UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4388

JOHN MICHAEL SOUVERAIN, a/k/a

Cutty,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Bluefield.

David A. Faber, District Judge.

(CR-95-75)

Submitted: April 21, 1998

Decided: May 5, 1998

Before MURNAGHAN, HAMILTON, and WILLIAMS,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michelle M. M. Price, KING, ALLEN & GUTHRIE, Charleston,

West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Michael L. Keller, Assistant United States Attorney, Charleston,

West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

John Michael Souverain pleaded guilty to conspiracy to distribute

and to possess with intent to distribute cocaine base (crack), 21

U.S.C. § 846 (1994). The district court sentenced Souverain to ninetysix months in prison, to be followed by supervised release of five

years. Souverain appeals his conviction and sentence.* His attorney

has filed a brief in accordance with Anders v. California, 386 U.S.

738 (1967), raising three issues for appeal but stating that, in her

view, there are no meritorious issues for appeal. Souverain has filed

a pro se brief claiming ineffective assistance of counsel. Finding no

error, we affirm.

In late 1993, the West Virginia State Police began investigating the

distribution of cocaine base in Fayette County, West Virginia. Investigators discovered that Souverain was a member of a drug distribution

operation headed by Dennis "Shabba" Burke. Confidential informants

purchased 2.73 grams of crack from Souverain on three occasions; the

transactions were recorded through the use of body wire transmitters

which the informants wore. Additionally, Souverain made several

out-of-state trips at the direction of Burke to acquire crack for sale in

West Virginia. Reliable evidence established that 252 grams of

cocaine base was attributable to Souverain as relevant conduct.

Counsel raises three issues on appeal. None of the issues has merit.

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*The district court imposed judgment originally on December 18,

1995. Souverain filed a 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998)

motion, claiming that his attorney had failed to file a notice of appeal as

he had requested. By order entered May 14, 1997, the district court

vacated and immediately reinstated Souverain's original sentence, with

credit for time served. See United States v. Peak, 992 F.2d 39 (4th Cir.

1993). Souverain noted a timely appeal from that judgment.

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First, the record discloses full compliance with Fed. R. Crim. P. 11

at Souverain's plea proceeding. The district court discussed the elements of the offense, explored the factual basis for the plea, ensured

that Souverain had consulted with his attorney, ascertained that he

understood the rights he waived by virtue of his plea, and determined

that Souverain entered his plea freely and voluntarily.

Similarly, the record reveals that Souverain, who did not object to

the statements in the presentence investigation report, was sentenced

in accordance with the sentencing guidelines. We have observed that

"cocaine base" and "crack" are used interchangeably and refer to the

same particularly harmful form of cocaine and have found that the

more severe penalties for offenses involving crack (or cocaine base)

than those involving cocaine powder are constitutional. See United

States v. Fisher, 58 F.3d 96, 98-99 (4th Cir. 1995); see also U.S. Sentencing Guidelines Manual § 2D1.1(c), note (D) (1997). Finally, sentencing Souverain for the amount of crack that was reasonably

foreseeable to him violated neither double jeopardy nor due process

principles. See United States v. Rodriguez-Gonzalez, 899 F.2d 177,

179-82 (2d Cir. 1990); Williams v. Oklahoma, 358 U.S. 576, 584-85

(1959).

In his pro se supplemental brief, Souverain raises three claims of

ineffective assistance of counsel. A claim of ineffective assistance of

counsel is cognizable on direct appeal only where counsel's deficient

performance plainly appears on the face of the record. See United

States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). The record does

not establish that counsel's performance was deficient. Therefore,

Souverain should raise his claims in a motion brought pursuant to 28

U.S.C.A. § 2255.

Finding no error on the record before us, we affirm Souverain's

conviction and sentence. This court requires that counsel inform her

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 her client. We dispense with oral argument because the facts and

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legal contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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