UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 00-4043

JOSEPH MORRIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-99-4)

Submitted: August 10, 2000

Decided: September 6, 2000

Before WILLIAMS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David Schles, STOWERS & ASSOCIATES, Charleston, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney, Steven
I. Loew, Assistant United States Attorney, Charleston, West 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Unpublished opinions are not binding precedent in this circuit.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:

Joseph Morris was convicted pursuant to his guilty pleas of money
laundering and tax evasion. On appeal, he alleges that the district
court plainly erred by failing to group his offenses for sentencing pur-
poses and in its calculation of his base offense level for money laun-
dering. Morris also asserts that his trial counsel rendered ineffective
assistance by failing to raise these issues at sentencing and by failing
to move for a downward departure pursuant to USSG§ 5K2.0, p.s.,*
based on the unfair effect of the money laundering guidelines. Find-
ing no reversible error, we affirm.

Morris was the president and fifty-percent owner of two corpora-
tions (collectively identified as "North American"). North American's
principal business was industrial and commercial painting, primarily
for the state of West Virginia.

In 1996, North American took out a line of credit with a local bank,
using certain existing and future receivables as security. The record
shows that Morris submitted inflated invoices to the state and then
used these same invoices to obtain funds from the bank on the line
of credit. The record further shows that Morris diverted funds from
the line of credit and payments from the state, which should have
been paid to the bank, to personal and corporate accounts. The parties
stipulated at sentencing that Morris diverted a total of approximately
$588,000 to personal and corporate use.

Morris was also convicted of tax evasion because he failed to pay
over $200,000 in taxes withheld from employees' wages. In addition,
Morris failed to report as income the amount of money diverted from
the bank. While this latter misconduct was not part of the offense of
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*U.S. Sentencing Guidelines Manual (1998).

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conviction, it was used as a specific offense characteristic to increase
Morris' base offense level for tax evasion pursuant to USSG
§ 2T1.1(b)(1).

Because Morris failed to challenge the calculation of his sentence
before the district court, we review his first two claims for plain error
and find none. See United States v. Walker, 112 F.3d 163, 165 (4th
Cir. 1997). The victims, harms, and conduct for the offenses of con-
viction were different. As a result, the offenses were not closely
related, and the grouping rule found in USSG § 3D1.2(c) did not
apply. See United States v. Vitale, 159 F.3d 810 (3d Cir. 1998). Like-
wise, we find no merit in Morris' claim that the district court improp-
erly included uncharged bank fraud amounts in its calculation of the
amount of loss attributable to money laundering fails because the par-
ties stipulated at sentencing that Morris laundered approximately
$588,000, and the court properly used this amount to calculate his
sentence.

Finally, we review claims of ineffective assistance of counsel on
direct appeal only when the ineffectiveness "`conclusively appears'"
on the record. United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995)
(internal quotation marks omitted). Otherwise, such claims should be
raised in the district court in a habeas corpus proceeding rather than
in this court by direct appeal. See id. Because Morris' substantive
claims fail, we find that counsel was not clearly deficient for not rais-
ing them. We further find that Morris fails to show that he certainly
would have prevailed had counsel filed a motion under USSG
§ 5K2.0.

Accordingly, we affirm Morris' sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court, and argument would not aid
the decisional process.

AFFIRMED

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