UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5508

DAVID WILLIAMS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 94-5905

COREY LORENZO WOODFOLK, a/k/a

Big Corey,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 94-5910

PHILIP EDWARD ROBERSON, a/k/a

Mumin Sahib Abdullah,

Defendant-Appellant.
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5217

DONCARLOS WILLIAMS, a/k/a Dee,

a/k/a Denice,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CR-93-419-JFM)

Submitted: May 21, 1996

Decided: June 17, 1996

Before WIDENER, MURNAGHAN, and WILKINS,

Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

C. Michael Walls, Laurel, Maryland; Marcia G. Shein, LAW OFFICE

OF MARCIA G. SHEIN, P.C., Atlanta, Georgia; Michael E. Kaminkow, SCHULMAN, TREEM, KAMINKOW & GILDEN, P.A., Baltimore, Maryland; Arcangelo M. Tuminelli, Baltimore, Maryland, for

Appellants. Lynne A. Battaglia, United States Attorney, Andrea L.

Smith, Assistant United States Attorney, Susan M. Ringler, Assistant

United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

 2
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Mumin Sahib Abdullah,1 Corey Lorenzo Woodfolk ("Big Corey"),

and Doncarlos Williams ("Dee") all pled guilty to conspiracy to distribute and to possess with intent to distribute heroin. 21 U.S.C.A.

§ 846 (West Supp. 1996). Abdullah and Woodfolk were each sentenced to serve fifty years and Doncarlos Williams was sentenced to

a term of 192 months imprisonment. David Williams took part in the

robbery of a K-Mart with the conspirators, pled guilty to conspiracy

to interfere with commerce by robbery, 18 U.S.C.A.§ 1951 (West

1984 & Supp. 1996), and received a sentence of 63 months imprisonment.

Woodfolk and David Williams appeal their sentences. Abdullah's

attorney has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), raising a number of issues but stating that in his view

there are no meritorious grounds for appeal. Abdullah has filed a pro

se supplemental brief. Doncarlos Williams contends that the district

court erred in denying his request to enforce a plea agreement which

was offered and withdrawn in June 1993 without being accepted by

him. For the reasons explained below, we affirm Woodfolk's, Abdullah's, and Doncarlos Williams's convictions and the sentences

imposed on David Williams, Abdullah, and Woodfolk.

In 1991 and 1992, Abdullah and Woodfolk sold heroin in Baltimore, Maryland, from a number of stash houses. For a while they

were very successful, selling heroin labeled "Strong as Steel," "Python," and "Nice and Smooth." In early 1992, they purchased a barber

_________________________________________________________________

1 Abdullah's name at birth was Philip Edward Roberson, and he was

charged in the indictment under this name. Because he legally changed

his name to Mumin Sahib Abdullah in 1988, we refer to him by his legal

name.

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shop. Doncarlos Williams worked as a security guard at the shopping

center where the barbershop was located and joined their operation.

By this time, feeling the need for more cash for drug purchases, Abdullah and Woodfolk carried out a number of robberies with the assistance of Doncarlos Williams and others. In May 1992, the robbery of

Arthur Chapple, another drug dealer, was planned at Abdullah's

father's house and carried out by Woodfolk, Doncarlos Williams,

"Little Corey" Johnson, and Nathaniel Gantt. Williams and Gantt

masqueraded as police officers to gain access to the house. The robbers reassembled at Abdullah's father's house afterward and were

paid by Abdullah for their participation.

In August 1992, an African drug dealer, Temidayo Sekiteri, was

robbed in a similar fashion by Woodfolk, Williams, Gantt, and

"Rahim." During the robbery, Woodfolk restrained Sekiteri with

either handcuffs or duct tape and stabbed him in the leg repeatedly

with a heated knife to get him to reveal the location of his drugs.

Although nothing was gained from this robbery, Abdullah again paid

the participants afterward.

In February 1993, Abdullah acted as lookout while Woodfolk, Harold Bruton, Timothy Shird ("Bilal"), Doncarlos Williams and his

brother, David Williams, robbed a K-Mart store, taking cash, checks,

jewelry, and watches. As the robbers entered the store, one employee

was escorted back into the store at gunpoint and all the employees

were then forced to lie face down on the floor until the robbery was

completed while Shird held a gun on them.

