly brought on direct
appeal, but rather, they must be advanced in a habeas corpus proceed-
ing pursuant to 28 U.S.C. § 2255 unless it"conclusively appears"
from the record that the representation was inadequate.5 Because we
find no such evidence of ineffective assistance in the record, we con-
clude that Gordon's ineffective assistance claims are not properly
raised on direct appeal.
Fifth, Gordon contends that the court erred in not reducing his sen-
tence. He argues that the district court should have reduced his sen-
tence under the "safety valve" provision of USSG § 5C1.2, because
Gordon was a "first time offender." However,§ 5C1.2 requires that
a defendant satisfy other criteria, such as cooperation with the Gov-
ernment. We find that no such cooperation took place, and thus Gor-
don was not entitled to the "safety valve" reduction. Therefore, this
argument is meritless.
Sixth, we disagree with Gordon's argument that the amount of
drugs used in computing his sentence was improperly attributed to
him. Gordon's responsibility for this amount of drugs was adequately
established at trial, and therefore use of this amount in sentencing was
not error. Accordingly, we decline to disturb Gordon's sentence on
this ground.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Gordon's
conviction and sentence. In addition, we deny Gordon's motion for
appointment of new counsel. We require that counsel inform his cli-
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4 See United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989).
5 See e.g., United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir. 1994).
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ent, in writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous,
then counsel may move this court for leave to withdraw from repre-
sentation. Counsel's motion must state that a copy thereof was served
on the client. We dispense with oral argument because the facts and
legal contentions are adequately presented in the records and briefs,
and oral argument would not aid the decisional process.
AFFIRMED
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