UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4137

ROBERT HENRY STEWART, JR., a/k/a

Robert Abney, a/k/a Robert Stewart,

a/k/a Champ Stewart,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Aiken.

Charles E. Simons, Jr., Senior District Judge.

(CR-96-1)

Submitted: January 20, 1998

Decided: February 18, 1998

Before WIDENER and HALL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John W. Weeks, Aiken, South Carolina, for Appellant. J. Rene Josey,

United States Attorney, Dean A. Eichelberger, Assistant United States

Attorney, Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Robert Henry Stewart, Jr., was convicted by a jury of conspiracy

to commit armed bank robbery, 18 U.S.C. § 371 (1994), 18 U.S.C.A.

§ 2113(d) (West Supp. 1997); armed bank robbery, 18 U.S.C.A.

§ 2113(a), (d), 18 U.S.C. § 2 (1994); unlawful use of a firearm, 18

U.S.C.A. § 924(n) (West Supp. 1997); and use of a firearm in a crime

of violence, 18 U.S.C.A. § 924(c) (West Supp. 1997). Stewart was

sentenced as a career offender, see U.S. Sentencing Guidelines

Manual § 4B1.1 (1995), to a total of 387 months imprisonment. He

challenges the district court's determination that he was a leader in

the offense. See USSG § 3B1.1. Stewart has also submitted pro se

motions requesting leave to file a supplemental brief and the appointment of new counsel for the purpose of filing a supplemental brief on

his behalf. We affirm the sentence imposed and deny the motions for

leave to file a supplemental brief and for new counsel.

Stewart robbed a bank in Beech Island, South Carolina, at gunpoint

on January 8, 1996. He had previously borrowed a gun from Raheem

Smalls. Two accomplices, Kuniaki Miles and Fry Suber, bought bullets for the gun in North Augusta, Georgia, at Stewart's direction.

Miles drove Stewart around while he cased several banks. Suber went

inside one bank to see whether a security guard was present. After

Stewart selected a bank, Miles and Suber waited outside while Stewart robbed the bank. Stewart later divided the money with them and

Smalls, keeping more than half of it for himself. Miles and Suber testified at Stewart's trial.

In calculating Stewart's offense level, the probation officer recommended an adjustment for being a leader in the offense. However,

because Stewart had two prior convictions for armed robbery, he was

sentenced as a career offender. See USSG § 4B1.1. Although the facts

would permit us to affirm as not clearly erroneous the district court's

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determination that Stewart was a leader in the offense, the issue need

not be reached at all because the adjustment did not affect the guideline range once the court correctly found that Stewart was a career

offender. We therefore affirm the sentence imposed.

While his appeal was pending, Stewart moved for the appointment

of new counsel or, in the alternative, for leave to file a pro se supplemental brief. Despite an invitation to file his supplemental brief,

Stewart never did so. Instead, he asked that new counsel be appointed

to file a supplemental brief on his behalf. We now deny both motions.

In his motion for appointment of new counsel, Stewart asserts that

he is mentally incompetent and was so at the time of the robbery; he

claims that his attorney was ineffective in failing to request a competency hearing. However, the materials presented on appeal, chiefly the

presentence report, provide only very weak support for Stewart's

claim of incompetency, and it is not clear whether the relevant information was available to his attorney before the presentence report was

prepared. His other claims similarly fail to establish that Stewart has

received inadequate representation in the district court or on appeal.

Consequently, these claims should be decided in a collateral proceeding rather than on direct appeal. See United States v. Smith, 62 F.3d

641, 651 (4th Cir. 1995).

Accordingly, we affirm the sentence imposed and deny the motions

for appointment of new counsel and for leave to file a supplemental

brief. 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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