Other violent acts were carried out during the conspiracy. In March

1991, Woodfolk and Johnson ordered two subordinates to shoot members of a rival drug gang who were trespassing on their turf. One of

the victims, David Jones, died of his wounds. In September 1991, a

dry cleaning store near one of the stash houses was burned at Woodfolk's direction after the owner of the cleaners complained to police

about drug activity in the area. In December 1992, Woodfolk and

Johnson shot and killed Dwayne Oliver and Jack Lewis, two drug

dealers who were selling heroin for a former member of the Abdullah/Woodfolk organization. In January 1993, Abudllah, Woodfolk,

and Doncarlos Williams attempted an attack on Charles Milton

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("Butterall"), who had previously worked for the organization, but

were scared off when Milton shot through the door of his apartment.

David Williams

David Williams contests the district court's decision to enhance his

offense level under USSG § 2B3.1(b)(4)(B), 2 which provides for a

2-level increase "if any person was physically restrained to facilitate

the commission of the offense or to facilitate escape." He argues that

the enhancement was unjustified because the K-Mart employees were

not physically restrained. The district court found that the adjustment

was appropriate because one employee was brought back into the

store and all the employees were kept on the floor for approximately

ten minutes at gunpoint while the loot was gathered. Williams's

guideline range with the adjustment was 63-78 months; without the

adjustment it would have been 51-63 months. The court found that,

even if the adjustment were improper, it would impose the same sentence of 63 months. Therefore, review of the applicability of the

adjustment is unnecessary. United States v. White, 875 F.2d 427, 432-

33 (4th Cir. 1989).

Corey Woodfolk

Woodfolk and Abdullah entered into identical plea agreements by

which they pled guilty to conspiracy and stipulated to a base offense

level of 32 (1-3 kilograms of heroin). USSG § 2D1.1 (Nov. 1994).3

The government agreed to recommend a 3-level downward adjustment for acceptance of responsibility in each case, based on their

admission of the drug conduct. The probation officer recommended

that both Woodfolk and Abdullah receive a 3-level upward adjustment for having a managerial role in the conspiracy. USSG

§ 3B1.1(b). Other possible enhancements, adjustments, and departures were left for determination by the district court and were not discussed in their presentence reports.

_________________________________________________________________

2 United States Sentencing Commission, Guidelines Manual (Nov.

1993).

3 Woodfolk and Abdullah were sentenced in November 1994.

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In a four-day sentencing hearing, the government produced numerous co-conspirators and other witnesses who testified about the robberies, murders, and arson committed by or at the direction of

Woodfolk and Abdullah. Woodfolk produced no evidence to the contrary, but argued that none of the witnesses were reliable. The district

court ultimately found that Woodfolk should receive a 2-level

enhancement for possession of firearms, USSG § 2D1.1(b)(1), a 2-

level adjustment for restraint of a victim in the Sekiteri robbery,

USSG § 3A1.3,4 and a 2-level adjustment for obstruction of justice,

USSG § 3C1.1. The last adjustment was based on the beating, at

Woodfolk's direction and in his presence, of Givette Hogan, a former

stash house worker who testified at the sentencing hearing about the

Jones murder and the arson of the dry cleaners. Hogan testified that,

in July 1992, after she had been arrested and released, Woodfolk

warned her not to give information about him to authorities and then

ordered the three people with him to beat her. A year later, when she

was actively cooperating with authorities, Woodfolk telephoned

Hogan and again warned her that if she talked she might have to pay

for her actions.

The district court found that further enhancement of Woodfolk's

sentence was unnecessary because he was already at offense level 38

and in criminal history category VI, which gave him a guideline range

of 360 months to life. However, the court found that a departure could

have been made based on significant physical injury, USSG § 5K2.2,

property loss, USSG § 5K2.5, or death, USSG§ 5K2.1. The court

imposed a sentence of 600 months.

On appeal, Woodfolk first contests the adjustment for obstruction

of justice. The adjustment applies if the defendant willfully attempted

to obstruct justice by threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror. USSG § 3C1.1,

comment. (n.3(a)). Woodfolk does not contest the fact of the July

1992 beating, but argues that the adjustment for obstruction of justice

did not apply because the district court did not find that it was done

with a willful intent to obstruct justice, and because there was no

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4 Because the district court described this as an "automatic" increase

rather than a departure, we assume the adjustment was applied.

