UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

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Unpublished opinions are not binding precedent in this circuit.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:

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 appoint-
ment 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 bul-
lets 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 Stew-
art robbed the bank. Stewart later divided the money with them and
Smalls, keeping more than half of it for himself. Miles and Suber tes-
tified at Stewart's trial.

In calculating Stewart's offense level, the probation officer recom-
mended 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 guide-
line 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 supple-
mental 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 compe-
tency 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 infor-
mation 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 proceed-
ing 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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