UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4928

EDWARD BUFUTH PHILLIPS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Joseph Robert Goodwin, District Judge.

(CR-96-93)

Submitted: November 25, 1997

Decided: January 28, 1998

Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Timothy F. Cogan, CASSIDY, MYERS, COGAN, VOEGELIN &

TENNANT, L.C., Wheeling, West Virginia, for Appellant. Rebecca

A. Betts, United States Attorney, Ray M. Shepard, Assistant United

States Attorney, Huntington, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Edward Bufuth Phillips pled guilty to distributing cocaine in violation of 21 U.S.C.A. § 841 (West 1981 & Supp. 1997), and received

a sentence of 108 months imprisonment. Phillips appeals his sentence.

He challenges the district court's finding that he possessed a weapon

in connection with the offense, see USSG§ 2D1.1(b)(1),* and claims

that the court considered information protected under his cooperation

agreement in making that determination. See USSG § 1B1.8. He

argues that the court clearly erred when it refused to give him a mitigating role adjustment. See USSG § 3B1.2. He also alleges that he

was a victim of sentencing entrapment because crack cocaine was

included in his relevant conduct, see USSG§ 1B1.3, that the government failed to honor a promise to recommend a substantial assistance

departure, see USSG § 5K1.1, and that he received ineffective assistance of counsel. We affirm.

Phillips took over his son's cocaine business after his son was

severely injured in a car accident. From early 1995 until his arrest in

May 1996, Phillips regularly flew from his home in California to

Winston-Salem, North Carolina, where his son lived. He established

a relationship with his son's New York sources, Felix Ortega and

Lewis Mercado, and with his son's customers in North Carolina and

West Virginia. Phillips helped Mercado and Ortega find an apartment

in Huntington, West Virginia. He also arranged drug sales and participated in sales of cocaine and crack. On April 13, 1995, in Huntington,

Phillips and Mercado sold 73.5 grams of crack and .49 grams of

cocaine powder to two college students, who in turn sold it to an

undercover agent while Phillips was present. In early 1996, Ortega

and Mercado were arrested in Huntington, West Virginia. Thereafter,

Phillips found a source of cocaine in California and made about five

more trips to North Carolina, bringing between nine and thirty-six

ounces of cocaine with him each time, so that he could continue to

sell to his son's customers. Phillips was arrested in May 1996 after

selling five ounces of cocaine at a motel in Dunbar, West Virginia.

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*U.S. Sentencing Guidelines Manual (1995).

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He had a 9 mm. pistol with him in the motel room, as well as eleven

ounces of cocaine and $12,812 in cash.

Phillips immediately began to cooperate with the government and

eventually pled guilty to distributing the cocaine sold on April 13,

1995, in Huntington. His plea agreement did not mention a substantial

assistance departure, although the government attorney acknowledged

during the guilty plea hearing that the possibility of such a departure

was one of the benefits Phillips would gain through a guilty plea. The

agreement provided that information supplied by Phillips during his

cooperation would not be used to determine his sentence unless the

government obtained the same information from an independent

source. Before accepting Phillips' guilty plea, the district court specifically informed him that, if the crack distributed on April 13, 1995,

were included in his relevant conduct, his base offense level would

be at least thirty-two. See USSG § 2D1.1(c). When the presentence

report was prepared, the crack and the firearm seized from Phillips

were used to calculate his sentence.

Phillips made no objection to the probation officer's calculation,

but requested a minor or minimal role adjustment, arguing unsuccessfully that he had acted for the benefit of his son and had simply carried out his son's instructions. On appeal, he contends that the district

court clearly erred in denying him the adjustment because Ortega and

Mercado were more culpable than he; he also represents that the

cocaine he obtained in California was of low quality. Sentence adjustments and enhancements are determined based on relevant conduct

which, for drug offenses, includes all acts and omissions that were

part of the same course of conduct as the offense of conviction. See

USSG § 1B1.3(a)(2). Phillips actively arranged drug sales, found his

own source of cocaine when it became necessary, and personally sold

cocaine. We have no difficulty in finding that he was not "substantially less culpable" than the other participants in the overall offense.