 6
ongoing investigation of the heroin conspiracy at the time of the beating, and Hogan was not then a co-defendant or a witness.

We find that the district court did not err as a matter of law in making the enhancement. The evidence produced at sentencing established that Hogan had been arrested in a raid on the stash house where

she was working in June 1992 and released on bail. Thus, an investigation and prosecution of the conspiracy was under way. Although

the principals had not yet been identified, Hogan was a potential

source of information and witness. In July, not long before Hogan

began to serve her sentence, Woodfolk warned her not to tell law

enforcement authorities what she knew about the organization. The

intent to thwart further investigation is clear, as is the nexus to the

offense for which Woodfolk was eventually convicted, even though

he was ultimately prosecuted by federal authorities.

Woodfolk also contends that use of the preponderance of the evidence standard to resolve sentencing issues violated due process in his

case because his sentence was significantly increased by the district

court's findings. His argument is without merit. The Supreme Court

has held that due process is satisfied by use of the preponderance of

the evidence standard to factfinding during sentencing. McMillan v.

Pennsylvania, 477 U.S. 79, 91-93 (1986).

Woodfolk next argues that the district court erred in finding that his

involvement in the robberies, murders, and arson was relevant conduct because the witnesses were self-interested and unreliable. Certainly, factual evidence relied on by the district court must have some

minimal indicia of reliability, United States v. Hicks, 948 F.2d 877,

883 (4th Cir. 1991), but that requirement was satisfied here. Woodfolk points out some inconsistencies in the witnesses' testimony, but

overlooks the fact that they corroborated each other far more than

they contradicted each other. In a conspiracy, relevant conduct

includes all acts committed by the defendant and by others which are

in furtherance of the conspiracy, are reasonably foreseeable to the

defendant, and are within the scope of the criminal activity the defendant agreed to undertake. USSG § 1B1.3(a). The district court did not

err in treating the robberies, murders, and arson as relevant conduct

because each was clearly connected to the heroin conspiracy and

Woodfolk participated in each of them. The fact that these other

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crimes were not offenses such as would be grouped under USSG

§ 3D1.2(d) is of no import. See USSG§ 1B1.3(a)(2).

Finally, Woodfolk argues that the district court's acceptance of his

guilty plea before the completion of his presentence report was plain

error. Fed. R. Crim. P. 52(b). He claims that his plea was not knowing

and voluntary because numerous sentencing issues were unresolved

by his plea agreement. However, the parties in this case purposely left

those issues to be resolved by the district court during the sentencing

hearing. The probation officer was even instructed not to make recommendations to the district court on the additional enhancements

sought by the government, and Woodfolk's attorney informed the

court at the Rule 11 hearing that, as a result, Woodfolk would not discuss any conduct other than drug activity with the probation officer.

The district court made clear that it was not bound by the stipulations

in the agreement, thus implicitly deferring acceptance of the agreement. Despite the conflict between Fed. R. Crim. P. 11(e)(2), which

permits the court to defer acceptance of the plea agreement until after

it has had an opportunity to review the presentence report, and USSG

§ 6B1.1(c), which states that the court shall wait to accept the plea

agreement until after consideration of the presentence report, the district court has the discretion to accept a guilty plea before preparation

of the presentence report. See United States v. Ewing, 957 F.2d 115,

119 (4th Cir.), cert. denied, 505 U.S. 1210 (1992).

Moreover, before he entered his plea, Woodfolk was informed of

the maximum sentence and of the mandatory minimum sentence to

which he was exposed. A defendant need not be informed of the

applicable guideline range before the district court accepts his plea.

United States v. DeFusco, 949 F.2d 114, 118-19 (4th Cir.), cert.

denied, 502 U.S. 885 (1991). No plain error occurred.

In his pro se supplemental brief, Woodfolk maintains that the government breached the plea agreement by arguing for an enhanced sentence based on relevant conduct. He further argues that his guilty plea

was invalid because he was not advised that he was waiving his right

to a jury trial and that a lower standard of proof applied at sentencing.

These arguments are without merit; in particular, the district court

informed Woodfolk of the rights he was waiving during a lengthy and

complete Rule 11 hearing.

