UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 99-4829

GERTRUDE BURDINE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CR-98-11)

Submitted: July 20, 2000

Decided: August 3, 2000

Before LUTTIG, WILLIAMS, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gilbert K. Davis, William M. Stanley, DAVIS & STANLEY, L.L.C.,
Fairfax, Virginia, for Appellant. Robert P. Crouch, Jr., United States
Attorney, Rick A. Mountcastle, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Gertrude Burdine pled guilty to mail fraud, see 18 U.S.C. § 1341
(1994), and received a sentence of twenty-one months imprisonment.
She appeals her sentence, contending that the district court clearly
erred in finding that the offense involved more than minimal plan-
ning, see U.S. Sentencing Guidelines Manual§ 2F1.1(b)(2)(A)
(1998), and clearly erred in finding that the government did not
breach the plea agreement by not moving for a substantial assistance
departure. See USSG § 5K1.1, p.s. We affirm.

Between 1987 and 1991, Gertrude Burdine was part owner and an
officer of Independent Home Medical Rentals, Inc. (IHMR), a medi-
cal company that, among other things, provided several kinds of oxy-
gen delivery systems to miners claiming benefits from the
Department of Labor (DOL) for black lung disease. Burdine's sister,
Doris Jean McConnell, was president of IHMR. In 1995, Burdine left
IHMR and soon afterward joined a similar company, Southern Air
Home Equipment (SAHE), which was started by her daughter. At
both companies, Burdine participated in billing the DOL for gaseous
oxygen purportedly supplied to Black Lung claimants when oxygen
concentrators, a less expensive means of oxygen delivery, had actu-
ally been supplied.

Under the terms of her plea agreement, Burdine was to be given an
opportunity to provide substantial assistance. With the help of her two
sisters, Jean McConnell and Betty Kilgore, she attempted to assist the
government through controlled purchases of drugs. However, in
November 1998, the government notified the defendants, including
Burdine, that the controlled purchases had so far involved such small
quantities of drugs that their efforts were unlikely to be deemed sub-
stantial assistance. The government encouraged the defendants to
make further efforts. A similar letter was sent in February 1999,1 but
Burdine provided no further assistance.
_________________________________________________________________

1 This letter was misdated November 12, 1998.

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Before sentencing, Burdine asked the district court to grant a
downward departure for substantial assistance, alleging, first, that she
had provided substantial assistance and, second, that the government
had failed to give her a reasonable opportunity to render substantial
assistance because it refused to provide funds for larger drug pur-
chases, failed to pursue criminals she identified, and refused to moni-
tor a drug purchase she arranged to make. Burdine also moved for
specific performance of the plea agreement, arguing that the govern-
ment had breached the agreement by not allowing her to provide sub-
stantial assistance.

At Burdine's sentencing in October 1999, the district court first
found, over Burdine's objection, that her offense involved more than
minimal planning. On appeal, Burdine challenges the district court's
finding, arguing that each false monthly billing she submitted was
merely opportune. Application Note 2 to USSG § 2F1.1 notes that
"more than minimal planning" is defined in the commentary to USSG
§ 1B1.1. Application Note 1(f) to § 1B1.1 defines more than minimal
planning as "more planning than is typical for commission of the
offense in simple form . . . [and] is deemed present in any case
involving repeated acts over a period of time, unless it is clear that
each instance was purely opportune." More than minimal planning
"also exists if significant affirmative steps were taken to conceal the
offense . . . ." Id.

In Burdine's view, she simply took advantage of an opportunity to
defraud the DOL that was presented to her each month, thus commit-
ting the offense in a simple form, though multiple times. The district
court's factual determination that an offense involved more than mini-
mal planning is reviewed for clear error. See United States v. Pearce,
65 F.3d 22, 26 (4th Cir. 1995). We find that the district court did not
clearly err in rejecting Burdine's argument. See United States v. Mar-
cum, 16 F.3d 599, 603 (4th Cir. 1994) (repeated fraudulent acts over
two years were not isolated incidents and demonstrated more than
minimal planning); United States v. West, 942 F.2d 528, 531 (8th Cir.
1991) (almost any crime consisting of a pattern of activity over a long
period of time would involve more than minimal planning).2
_________________________________________________________________
2 Burdine suggests that the district court may have mistakenly believed
that Burdine took steps to conceal her fraud, as he found that the McCon-
nells did. However, the court's finding was not based on concealment by
Burdine, nor does the record reveal any mistaken attribution to her of the
McConnells' conduct.