See USSG § 3B1.2, comment. (backg'd).

Phillips alleges that the district court considered statements he

made under the cooperation agreement to find that he possessed a

weapon in connection with the offense. Phillips did not object to the

enhancement at sentencing, but the district court asked why it applied.

The government attorney explained that Phillips was in possession of

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a firearm when he was arrested immediately following a cocaine sale.

In a later exchange, the government attorney added that there was no

direct evidence that Phillips possessed a firearm during the April 13

distribution, but that the undercover agent reported that Phillips told

her he usually carried a gun when he traveled. The government attorney also mentioned that, when Phillips was debriefed, he admitted

that he always carried a firearm when he was in Huntington.

The enhancement for weapon possession is to be made if a firearm

is present unless it is clearly improbable that the weapon was connected to the offense. USSG § 2D1.1, comment. (n.3). We review the

district court's factual finding for clear error. United States v. Apple,

915 F.2d 899, 914 (4th Cir. 1990). There is no question that a weapon

was present during Phillips' offense, given that he had a firearm in his

possession when he was arrested and that enhancements are determined by relevant conduct and not simply by conduct comprising the

offense of conviction. Therefore, the district court did not need to

consider the admission Phillips made during his debriefing to find that

the enhancement applied. The court found "that the defendant did

possess the firearm during transactions falling within the relevant

conduct provisions." The court did not clearly err in making the

adjustment.

Phillips further argues that it was a violation of due process to

require him to prove that the firearm he possessed at his arrest was

not connected to his drug trafficking, particularly when he was not

charged with a firearm offense. Phillips did not raise this issue in the

district court and thus has failed to preserve it for other than plain

error review. See United States v. Olano, 507 U.S. 725 (1993) (plain

error review requires error, plain under current law, that is prejudicial

to defendant and seriously affects fairness, integrity or public reputation of judicial proceedings). Phillips cannot demonstrate plain error

because the guideline does not shift the burden of proof to the defendant; the government is required to prove not only that the weapon

was present but that it is not clearly improbable that it was connected

to the offense. See United States v. Payne, 81 F.3d 759, 764 (8th Cir.

1996). And due process guaranteed that Phillips had an opportunity

at sentencing to present contrary evidence. He represented that the

firearm was for his personal protection, a motivation which the district court found was connected to the offense.

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We find no evidence of sentencing entrapment in the fact that the

undercover agent asked to buy crack instead of cocaine powder on

April 13, 1995. See United States v. Jones, 18 F.3d 1145, 1151-55

(4th Cir. 1994) (sentencing entrapment results from outrageous conduct by law enforcement authorities). According to the agent's report,

Phillips initially referred the request to Ortega and Mercado, but later

accompanied Mercado when the crack was delivered and told the

agent and the confidential informants present how he had participated

in cooking the crack. Therefore, Phillips was properly held accountable for the crack distribution.

Phillips contends that the government failed to keep a promise to

recommend a substantial assistance departure. His plea agreement

contained no promise of a motion pursuant to USSG§ 5K1.1 should

he provide substantial assistance, and when he entered his guilty plea

he acknowledged that his plea was not induced by any other promises.

At a post-sentencing hearing which the district court convened in

response to a letter from Phillips, the district court determined that the

government had never promised, informally or otherwise, to file a

motion for substantial assistance. At that hearing, the government

attorney explained that he had serious concerns about the truthfulness

of the testimony Phillips gave before a grand jury as part of his cooperation. The attorney denied telling Phillips' attorney that he intended

to recommend that the United States Attorney file a substantial assistance motion. When there has been no promise of a departure motion

in return for substantial assistance, a defendant is not entitled to relief

unless the government's failure to request a departure results from an

unconstitutional motive. See Wade v. United States, 504 U.S. 181,

185-87 (1992). Phillips did not make the required showing.

Finally, Phillips claims that he received ineffective assistance of

counsel in connection with his sentencing. Such claims are not properly presented on direct appeal unless the record conclusively establishes that the defendant received inadequate representation. United

States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). In this case,

the record does not, on its face, establish that Phillips received ineffective assistance from his attorney.

The sentence is therefore affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented

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in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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