UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5455

RAY LEVERN FIELDS,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CR-95-6-S)

Submitted: May 28, 1996

Decided: June 27, 1996

Before HALL, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David B. Hamilton, Deborah M. Thompson, OBER, KALER,

GRIMES & SHRIVER, Baltimore, Maryland, for Appellant.

Andrea L. Smith, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Ray Levern Fields was charged in a two count indictment. Count

one charged him with conspiracy to distribute and to possess with

intent to distribute heroin in violation of 21 U.S.C.A. § 846 (West

1996). Count two charged Fields with possession with intent to distribute heroin, 21 U.S.C.A. § 841 (West 1991 & Supp. 1996). Fields

pled guilty to count one of the indictment, and as part of the plea

agreement, the Government moved to dismiss count two. Following

a Fed. R. Crim. P. 11 hearing, the court accepted Fields' plea. The

court imposed a sentence of sixty-two months imprisonment, supervised release of four years with special conditions, and a special

assessment of fifty dollars.

The State of Maryland charged Fields with possession with intent

to manufacture or distribute heroin, also the underlying offense in the

federal charges. He received a sentence of four years imprisonment,

with three years and six months suspended. Fields served one month

for the state charges. Upon Fields' guilty plea to the federal charge,

Maryland agreed to dismiss the charges and closed the case on July

29, 1994. At sentencing before the district court, Fields did not

receive criminal history points for the state charge and received a onemonth credit for time served.

Appellant's counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), challenging whether the district

court had jurisdiction over the charges, whether the indictment was

legally sufficient, whether the guilty plea was valid (including

whether the Rule 11 hearing was sufficient), and whether there was

a sentencing error, but stating that in counsel's view there existed no

non-frivolous grounds for appeal. Fields filed a pro se supplemental

brief challenging whether he received effective assistance of counsel,

whether his plea was voluntary, and whether the federal prosecution

violated double jeopardy principles. Finding no error, we affirm.

I

Conspiracy to distribute and to possess with intent to distribute a

quantity of heroin is an offense under the United States Code. 21

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U.S.C.A. §§ 841(a)(1), 846 (West 1981 & Supp. 1996). United States

district courts have jurisdiction over all offenses which are violations

of federal law. 18 U.S.C. § 3231 (1988). Therefore, the district court

had jurisdiction over the charges made in the indictment.

II

An indictment must apprise the accused of the essential elements

of each charge against him. United States v. Pupo, 841 F.2d 1235,

1239 (4th Cir.), cert. denied, 488 U.S. 842 (1988). Ordinarily, an

indictment which follows the language of the criminal statute is valid.

United States v. American Waste Fibers Co., 809 F.2d 1044, 1046

(4th Cir. 1987). The indictment stated the time frame of the activity,

the place of the offense, the other co-conspirators involved in the

charges, the controlled substance involved, and cited the statutes violated. The indictment was therefore sufficient.

III

In his pro se supplemental brief, Fields states that his plea was not

voluntary because he received ineffective assistance of counsel, and

his attorney and the Government's attorneys demanded that he sign

the plea agreement, although he refused to sign it at two earlier sessions. A claim of ineffective assistance is not cognizable on direct

appeal unless counsel's deficiency clearly appears on the face of the

record. United States v. DeFusco, 949 F.2d 114 (4th Cir. 1991), cert.

denied, 503 U.S. 997 (1992). The defendant must receive reasonably

competent assistance in the counseling of his guilty plea. A modified

Strickland1 error and prejudice test applies to errors in counseling

guilty pleas. The prejudice element requires showing that there is a

reasonable probability that, but for counsel's errors, the defendant

would not have pled guilty. Hill v. Lockhart, 474 U.S. 52 (1985).

Fields does not make any specific allegations of prejudice, nor does

he claim that he would not have pled guilty without counsel's advice.

The record does not clearly reflect ineffective assistance rendering

Fields' guilty plea involuntary.

