UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5221

DARYL LAMONT GREEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

William L. Osteen, Sr., District Judge.

(CR-94-247)

Submitted: March 12, 1996

Decided: April 4, 1996

Before HALL and NIEMEYER, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Michael A. Grace, Lisa S. Costner, GRACE & COSTNER, P.A.,

Winston-Salem, North Carolina, for Appellant. Walter C. Holton, Jr.,

United States Attorney, Clifton T. Barrett, Assistant United States

Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Daryl Green appeals from a district court judgment entered pursuant to his guilty plea convicting him of distributing cocaine base, in

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) (1988). Counsel has

filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967),

raising issues relating to Green's sentencing, but stating that in his

view there are no meritorious issues on appeal. Green has filed a supplemental brief raising additional issues.

Initially, we reject counsel's contention that the district court erred

by applying a two-level enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). Counsel contends that Green did not

"possess" the firearm during his sale of cocaine base to an undercover

officer, because the sale took place inside a restaurant, and during the

sale the firearm was outside in his vehicle, which was parked in the

restaurant parking lot. We note, however, that a defendant "possesses"

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

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

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

(4th Cir. 1994), we affirmed a section 2D1.1(b)(1) enhancement

where the defendant "could reasonably have foreseen that a firearm

would be present in a car that was picking him up after a drug transaction." Id. at 896. We concluded that we could not say that it was

clearly improbable that the firearm located under the passenger seat

of the car the defendant entered was connected with the defendant's

drug offense. Id. Similarly, we cannot do so here. 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.

Counsel further argues that, in sentencing Green, the district court

should have applied the lesser statutory penalties applicable to the dis-

 2
tribution of cocaine rather than the more severe penalty for cocaine

base. He avers that because cocaine and cocaine base are definitionally identical, the statute's provision for differing punishments is

unconstitutionally vague, and that therefore the rule of leniency

should be applied and the lesser penalty for cocaine imposed. We

have recently considered and rejected this specific argument. See

United States v. Fisher, 58 F.3d 96, 98-99 (4th Cir. 1995).

Regarding the arguments in Green's supplemental brief, we note

that there is no indication or allegation in the record that Green's

claim that he was selectively prosecuted on the basis of his race was

ever raised prior to trial. As such, this claim appears to have been

waived. See United States v. Schmidt, 935 F.2d 1440, 1450 (4th Cir.

1991). In any event, however, we have reviewed Green's contentions

in this vein and find that he has failed to show that he has been singled out while others similarly situated have not been prosecuted, or

that the decision to prosecute him was invidious or made in bad faith.

Id. at 1449. We therefore reject his claim of selective prosecution.

Green also challenges the effectiveness of his counsel. Ineffective

assistance claims, however, are improperly raised on direct appeal

unless it "conclusively appears" from the record that defense counsel

did not provide effective representation. See United States v.

Williams, 977 F.2d 866, 871 (4th Cir. 1992). Ineffective assistance is

not apparent from the record in this case.

Accordingly, we affirm the conviction and sentence imposed by the

district court. 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. If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on the client.

 3
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

 4