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Concerning Burdine's substantial assistance motion, the district
court heard testimony from Burdine, Jean Kilgore, and investigators
from the DOL, the Virginia State Police, the Southwest Virginia
Regional Drug Task Force, and the Federal Bureau of Investigation.
Burdine testified that she and her sisters could have bought larger
quantities of drugs, but were limited by the amount of money the gov-
ernment agents agreed to provide for drug purchases. Virginia State
Police Special Agent Timothy Price testified that he had a limit on the
amount of prescription drugs the state would buy in a controlled pur-
chases of prescription drugs. However, he also said that, in the two
controlled purchases made by the defendants, the limit did not pose
any problem. Special Agent Robert Givens of the Virginia State
Police Drug Enforcement Division testified that Betty Kilgore told
him several times that she could set up a large cocaine deal with a
dealer from Kentucky, but did not.

Denying Burdine's motions for departure, the district court found
that her plea agreement obligated the government to move for a
departure if she provided substantial assistance, but that she had in
fact given little assistance. The court also found that Burdine had nei-
ther produced credible evidence that she could have provided greater
assistance which was prevented by the government's lack of coopera-
tion, nor shown that the government refused to make a § 5K1.1
motion out of any unconstitutional motive. Finally, the court stated
that, even if the government had moved for a substantial assistance
departure, it would not have granted the motion because it did not
believe that Burdine's assistance justified a departure. Having deter-
mined that Burdine's guideline range was 15-21 months, the court
imposed a sentence of 21 months imprisonment.

When there is no plea agreement or the plea agreement does not
obligate the government to move for a departure if the defendant pro-
vides substantial assistance, the district court may review the govern-
ment's decision not to move for a departure only if the government's
decision is based on an unconstitutional motive or is not related to a
legitimate government purpose. See Wade v. United States, 504 U.S.
181, 185-86 (1992). If the government promises in the plea agreement
that it will move for a departure in the event the defendant provides
substantial assistance, and the defendant alleges that the government's
refusal to make the motion is a breach of the agreement, the district
court may consider whether a breach has occurred. See United States

                    4
v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). The defendant bears
the burden of proving by a preponderance of the evidence that the
government has breached the agreement, i.e., that he has actually
given "the degree of substantial assistance contemplated by the agree-
ment." Id. The court's factual determination as to whether a breach
occurred is reviewed under the clearly erroneous standard. See id.

Here, the district court determined that, even if the plea agreement
obligated the government to move for a departure, no breach occurred
because Burdine had not provided substantial assistance. The court
also found that her failure to do so was not attributable to the govern-
ment. We find that the court did not clearly err in so holding. In any
case, the district court further held that it would not have departed
even if it found that the government had breached the agreement and
thus could be compelled to make a departure motion. That decision
is not reviewable. See United States v. Bayerle , 898 F.2d 28, 31 (4th
Cir. 1990).

During the pendency of this appeal, Burdine sent a letter to a judge
of this court which we construe as a pro se motion to raise additional
issues. We grant the motion but find no merit in her claims. Burdine
first contends that her attorneys rendered ineffective assistance during
plea negotiations and the guilty plea proceedings. This court does not
review claims of ineffective assistance on direct appeal unless conclu-
sive evidence of ineffectiveness appears on the face of the record. See
United States v. Hoyle, 33 F.3d 415, 418-19 (4th Cir. 1994). Because
the record does not conclusively establish ineffectiveness, Burdine's
claims should be raised in a motion to vacate pursuant to 28 U.S.C.A.
§ 2255 (West Supp. 2000). See United States v. Williams, 977 F.2d
866, 871 (4th Cir. 1992). Burdine also asserts that her plea agreement
provided that she would serve her sentence at the Federal Correctional
Institution at Alderson, West Virginia. Our review of the agreement
discloses no such provision. Under 18 U.S.C.A. § 3621(b) (West
1985 & Supp. 2000), the Bureau of Prisons designates the place of a
prisoner's confinement.

We therefore affirm the sentence. 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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