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1 Strickland v. Washington, 466 U.S. 668 (1984).

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A guilty plea may also be invalid if the plea was induced by threats

or misrepresentations. Brady v. United States , 397 U.S. 742 (1970).

Fields states that his attorney and the Government attorneys "demanded" that he sign the agreement and "badgered" him. He states

that his counsel told him that if he didn't sign the plea agreement, the

judge would deny a suppression motion, the jury would find him

guilty, and the judge would give him the maximum sentence. Fields

stated during the Rule 11 hearing that no one had threatened him or

forced him to plead guilty, and that statement is presumed to be true.

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Fields' unsupported

allegations on appeal are insufficient to overcome his sworn statements at arraignment. Therefore, we find that his plea was voluntary.

IV

Fields' appellate counsel stated that Fields' plea complied with

Fed. R. Crim. P. 11. Fields alleges in his supplemental brief that the

court did not make a factual basis determination, and merely read to

Fields the conclusory statement of facts from the plea agreement. In

reviewing the adequacy of compliance with Rule 11, this court

accords "deference to the trial court's decision as to how best to conduct the mandated colloquy with the defendant." United States v.

DeFusco, 949 F.2d at 116. Rule 11 violations are evaluated under the

harmless error standard. Id. at 117. This court may vacate a conviction resulting from a guilty plea only if the trial court's violations of

Rule 11 affected the defendant's substantial rights. Id.

At the time the plea was entered, Fields was fifty-four years old

with an eighth-grade education and fair reading ability that allowed

him to read and understand all the documents in the case. He

informed the court that he was not under the influence of drugs or

alcohol. Fields stated that he was satisfied with his counsel's representation and the district court determined that Fields was competent

to enter his plea.

The court ascertained that Fields understood what rights he was

waiving by entering a guilty plea, and Fields acknowledged that he

was aware of his rights. Count One of the indictment, to which Fields

pled guilty, was read in open court. The court recited the elements of

the offense that the Government would have to prove at trial. The

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court also recited relevant information from the statement of facts

included in the plea agreement the parties agreed that the Government

would prove if the case went to trial.2 The judge stated that after the

executions of the warrants, Neverdon continued to traffic heroin and

replaced Fields with Douglas Donahue after Fields was in jail. Intercepts were placed on Neverdon's and Donahue's phones and taped

conversations implicated Fields in the conspiracy, and Fields was

taped participating in drug-related conversations.

Fields argues that the judge's review of the factual basis for his

plea did not establish the precise acts or conduct which constituted his

offense, and that the statement of facts reviewed was conclusory.

Considering the detailed review of the stipulated facts, we find that

the district court made an adequate assessment of the factual basis for

the plea.

The district court also carefully explained that the minimum penalty was five years and that the maximum penalty was forty years

imprisonment, a two million dollar fine, and a fifty dollar special

assessment, but that the Government was not seeking a fine or restitution, with the exception of the special assessment. The court stated

that the prison term was without parole and would be followed by a

term of supervised release of not less than four or more than five

years.

The court discussed the application of sentencing guidelines and

explained that it had the authority to depart from the guidelines in certain circumstances. The court further discussed the base offense level,

and Fields' tentative criminal history category, pending the presentence report. Fields stated that he had reviewed the sentencing

guidelines with his attorney and understood them.

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2 Specifically, the court stated that Fields assisted Robert Neverdon

with the distribution of heroin beginning before January 1993, was present when police executed a search warrant at the Neverdon residence

where nine bags of heroin and nine thousand dollars in U.S. currency

were found, and police executed a search warrant at Fields' residence

where they found a pound of heroin, cutting agents, hundreds of glassine

bags, and a triple beam scale.

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Finally, the court discussed the plea agreement. Fields assured the

court that he had adequate time to consider the agreement and decide

whether to sign it. He denied that he was pleading guilty as a result

of any force or threats. A review of the transcript reveals full compliance with Rule 11. Accordingly, Fields' claim of error is without

merit.

