UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4361

HENRY HUGH ROBINSON, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CR-93-5)

Submitted: March 23, 1999

Decided: April 6, 1999

Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed as modified by unpublished per curiam opinion.

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COUNSEL

Shanon S. Echols, Charlottesville, Virginia, for Appellant. Robert P.

Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assistant

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Unpublished opinions are not binding precedent in this circuit.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

Henry Hugh Robinson, Jr., pled guilty to one count of conspiracy

to possess with intent to distribute cocaine base in violation of 21

U.S.C. § 846 (1994), and one count of using or carrying a firearm

during and in relation to drug trafficking offenses in violation of 18

U.S.C.A. § 924(c) (West Supp. 1998). He was sentenced to a 420

month term of imprisonment. He appeals aspects of his plea and sentence. Finding no reversible error, we affirm.

This case arrives on direct appeal after Robinson filed a partially

successful 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) motion.

Upon consideration of Robinson's § 2255 motion, the district court

found that it had not informed Robinson of his right to appeal following entry of the original criminal conviction. To provide Robinson an

opportunity to appeal, the § 2255 court determined that Robinson's

original judgment and commitment order should be vacated and reentered. Summary judgment was granted for the Government on the

remainder of Robinson's claims.1 The district court thereupon vacated

and re-entered Robinson's judgment and commitment order. This

direct appeal followed.

The first of six arguments Robinson raises on appeal is that the reentry of the judgment and commitment order constituted resentencing

for which Robinson had a right to be present under Federal Rules of

Criminal Procedure 32 and 43. We disagree. The judgment and commitment order were ministerially re-entered solely to effectuate Robinson's right to appeal. We find that the district court did not err by

reimposing the original judgment without a hearing and without

requiring Robinson's presence.

Robinson next asserts that he should be allowed to withdraw his

plea to the § 924(c) charge in light of Bailey v. United States, 516

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1 Robinson's appeal from the district court's order granting partial summary judgment for the Government was dismissed by this court. See

United States v. Robinson, No. 98-6578 (4th Cir. Oct. 19, 1998) (unpublished).

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U.S. 137 (1995). Robinson claims that the facts presented at the plea

hearing were insufficient to support a finding either that he used or

that he carried a firearm under § 924(c).

Section 924(c)(1) prohibits using or carrying a firearm during and

in relation to a drug trafficking crime. See 18 U.S.C.A. § 924(c). In

Bailey, the Supreme Court held that in order to obtain a conviction for

using a firearm in the commission of a drug crime, the government

must show active employment of the weapon. See Bailey, 516 U.S.

at 144. We affirm a district court's finding of a sufficient factual basis

for a guilty plea to a violation of § 924(c) unless the court abused its

discretion in holding that there was a factual basis for the defendant

to plead guilty to either using or carrying a firearm. See United States

v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).

Robinson's indictment and plea agreement both state that he "used

or carried" a firearm during and in relation to drug trafficking

offenses. (JA at 21, 67-68). At Robinson's plea hearing the prosecutor

stated that, to establish the § 924(c) count, the Government had to

demonstrate that Robinson "carried" a firearm to aid the drug trafficking conspiracy. (JA at 37-38). To support the § 924(c) count, the Government offered the testimony of a police officer who stated that,

according to the reports of numerous confidential informants and

cooperating witnesses, Robinson was known to "carry" a firearm during drug trafficking activities. (JA at 53-54).

We agree with Robinson that there was insufficient evidence to

support a finding that he "used" a firearm; however, we find that the

evidence was sufficient to support a plea of guilty to carrying a firearm under § 924(c). See generally Muscarello v. United States, 118

S. Ct. 1911, 1914-16 (1998) (discussing meaning of "carry" in

§ 924(c)); see also Mitchell, 104 F.3d at 653 (finding that conveying

a firearm on one's person during a drug offense"is perhaps the clearest example of a violation of the `carry' prong"). We therefore conclude that the district court did not abuse its discretion in finding a

sufficient factual basis for Robinson's plea. See Mitchell, 104 F.3d at

652. We note that the judgment order employs the verb "use." We

instruct the district court to modify the judgment to "carry," to reflect

the evidence offered at the plea hearing.

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Third, Robinson contends that he was denied the effective assistance of counsel at sentencing. Ineffective assistance claims are generally raised in a motion pursuant to 28 U.S.C.A.§ 2255 (West 1994

& Supp. 1998). See United States v. Hoyle, 33 F.3d 415, 418 (4th Cir.

1994). For a claim of ineffective assistance of counsel to be heard on

direct appeal it must "conclusively appear[ ] in the trial record itself

that the defendant was not provided with effective representation." Id.

