UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4253

LUTHER R. SIGMON,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CR-93-89)

Submitted: April 6, 1999

Decided: April 22, 1999

Before ERVIN and HAMILTON, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Charleston, West Virginia, for Appellant. Robert P.

Crouch, Jr., United States Attorney, Joseph W.H. Mott, Assistant

United States Attorney, Roanoke, 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Unpublished opinions are not binding precedent in this circuit.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:

Luther R. Sigmon appeals from the judgment and sentence

imposed on his convictions for conspiracy to distribute marijuana,

possess marijuana, possess with intent to distribute marijuana, distribute cocaine, possess with intent to distribute cocaine, and money

laundering.1 See 18 U.S.C. § 1956(a)(1)(A)(i) (West Supp. 1998); 21

U.S.C. § 846 (1994). On appeal, Sigmon contends that the court erred

in enhancing his sentence pursuant to 21 U.S.C.§ 841(b)(1)(B) (West

Supp. 1998). He also contends that he received ineffective assistance

of counsel. Finding no reversible error, we affirm.

In January 1991, while transporting marijuana from Texas to Virginia, Sigmon was arrested in Tennessee and charged with possession

with intent to distribute marijuana. He was convicted of the charge by

a Tennessee state court in October 1991 and sentenced to one year in

prison. In August 1993, a superseding indictment was issued by a federal grand jury charging Sigmon with conspiracy to distribute cocaine

and marijuana from January 1989 until August 1993 and money laundering. One of the overt acts charged in the indictment was conduct

that was the basis for the Tennessee conviction. In April 1994, Sigmon pled guilty to the two federal charges. Prior to his guilty plea,

the Government filed an information pursuant to 21 U.S.C. § 851

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1 Sigmon was convicted for the offenses in 1994. He did not note an

appeal, but he subsequently filed a motion under 28 U.S.C.A. § 2255

(West 1994 & Supp. 1998), contending that both his attorney and the

court failed to notify him of his right to appeal. The court found that Sigmon was not properly notified of his right to appeal, vacated the 1994

judgment, and reentered an amended final judgment in March 1998. Sigmon filed a timely notice of appeal from the amended final judgment.

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(1994) alleging that Sigmon was subject to enhanced punishment

under § 841(b)(1)(B).2

In June 1994, Sigmon was sentenced to concurrent terms of 120

months' imprisonment on the conspiracy conviction and 40 months'

imprisonment on the money laundering conviction. The court applied

the penalty enhancement of § 841(b)(1)(B) without objection from

Sigmon.

Sigmon now contends that the court committed plain error by using

the 1991 Tennessee conviction as a basis for enhancing his federal

sentence. Sigmon contends that since the conspiracy offense included

as overt conduct the conduct that was the basis for the Tennessee conviction, his sentence should not be enhanced based on that conviction.

The Government contends that in spite of the fact that such conduct

was also one of the overt acts committed during the course of the conspiracy, the enhancement was proper because Sigmon engaged in the

unlawful conspiratorial conduct after the Tennessee conviction

became final.

Because Sigmon did not object at sentencing to the imposition of

the ten-year minimum sentence, our review is limited to plain error.

Under this standard, we must find that (1) an error was committed,

(2) the error was plain, and (3) the error affected Sigmon's substantial

rights. If these requirements are satisfied, we must also decide

whether the error affected the fairness, integrity, or public reputation

of judicial proceedings. See United States v. Ford, 88 F.3d 1350,

1355-56 (4th Cir. 1996).

There was no error in this instance. As we observed in United

States v. Howard, 115 F.3d 1151, 1158 (4th Cir. 1997), the purpose

of the mandatory minimum sentence is to target recidivism. The Government presented substantial evidence that Sigmon engaged in the

conspiracy even after his 1991 conviction became final. At Sigmon's

guilty plea hearing, a government investigator testified as to Sigmon's

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2 Section 841(b)(1)(B) mandates that a defendant serve a minimum of

ten years in prison if the offense of conviction involves more than 100

kilograms of marijuana and the defendant committed the offense of conviction after a prior, final felony drug conviction.

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unlawful conspiratorial conduct after he served his prison sentence for

the 1991 conviction. The presentence investigation report also

included details of Sigmon's participation in the drug conspiracy after

his release from prison, and the court adopted the presentence report

as its findings of fact. According to the report, after his release, Sigmon continued to transport large quantities of marijuana from Texas

to Virginia. This "is precisely the type of recidivism to which section

841 is addressed." Id. Furthermore, because Sigmon's Tennessee conviction was final in November 1991, his unlawful post-incarceration

conduct certainly occurred after his conviction was final. Accordingly, we conclude that the court did not err in enhancing Sigmon's

sentence.

Sigmon also contends that his counsel was ineffective for failing

to object to the Government's use of statements made by Sigmon at

a pre-trial detention hearing that concerned his trips to Texas. According to Sigmon, the Government presented the statements to a grand

jury that subsequently indicted Sigmon. It is well established that

ineffective assistance of counsel claims should be raised by motion

under 28 U.S.C. § 2255 (West 1994 & Supp. 1998), unless the record

before the court conclusively demonstrates that counsel was ineffective. See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.

1991). Because the record does not conclusively show that counsel

was ineffective, we decline to review this issue.

Accordingly, we affirm Sigmon's convictions and sentences. 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 in the decisional process.

AFFIRMED

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