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Mumin Sahib Abdullah

At his sentencing hearing, Abdullah personally requested leave to

withdraw his guilty plea. He said he had been pressured to plead

guilty and had since changed his mind and lost confidence in his

retained attorney. He said his attorney had wrongly told him that the

guidelines applicable to him would change before his sentencing. He

said he had been led to believe that his sentence would be considerably shorter than what he now understood he might face, and that evidence of the "Whitelock murders" (of Oliver and Lewis) would not

be considered. The district court found that Abdullah had not shown

a fair and just reason to withdraw his plea and denied the motion. Abdullah decided not to ask for the appointment of new counsel.

Abdullah's base offense level was 32, increased to 35 by an undisputed 3-level adjustment for his role in the offense, and decreased

again by 3 levels for acceptance of responsibility. The district court

added a 2-level enhancement for possession of firearms, USSG

§ 2D1.1(b)(1), and a 2-level adjustment for restraint of victim, USSG

§ 3A1.3, bringing Abdullah's guideline range to 36. The court found

that a 2-level departure could be made for physical injury, USSG

§ 5K2.2, property loss, USSG § 5K2.5 or possibly death, USSG

§ 5K2.1. Because Abdullah was in criminal history category VI, his

guideline range was clearly 360 months to life. The court sentenced

Abdullah to 600 months imprisonment.

Abdullah's attorney has filed a brief in this court pursuant to

Anders v. California, 386 U.S. 738 (1967), raising several issues but

stating that in his opinion there are no meritorious issues for appeal.

Abdullah has moved to strike his attorney and to proceed pro se. He

has filed a pro se supplemental brief in which he claims that he has

received ineffective assistance from his counsel at his guilty plea, his

sentencing, and on appeal. He also contends that his guilty plea was

invalid and requests that his plea be vacated and his case remanded

to a different judge.

Counsel first suggests that the government may have failed to disclose an unspecified promise to witness Marion Cheatham, who was

serving a probation violation sentence at the time she testified about

the December 1992 murders of Oliver and Lewis. See Giglio v.

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United States, 405 U.S. 150, 154-55 (1972) (when reliability of witness may determine guilt, failure to disclose promise that affects credibility is denial of due process). Counsel states that Abdullah has

informed him that Cheatham was released from prison following her

testimony in the sentencing hearing. We note that Abdullah's guilt

was not an issue after his guilty plea and that the district court did not

find that he was implicated in the murders about which Cheatham testified. Therefore, such a vague and unsupported allegation made on

appeal is hardly sufficient to undermine his conviction.

Next, counsel suggests that due process required the use of a clear

and convincing standard of proof at sentencing rather than the preponderance of the evidence test. As already discussed, this issue is without merit. Counsel and Abdullah (in his supplemental brief) question

whether the conduct supporting the sentence enhancements was relevant conduct. We find that it was because all the acts for which Abdullah was held accountable were acts in which he participated or

were undertaken by others in furtherance of the conspiracy and were

reasonably foreseeable to him and within the scope of his agreement.

USSG § 1B1.3(a)(1).

In his pro se supplemental brief, Abdullah first contends that his

attorney gave him ineffective assistance in connection with his guilty

plea and that his plea was involuntary as a result. He also claims that

the district court abused its discretion in refusing to allow him to

withdraw his guilty plea. Abdullah alleges that his attorney failed to

warn him that he would be considered a career offender and underestimated the sentence he might receive. However, the revised presentence report removed the career offender designation. We note that,

like Woodfolk, Abdullah was informed of the maximum sentence and

of the mandatory minimum sentence to which he was exposed at the

Rule 11 hearing. In any case, the issue of an attorney's competency

is better addressed in a motion pursuant to 28 U.S.C. § 2255 (1988),

rather than on direct appeal, unless ineffectiveness conclusively

appears in the trial record. United States v. Williams, 977 F.2d 866,

871 (4th Cir. 1992), cert. denied, 507 U.S. 942 (1993). Because the

record does not conclusively demonstrate that Abdullah's counsel was

ineffective, we will not address the issue here.

