UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 99-4530

NIGEL G. GEOHAGEN,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

C. Weston Houck, District Judge.

(CR-98-399)

Submitted: December 20, 2000

Decided: January 8, 2001

Before LUTTIG, WILLIAMS, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

John O’Leary, O’LEARY ASSOCIATES, INC., Columbia, South

Carolina, for Appellant. J. Rene Josey, United States Attorney, Alfred

W. Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Nigel Geohagen appeals from a seventy-eight month sentence

imposed following his guilty plea to conspiracy to possess with the

intent to distribute and to distribute powder and crack cocaine, 21

U.S.C.A § 846 (West 1999). Finding no reversible error, we affirm.

Geohagen first challenges the district court’s jurisdiction under

Apprendi v. New Jersey, 530 U.S. ___, 120 S. Ct. 2348 (2000). Specifically, Geohagen claims that the Government’s failure to allege the

drug quantity in his indictment deprived the district court of jurisdiction. 

The Supreme Court held in Apprendi that "any fact that increases

the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt."

Apprendi, 120 S. Ct. at 2362-63. In United States v. Angle, 230 F.3d

113 (4th Cir. 2000) (96-4662), petitions for rehearing filed (Oct. 26,

2000), we concluded that if a defendant is sentenced to a term within

the statutory maximum, the conviction and sentence do not violate

Apprendi, notwithstanding the failure to allege a drug quantity in the

indictment. Geohagen’s sentence falls well within the maximum sentence set forth in 21 U.S.C.A. § 841(b)(1)(C) (West 1999). Accordingly, we find no Apprendi violation. 

Geohagen next claims that the district court improperly assessed a

four-level increase in his base offense level for his role as an organizer or leader in the conspiracy pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(a) (1998). Counsel did not object to this

enhancement, so we review for plain error. Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 732 (1993); United States v.

Hastings, 134 F.3d 235, 239-40 (4th Cir. 1998). To show plain error,

the defendant must establish that there was an error, the error was

plain, the error affected the defendant’s substantial rights, and the

error affected the fairness, integrity, or public reputation of the proceeding. Olano, 507 U.S. at 732; Hastings, 134 F.3d at 239-40. 

2 UNITED STATES v. GEOHAGEN
To apply an enhancement for a leadership role in a conspiracy, the

court must find that the defendant "was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise extensive." USSG § 3B1.1(a). A defendant who did not lead or

organize the conspiracy may nevertheless be subject to a four-level

adjustment if he "exercised management responsibility over the property, assets, or activities of a criminal organization." USSG § 3B1.1,

comment. (n.2). In deciding whether to apply the enhancement, courts

look to such factors as the nature of the defendant’s participation in

the commission of the offense, whether he recruited accomplices, the

degree of his participation in planning or organizing the offense, and

the nature and scope of the illegal activity. USSG § 3B1.1 comment.

(n.4). 

Geohagen does not dispute that there were five or more participants

in the conspiracy. He claims, however, that he was simply a low-level

drug courier, rather than a leader of the conspiracy. At the sentencing

hearing, the prosecuting attorney stated that an FBI agent involved in

the investigation said Geohagen was not a controlling member of the

conspiracy, which was based in Miami. Although he was not a high

level participant in the overall conspiracy, Geohagen was actively

involved in the South Carolina branch of the conspiracy. He brought

large quantities of cocaine from Miami to South Carolina on numerous occasions, and sold or fronted the cocaine to other people for

resale. Geohagen was involved in transporting and/or distributing a

total of 9.7 kilograms of cocaine over a two-year period. Although

there was little evidence regarding Geohagen’s direction of other

members of the conspiracy, there was evidence that the conspiracy

was wide-ranging, and that he was involved with significant quantities of drugs. Thus, the district court did not plainly err in assessing

the four-level adjustment under USSG § 3B1.1(a). 

Finally, Geohagen claims that he received ineffective assistance of

counsel in the district court because his attorney did not object to the

USSG § 3B1.1 sentence enhancement, and because he did not challenge the sufficiency of the indictment. Claims of ineffective assistance are not cognizable on direct appeal unless counsel’s

ineffectiveness plainly appears on the face of the record. United

States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Because the

record does not clearly show that counsel’s performance was defiUNITED STATES v. GEOHAGEN 3
cient, this claim is more properly raised in a motion under 28

U.S.C.A. § 2255 (West Supp. 2000). 

We affirm Geohagen’s conviction and sentence. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

significantly aid the decisional process. 

AFFIRMED

4 UNITED STATES v. GEOHAGEN