UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5826

MARINO RAMIREZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CR-93-90-N)

Submitted: July 23, 1996

Decided: August 5, 1996

Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Larry W. Shelton, GOLDBLATT, LIPKIN & COHEN, P.C., Norfolk,

Virginia, for Appellant. Helen F. Fahey, United States Attorney, Fernando Groene, Assistant United States Attorney, Norfolk, Virginia,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Marino Ramirez appeals from his jury convictions of conspiracy to

distribute and to possess with intent to distribute cocaine, in violation

of 21 U.S.C.A. § 846 (West Supp. 1996), two counts of distribution

of cocaine, and one count of possession with intent to distribute

cocaine, in violation of 21 U.S.C. § 841(a)(1) (1988). We affirm.

I.

On August 16, 1990, Detective Thomas Bishop of the Virginia

Beach Police Department obtained search warrants for three guest

rooms in the Days Inn in Virginia Beach. While Bishop was procuring the warrants, Sergeant Neal Thompson established surveillance on

Room 311. He observed Appellant enter the room carrying a white

paper bag. Shortly thereafter, Appellant exited and walked to Room

322. When Room 311 was searched, the police found a white paper

bag similar to the one Thompson saw Appellant carry into the room.

The bag contained 288 grams of cocaine.

The police entered Room 322 pursuant to a search warrant in the

early morning hours of August 17, where they found Appellant, Wendell Wood, and Wood's girlfriend, Marilyn Claudio. The police also

found an unloaded gun belonging to Wood under one of the beds.

At trial, Claudio testified that, in June 1990, Wood began traveling

to Virginia Beach to sell cocaine. Appellant was their supplier. Claudio accompanied Wood on approximately five trips, and Appellant

traveled with them on several occasions.

Claudio further testified that on July 10 and August 10, she, Wood

and Appellant traveled to Virginia Beach and rented rooms under

false names. Wood then sold the cocaine to his customers. On or

about August 13, Appellant and Claudio left Wood in Virginia Beach

and flew to New Jersey for more cocaine. On August 15, they transported a kilogram of cocaine back to Virginia Beach.

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The jury convicted Appellant of all counts, and the district court

sentenced him to 151 months imprisonment.

II.

Appellant challenges the sufficiency of the evidence supporting his

convictions. In applying the familiar sufficiency of the evidence standard, we "construe the evidence in the light most favorable to the government, assuming its credibility, drawing all favorable inferences

from it, and taking into account all the evidence, however adduced."

United States v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991). To sustain

a conspiracy conviction, the government must prove beyond a reasonable doubt that a defendant knew of the existence of, and voluntarily

participated in, the conspiracy. See United States v. Morsley, 64 F.3d

907, 919 (4th Cir. 1995), cert. denied, 64 U.S.L.W. 3467 (U.S. Jan.

8, 1996) (No. 95-6942).

Claudio's testimony clearly established that Appellant conspired to

distribute cocaine. Appellant argues that Claudio was not a credible

witness, but questions of witness credibility are the province of the

jury, not of the court of appeals. United States v. Reavis, 48 F.3d 763,

771 (4th Cir.), cert. denied, 63 U.S.L.W. 3890 (U.S. June 19, 1995)

(No. 94-9316).

Sufficient evidence was also presented to affirm Appellant's substantive distribution counts arising out of transactions on July 10 and

August 10. The term "distribute" in § 841(a)(1) is defined quite

broadly. United States v. Luster, 896 F.2d 1122, 1127 (8th Cir. 1990).

The government need not show that Appellant physically transferred

the cocaine if it can show "other acts in furtherance of the transfer."

United States v. Crockett, 813 F.2d 1310, 1316 (4th Cir.), cert.

denied, 484 U.S. 834 (1987). No evidence was presented that Appellant personally transferred the cocaine. However, as discussed above,

a reasonable jury could conclude that Appellant provided cocaine to

Wood to sell to his customers in Virginia Beach and that Appellant

accompanied Wood to oversee the transactions. A jury could reasonably view these acts as taken in furtherance of the transfer, providing

sufficient evidence to support these substantive convictions.

Finally, the evidence was sufficient to convict Appellant of possession with intent to distribute the cocaine found in Room 311. Based

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on Thompson's testimony, the jury could easily have found that

Appellant placed the bag containing the cocaine in Room 311. In

addition, given the large amount of cocaine that was recovered, the

jury could have properly inferred Appellant's intent that it be distributed. United States v. Bell, 954 F.2d 232, 235 (4th Cir. 1992).

III.

Appellant next claims that he received ineffective assistance of

counsel when his attorney failed to move for a judgment of acquittal.

A claim of ineffective assistance of counsel should be raised by

motion under 28 U.S.C. § 2255 (1988), as amended by Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1217, unless it "conclusively appears" from the record that

defense counsel did not provide effective representation. United

States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973) (citing United

States v. Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970)). Because the

record before us fails to establish conclusively trial counsel's ineffective assistance, we decline to review this issue at this time.

IV.

Finally, we reject Appellant's contention that the district court

erred by applying a two-level sentence enhancement for possession of

a firearm pursuant to United States Sentencing Commission,

Guidelines Manual, § 2D1.1(b)(1) (Nov. 1994). Appellant contends

that the gun belonged to Wood and there was no evidence that Appellant even knew of its existence. We note, however, that a defendant

"possesses" a firearm for purposes of § 2D1.1(b)(1) if the weapon was

merely "present," unless it is clearly improbable that the weapon was

connected with the offense. United States v. Hunter, 19 F.3d 895, 896

(4th Cir. 1994) (enhancement affirmed where defendant could reasonably have foreseen that a firearm would be present during drug transaction). As Appellant notes, Hunter controls this issue, and we

decline Appellant's invitation to reconsider Hunter's holding.

Because the district court's determination that a firearm was present

so as to justify an enhancement was not clearly erroneous, see United

States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990), we affirm the

enhancement.

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V.

Accordingly, we affirm the conviction and sentence imposed by the

district court. 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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