Under the test set out in United States v. Moore , 931 F.2d 245, 248

(4th Cir.), cert. denied, 502 U.S. 857 (1991), the district court did not

 10
abuse its discretion in denying Abdullah's request to withdraw his

plea. Abdullah did not offer credible evidence that his plea was involuntary; neither did he offer a credible assertion of innocence. His

motion to withdraw was made at the sentencing hearing two months

after his guilty plea was entered. Abdullah provided no evidence that

his attorney had not performed competently on his behalf. An attorney's erroneous estimate of the applicable guideline range does not

warrant withdrawal of a guilty plea. United States v. Lambey, 974

F.2d 1389, 1395 (4th Cir. 1992) (in banc), cert. denied, ___ U.S. ___,

63 U.S.L.W. 3460 (U.S. Dec. 12, 1994) (No. 94-6055). Both the government and the district court would have been prejudiced by withdrawal of the plea because numerous witnesses had been assembled

for what turned out to be a four-day sentencing hearing. Had Abdullah gone to trial, many of the same witnesses would have had to

testify again. In sum, we find that the district court did not abuse its

discretion in denying the motion.

In accordance with Anders, we have examined the entire record in

this case and find no meritorious issues for appeal. This court requires

that counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. We therefore

deny Abdullah's request to strike his counsel and proceed pro se. We

also deny counsel's motion to withdraw at this time. If the client

requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move again in this court

for leave to withdraw from representation. Counsel's motion must

state that a copy thereof was served on the client.

Doncarlos Williams

Doncarlos Williams was initially charged only with participating in

the K-Mart robbery. On June 1, 1993, Doncarlos Williams made a

proffer to the government in hopes of entering into a cooperation plea

agreement. A plea agreement was offered to Williams on June 3,

1993, by which Williams was to plead guilty to one count of heroin

distribution. This agreement was never accepted. Sometime between

June 7 and June 15, the government withdrew the offer of a plea

agreement because it doubted the truthfulness of Williams's assertion

that his friend, Garcia Gilmore, a police officer, was not involved in

the K-Mart robbery.

 11
In January 1994, plea negotiations resumed. In April 1994, Doncarlos Williams, Abdullah, Corey Woodfolk, and Corey Johnson were

charged in a superseding indictment with participation in the heroin

conspiracy. In September 1994, Williams entered into an agreement

to plead guilty to participating in the heroin conspiracy and his plea

was accepted by the district court.

At his sentencing hearing in March 1995, Williams sought, through

new counsel, to enforce the withdrawn June 1993 plea offer. He relied

on United States v. Cooper, 594 F.2d 12, 17-20 (4th Cir. 1979), which

held that a defendant is entitled to specific performance of a plea

agreement offered by the government and withdrawn while the defendant was attempting to accept it. Williams argued that he had relied

on the government's offer to his detriment by making a proffer of

incriminating information and that, because the government was

never able to prove Garcia Gilmore's involvement, the offer was

improperly withdrawn. However, the district court found that Cooper

did not apply because Williams did not show that he accepted or

attempted to accept the government's offer. The court found that Williams had given his proffer in reliance on the government's proffer

letter of June 1, 1993, rather than on the unexecuted plea agreement,

and had continued his proffer after the government's offer in hopes

of getting a better offer. The court found that the unexecuted plea

agreement was not enforceable and sentenced Williams according to

the agreement he signed in September 1994.

On appeal, Williams argues that the government breached the June

1993 plea "agreement" by withdrawing its offer. Judicial interpretation of plea agreements is governed primarily by the law of contracts.

United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994). Factual

questions are reviewed under the clearly erroneous standard while

principles of contract interpretation are reviewed de novo. Id. Williams's attorney represented that his failure to accept the June 1993

offer might have been due to time constraints, but no evidence to that

effect was presented. As the district court found, there was no evidence that Williams made any attempt to accept the offer before it

was withdrawn. His case is thus distinguishable from Cooper, assuming that Cooper retains any validity after the Supreme Court's decision in Mabry v. Johnson, 467 U.S. 504, 507-11 (1984), that

acceptance of a proposed plea bargain does not create a right to spe-

 12
cific enforcement of the bargain if it is withdrawn by the government

prior to entry of a guilty plea. Cf. Plaster v. United States, 789 F.2d

289, 292-93 (4th Cir. 1986) (dicta indicating Cooper was overruled

by Mabry). We cannot say that the district court was clearly erroneous

in finding that Williams neither accepted the June 1993 offer nor

relied on it in making his proffer. Therefore, he was not entitled to

specific performance of that offer.

We therefore affirm the convictions of Woodfolk, Abdullah, and

Woodfolk and the sentences imposed on Woodfolk, David Williams,

and Doncarlos Williams. We deny Woodfolk's motion to strike the

Appellee's brief and supplemental appendix. We dispense 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

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