UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5463

SHERRY LUANN WATERS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Shelby.

Lacy H. Thornburg, District Judge.

(CR-94-44)

Submitted: October 17, 1996

Decided: October 25, 1996

Before MURNAGHAN and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen P. Lindsay, LINDSAY & HENSLEY, Asheville, North Carolina, for Appellant. Mark T. Calloway, United States Attorney, Robert

J. Conrad, Jr., Assistant United States Attorney, Charlotte, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Sherry Luann Waters appeals her conviction and sentence for conspiracy to possess more than 500 grams of cocaine and more than 50

grams of crack cocaine with intent to distribute, 21 U.S.C.A. § 846

(West Supp. 1996). Waters contends that the district court erred in

accepting her guilty plea because she received ineffective assistance

of counsel in connection with her plea. She also maintains that the

court erred in sentencing her by considering hearsay evidence in

determining the amount of drugs attributable to her without having an

adequate basis for judging its reliability. She further alleges that the

court erred in enhancing her sentence for possession of a firearm,

USSG § 2D1.1(b)(1),* and in finding that she had not accepted

responsibility for her conduct, USSG § 3E1.1. Finding no error, we

affirm the conviction and sentence.

At her guilty plea hearing, Waters deferred presentation of a factual

basis for the plea until sentencing. Information in her presentence

report revealed that she was involved in an extensive crack conspiracy

which flourished in Henderson County and Rutherford County, North

Carolina, from 1991 to March 1994. The leader of the conspiracy was

Lance McGrady, Waters' boyfriend. He arranged for the transportation of cocaine from Florida through Atlanta to North Carolina, where

it was cooked into crack at various locations and distributed to numerous lower-level conspirators.

In her interview with the probation officer, Waters said she suspected McGrady might be involved in drug dealing, but denied any

real knowledge of it. Waters objected to the probation officer's recommendation that she was responsible for more than 1.5 kilograms

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*United States Sentencing Commission, Guidelines Manual (Nov.

1994).

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of crack and several kilograms of powder cocaine, giving her a base

offense level of 38.

At the sentencing hearing, the government presented evidence of

Waters' involvement through the case agent, who summarized statements and trial testimony of other participants or observers. According to these statements, Waters lived in a house rented for her by

McGrady. When the house was searched, a revolver was found on top

of her refrigerator and a box of ammunition for the pistol was also in

the house. Waters twice carried cocaine into a co-conspirator's apartment where McGrady cooked it into crack. On one occasion, out of

a total of eighteen ounces of cocaine, McGrady cooked six to eight

ounces into crack. On that occasion, Waters was carrying a handgun

which she handed to McGrady at his request. She was also present

once when McGrady fronted Chucky Mayse eighteen ounces of

cocaine. On another occasion, Waters cleaned the utensils used to

cook four or five ounces of crack. She participated in shredding a

number of one-ounce crack cookies in her kitchen for re-cooking.

Waters also traveled to Florida with McGrady and wired money to

McGrady in Florida for Chucky Mayse, a close associate of

McGrady. Investigators confirmed this particular information when

they recovered Western Union receipts showing that Waters transferred money to McGrady in Florida on three occasions. Coconspirator Calvin Ferguson told investigators that he transported a

kilogram of cocaine from Florida for McGrady three times; on one

occasion McGrady and Waters met him in Atlanta and accompanied

him to North Carolina. In March 1994, Waters was present with

McGrady in one of four cars traveling together on I-85 north of

Atlanta. A kilogram of cocaine was seized from one of the cars; it was

wrapped in duct tape smeared with car wax. Similar tape and car wax

were found in the car in which Waters was riding. Mayse was arrested

later that day.

Waters presented no evidence to rebut the government's evidence

of her involvement. She testified that she had no knowledge of a firearm in her house and denied handing McGrady a firearm while he

was cooking crack. She argued that the drugs distributed by McGrady

and others were not reasonably foreseeable to her. The district court

found that the government had proved Waters' personal possession of

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a kilogram of cocaine and eighteen ounces of cocaine (510.3 grams)

at different times as well as her observation of crack production and

continuous association with the masterminds of the conspiracy. The

court found that at least 1.5 kilograms of crack was reasonably foreseeable to her.