V

Violations of 21 U.S.C.A. § 846 receive the same penalties as those

prescribed for the underlying offense. Under 21 U.S.C.A.

§ 841(b)(1)(B), the sentence is a term of imprisonment of at least five

years and no more than forty years. Therefore, the district correctly

assessed the statutory minimum and maximum sentence.

The base offense levels for offenses involving drugs is found at

USSG § 2D1.1. This section provides for a base offense level of thirty

for offenses involving the distribution or possession with intent to distribute at least 700 grams but less than one kilogram of heroin. USSG

§ 2D1.1(c)(5). The stipulated facts of the plea agreement concluded

that at least 999 grams of heroin was reasonably foreseeable to Fields.

The pre-sentence report computed a two level reduction under

§ 3B1.2(b) based upon Fields' minor role in the conspiracy. The district court awarded an additional three-level reduction for acceptance

of responsibility under § 3E1.1, bringing the base offense level down

to twenty-five.

The pre-sentence report assessed four criminal history points. The

district court, however, found only two points to be appropriate, and

sentenced Fields under criminal history category II. The Guideline

range was therefore sixty-three to seventy-eight months imprisonment. USSG Ch. 5 Pt. A. The Government agreed in the plea agreement to recommend a sentence in the low end of the guideline range,

and honored its agreement. We find that the district court properly

sentenced Fields to sixty-two months imprisonment. 3

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3 The district court awarded a one-month reduction for time Fields

served while in jail on the state charges which were dismissed after

Fields pled guilty to the federal charge.

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VI

Fields' supplemental informal brief sets forth four additional

claims of ineffective assistance of counsel. Fields claims that his trial

counsel showed a lack of due diligence, and alleges that his attorney

refused or waived motions for discovery. He further alleges that his

attorney refused to independently investigate the case, "piggybacked" on his co-defendants' counsel, and refused to present the

issue of double jeopardy.

As discussed above, ineffective assistance claims are not properly

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), cert.

denied, 507 U.S. 942 (1993). Ineffective assistance is not apparent

from the record in this case. Fields' ineffective assistance claims

involve the failure to make an independent assessment of the case, or

a refusal to conduct the case as Fields wished. At the re-arraignment,

Fields stated that he was satisfied with his counsel's efforts and that

there was nothing that he asked his counsel to do that his counsel

failed, refused, or neglected to do. We therefore decline to consider

this argument on direct appeal.

VII

Finally, Fields alleges that the simultaneous prosecution of both the

state and federal charges for the same underlying offense violates

double jeopardy principles. Fields claims that the state prosecution

served as a tool for the federal prosecution, and therefore the dual

sovereignty doctrine should not apply.

The Fifth Amendment states that no person shall"be subject for the

same offense to be twice put in jeopardy of life or limb." U.S. Const.

amend. V. Under the "dual sovereignty" concept, a federal prosecution does not bar a subsequent state prosecution of the same person

for the same act, and a state prosecution does not bar a federal action.

Bartkus v. Illinois, 359 U.S. 121 (1959); United States v. Iaquinta,

674 F.2d 260 (4th Cir. 1982).

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Maryland dismissed the state charges when Fields pled guilty to the

federal charges based upon the same offense, Fields did not receive

criminal history points for the dismissed state charges during sentencing, and he received a one-month credit for the time he served on the

state charges. Although Fields alleges that the Maryland prosecution

merely acted as a tool for the federal prosecution, he offers no evidence in support of this claim. We find that the federal prosecution

did not violate double jeopardy principles.

VIII

We have examined the entire record in this case in accordance with

the requirements of Anders, and find no meritorious issues for appeal.

The court requires that counsel inform their 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.

We affirm the district court's judgment order. We deny Appellant's

motion to appoint new counsel. 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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