(citations omitted). We do not find such conclusive evidence in the

record before us; we therefore decline to reach this issue.2

Robinson next argues that the district court erred in enhancing his

sentence based on Robinson's organizing or leadership role in the

conspiracy; Robinson maintains that there was no reliable information

before the court that would support the enhancement. We note that

Robinson failed to object to the enhancement at sentencing. We therefore review only for plain error. See United States v. Grubb, 11 F.3d

426, 440 (4th Cir. 1993).

At the plea hearing, the prosecutor questioned a police officer

about Robinson's role in the conspiracy. (JA at 51). The police officer

answered that, "[Robinson] was `the man.'[He] was probably the biggest dealer in Culpeper at that time." (JA at 51). The testimony of a

credible government witness is sufficient to support a role enhancement. See United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir.

1995). Moreover, Robinson's presentence report, to which he failed

to object, recites that he distributed cocaine to"his individual street

sellers" and goes on to name five of them. We therefore find that the

district court did not plainly err in increasing Robinson's offense level

for playing an organizing or leadership role in the drug conspiracy.

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2 Similarly, to the extent that Robinson attempts to raise a Baileyassociated ineffective assistance claim, i.e., that his attorney was ineffective for advising Robinson to plead guilty because there was an insufficient factual basis to support a guilty plea under§ 924(c), we decline to

reach the issue on the record before us. See Hoyle, 33 F.3d at 418.

We note that, should Robinson desire to file another§ 2255 motion,

he would not need authorization from this court because such a motion

would not be considered "second or successive" within the meaning of

§ 2255. See In re Goddard, ___ F.3d ___, 1999 WL 129274, *4 (4th Cir.

1999).

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In claims five and six, Robinson asserts that he should have been

granted a downward departure in his sentence based on substantial

assistance because he was instrumental in getting two of his coconspirators to plead guilty. Robinson's plea agreement provided that

he would furnish information and testimony to the Government

regarding its ongoing criminal investigation, and in any proceedings

resulting from that investigation. The agreement further provided that,

if the United States Attorney deemed Robinson's cooperation to be

substantial, the Government might move for a sentence reduction

under 18 U.S.C. § 3553(e) (1994) and U.S. Sentencing Guidelines

Manual § 5K1.1 (1993). The Government did not move for a sentence

reduction based on substantial assistance, and the district court denied

Robinson's request for the court to effect such a reduction on its own.

Robinson argues that the Government breached the plea agreement

by not moving for a departure. He relies on this court's decision in

United States v. Conner, 930 F.2d 1073 (4th Cir. 1991). In Conner we

held that, if the prosecution promises in a plea agreement to make a

§ 5K1.1 motion in return for substantial assistance, such a promise is

enforceable. See id. at 1075-76. However, the plea agreement in this

instance differs in critical ways from the plea agreement in Conner.

Robinson's plea agreement does not contain binding language.

Indeed, the instant plea agreement states that,"if the defendant renders complete and truthful cooperation and testimony. . ., the United

States may, but is not required to, make a motion of substantial assistance." (JA at 70). Robinson's agreement further provides that the

decision whether Robinson's assistance is deemed substantial "shall

be in the sole discretion of the United States Attorney." (JA at 70).

In contrast to the Conner agreement, Robinson's plea agreement did

not give rise to an enforceable promise. Indeed, the Government

explicitly reserved discretion rather than promise anything. See

United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994).3 We there-

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3 Robinson also argues that because the Government conceded, in a

wholly unrelated case, that a defendant provided substantial assistance

when he was available and willing to testify against codefendants, it was

clearly erroneous for Robinson's sentencing court not to have found that

Robinson provided substantial assistance in this instance. See United

States v. David, 58 F.3d 113, 114 (4th Cir. 1995). The Government in

this case did not concede that Robinson provided substantial assistance,

nor was the district court bound by the concession the Government made

in David.

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fore find that the Government did not breach the agreement by failing

to move for a departure.

Robinson maintains that the Government also breached the plea

agreement by not informing the district court that his cooperation

resulted in two of his co-conspirators pleading guilty. While it is true

that the prosecutor did not offer the district court the information that

Robinson contributed to the decision of two co-conspirators to plead

guilty, we find any such error harmless as Robinson provided the district court with the information, which was confirmed by the prosecutor. (JA at 119-21).

Finally, Robinson alleges that the district court erred when it criticized the Conner decision. However, the district court expressly

informed Robinson that the court's opinion of Conner had nothing to

do with Robinson's case, and the court proceeded to hear Robinson's

argument for a departure, in substantial compliance with Conner. (JA

at 118-23). We find no error in the district court's conduct.

Accordingly, we affirm the district court's decision on all grounds.

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 AS MODIFIED

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