Waters contends on appeal that the sentencing judge could not adequately assess the reliability of the hearsay evidence because a different judge presided at the trial of her co-conspirators, from which some

of the government's evidence was drawn, and because she had no

opportunity to cross-examine those witnesses. She claims that the district court abused its discretion and ultimately sentenced her on the

basis of false allegations because the court declined to review transcripts of her co-defendants' trials.

However, the government may meet its burden of proving by a preponderance of the evidence the amount of drugs attributable to a

defendant by presenting evidence at the sentencing hearing, including

hearsay evidence if the defendant is given the opportunity to rebut or

explain it. United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993);

United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). The

Confrontation Clause does not bar the sentencing court's consideration of reliable hearsay. United States v. Petty, 982 F.2d 1365, 1367-

69 (9th Cir.), amended, 992 F.2d 1015 (1993), cert. denied, 510 U.S.

1040 (1994). To comply with the requirements of due process, factual

evidence submitted at sentencing need only have a minimal indicia of

reliability, i.e., it must be more than mere allegation. United States v.

Hicks, 948 F.2d 877, 883 (4th Cir. 1991) (citations omitted). Here, all

the statements summarized by the agent were consistent. Moreover,

Waters had the opportunity to cross-examine the government agent at

sentencing, and also testified herself, though she chose not to discuss

the extent of her involvement. She did submit a statement to the court

which purported to explain fully her knowledge of the conspiracy. On

these facts, we find that the district court did not err in considering

the government's hearsay evidence to determine the amount of drugs

for which she was responsible.

Moreover, the government's evidence that Waters was present and

possessed a firearm while McGrady was cooking crack and that a

firearm was stored in her house, where crack was re-processed on one

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occasion, was more than adequate to support a two-level enhancement. USSG § 2D1.1(b)(1), comment. (n.3). While Waters testified

that she never possessed a firearm and was unaware of the firearm

found in her house, the district court did not find her testimony credible, and thus the enhancement was not clearly erroneous.

Waters argues that she was entitled to a three-level reduction for

acceptance of responsibility based on her guilty plea and the written

statement she submitted to the court at sentencing. The statement is

not contained in the materials presented on appeal; however, the district court found it self-serving and in conflict with other evidence

which the court found true. In addition, the court found that Waters

had testified untruthfully when she said she did not possess a firearm

during the conspiracy. A defendant has the burden of demonstrating

acceptance of responsibility by truthfully admitting the conduct comprising her offense, including all relevant conduct. USSG § 3E1.1,

comment. (n.1(a)). The court's factual finding on this issue is

reviewed for clear error. United States v. Curtis, 934 F.2d 553, 557

(4th Cir. 1991). The record discloses that, despite her guilty plea,

Waters denied or minimized her conduct throughout the proceedings

below. Therefore, the court did not clearly err in denying her the

adjustment.

Finally, Waters claims that the district court erred in allowing her

to plead guilty because her attorney was ineffective in failing to

advise her accurately, at the time of her plea, as to the amount of

crack for which she would be held responsible. A claim of ineffective

assistance is not properly raised on direct appeal unless the record discloses conclusively that defense counsel was ineffective. United

States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992), cert. denied,

507 U.S. 942 (1993). Here, Waters' attorney asserted at sentencing

that he was surprised by additional evidence of her involvement

which was developed after her plea. However, Waters was advised at

the Fed. R. Crim. P. 11 hearing that she could be facing a sentence

of ten years to life and that she could not withdraw her plea simply

because her sentence was harsher than expected. She did not ask to

withdraw her plea on this ground and she was not entitled to do so.

United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991), cert.

denied, 503 U.S. 997 (1992). Because the record does not conclusively show ineffective assistance, we do not address the issue.

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For the reasons discussed, the conviction and sentence are

affirmed. We dispense with oral argument because the facts and legal

contentions are adequately presented in the record and briefs, and oral

argument would not aid the decisional process.

AFFIRMED

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