UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4289

DARRELL W. SAMUEL,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-94-773)

Submitted: November 19, 1996

Decided: December 6, 1996

Before WIDENER, MURNAGHAN, and HAMILTON,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Lourie Augustus Salley, III, Lexington, South Carolina, for Appellant. J. Rene Josey, United States Attorney, Kelly E. Shackelford,

Assistant United States Attorney, Columbia, South Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Darrell W. Samuel entered a guilty plea pursuant to a

plea agreement to conspiracy to possess with intent to distribute

cocaine and cocaine base ("crack") in violation of 21 U.S.C. §§ 841,

846 (1994). The court later denied Samuel's motion to withdraw his

guilty plea and sentenced him to life imprisonment. Samuel then

noted his appeal through counsel. Samuel's counsel has filed in this

Court a brief in accordance with Anders v. California, 386 U.S. 738

(1967), in which he raises three issues, but states that, in his view,

there are no meritorious issues for appeal. Samuel was informed of

his right to file a pro se supplemental brief, which he has done. We

affirm.

Samuel's counsel asserts in the Anders brief that the court erred in

denying his motion for withdrawal of his guilty plea on the basis that

he was not competent to enter it. We find that the court properly

found that Samuel was legally competent to enter the guilty plea. Furthermore, the court did not abuse its discretion in ascertaining that

Samuel failed to demonstrate any "fair and just reason" to withdraw

his guilty plea. See Fed. R. Crim. P. 32(e); United States v. Moore,

931 F.2d 245, 248 (4th Cir.), cert. denied, 502 U.S. 857 (1991).

Appellant next asserts that the court erred in denying a two-level

reduction in base offense level for acceptance of responsibility pursuant to USSG § 3E1.1. In order to receive this reduction, a defendant

must demonstrate he is entitled to the adjustment by a preponderance

of the evidence. United States v. Harris, 882 F.2d 902, 907 (4th Cir.

1989). A guilty plea does not automatically entitle the defendant to

the reduction. Whether such a reduction is warranted is a factual question, United States v. Curtis, 934 F.2d 553, 557 (4th Cir. 1991), which

we review for clear error. United States v. Daughtrey, 874 F.2d 213,

217 (4th Cir. 1989). We find no clear error in the court's denial of this

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reduction in offense level. Samuel has consistently delayed resolution

of his case and minimized his involvement in the conspiracy.

The third claim raised in the Anders brief is that the court erred in

granting the Government's motion for a two-level enhancement for

obstruction of justice under USSG § 3C1.1. The Government sought

the enhancement based upon a letter Samuel wrote to a co-defendant

that instructed her how to testify at trial. Samuel directed the witness

to minimize his involvement in the drug conspiracy. The Guidelines

direct that if a defendant "attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing

of the instant offense, increase the offense level by 2 levels." USSG

§ 3C1.1. It is undisputed that Samuel wrote the letter in question,

which is just the sort of conduct that § 3C1.1 proscribes. See USSG

§ 3C1.1, comment. (n. 3(a)). Therefore, we find no error in application of this enhancement.

In his pro se supplemental brief, Samuel alleges that the court violated Fed. R. Crim. P. 11 in accepting the guilty plea and did not give

him enough time to review his presentence report. Samuel's claims

in regard to his Rule 11 hearing are totally belied by the record. The

transcript of the hearing discloses that the court complied with every

aspect of Rule 11.

As for review of the presentence report, the record discloses that

even though the court believed that Samuel had already reviewed the

report with his attorney, he adjourned the proceedings to give Samuel

additional time to review the document. Samuel declined to take

advantage of this opportunity. The record also discloses that defense

counsel filed objections to the report and that Samuel was mailed a

copy of the report prior to sentencing. Therefore, this claim is meritless.

Samuel next alleges that the prosecution breached the plea agreement because the agreement states that he was pleading guilty to an

offense involving cocaine, not "crack." Again, the record does not

support his claim. Samuel clearly entered a guilty plea to conspiracy

to unlawfully distribute and to possess with intent to distribute

cocaine base (commonly known as "crack") and cocaine. This charge

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is specifically noted in the written plea agreement and was noted by

the court at the Rule 11 hearing.

Samuel also contends that the government breached the plea agreement by "objecting" to a Rule 35 proceeding. Presumably, Samuel is

referring to a motion for reduction of sentence under Fed. R. Crim.

P. 35(b), which permits reduction of a sentence upon motion of the

government based upon substantial assistance of the defendant. There

is no evidence in the record that Samuel has ever rendered substantial

assistance to the government in any way. Therefore, this claim is

meritless.

Samuel next alleges that he received ineffective assistance of counsel for failing to file objections to the presentence report, for failing

to bring the court's attention to unspecified "lost" evidence, and for

failing to file a motion to withdraw the guilty plea. None of these

claims is supported by the record. Samuel has utterly failed to establish that the conduct of any of his three attorneys fell below any

objective standard of reasonableness. Thus, these claims are meritless.

See Hill v. Lockhart, 474 U.S. 52 (1985); Strickland v. Washington,

466 U.S. 668 (1984). In addition, since the record on direct appeal

does not conclusively demonstrate that Samuel was denied effective

assistance of counsel, such claims should be raised in a habeas corpus

proceeding under 28 U.S.C. § 2255 (1994), amended by Antiterrorism

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

Stat. 1214.

In accordance with Anders, we have reviewed the entire record and

find no meritorious issues for appeal. We note particularly that the

sentencing court carefully weighed factors noted by this Court in

United States v. D'Anjou, 16 F.3d 604, 612-14 (4th Cir.), cert. denied,

___ U.S. ___, 62 U.S.L.W. 3861 (U.S. June 27, 1994) (No. 93-9131),

in imposing the life sentence. We therefore affirm the district court's

orders in all respects. This court requires that counsel inform his client, in writing, of his right to petition the United States Supreme

Court 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. We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the court

and argument would not aid the decisional process. We also deny

Samuel's motions to strike the Anders brief filed in this appeal and

to relieve his attorney.

AFFIRMED

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