                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4565


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RUBEN PEREZ-RUIZ, a/k/a Sarco,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00056-MOC-1)


Submitted:   February 27, 2015                Decided:   May 6, 2015


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul F. Herzog, PAUL F. HERZOG, P.A., Fayetteville, North
Carolina, for Appellant.    Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Ruben Perez-Ruiz appeals from his conviction and 200-month

sentence imposed pursuant to his guilty plea to conspiracy to

possess with intent to distribute cocaine and cocaine base.                               On

appeal,      Perez-Ruiz’s        counsel    submitted         a    brief       pursuant   to

Anders v. California, 386 U.S. 738 (1967), certifying that there

are    no    meritorious        grounds    for    appeal,         but   raising       several

issues.       Although advised of his right to do so, Perez-Ruiz has

not filed a supplemental brief.                  The Government declined to file

a brief. *        After a thorough review of the record, we affirm.

                                            I.

       Perez-Ruiz        first    asserts        that    he    received         ineffective

assistance of counsel.            Claims of ineffective assistance are not

usually cognizable on direct appeal.                    United States v. King, 119

F.3d       290,    295   (4th     Cir.     1997).        To       allow       for   adequate

development of the record, a defendant generally must bring his

ineffective         assistance    claims     in     a   28    U.S.C.      §    2255    (2012)

motion.       King, 119 F.3d at 295.              An exception exists, however,

where        the      record      conclusively          establishes             ineffective




       *
       In addition, the Government has not filed a motion to
dismiss based upon Perez-Ruiz’s appellate waiver in his plea
agreement. We decline to raise the waiver sua sponte.




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assistance.       United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir. 2006).

     Perez-Ruiz contends that counsel discussed the presentence

report with him in an untimely manner.                          However, there is no

indication    from       the   record           that     trial        counsel    rendered

performance        falling      below           an      objective         standard      of

reasonableness or that Perez-Ruiz was prejudiced.                               The court

offered Perez-Ruiz extra time to discuss the PSR, and Perez-Ruiz

stated that he was prepared to go forward.                       Moreover, the record

does not disclose any meritorious objections that would have

been aided by extra consultation.                    Thus, because the record does

not conclusively establish ineffective assistance, this claim is

not cognizable in this appeal.

                                          II.

     Counsel next questions whether the Government engaged in

misconduct during Perez-Ruiz’s prosecution.                           To succeed on a

claim of prosecutorial misconduct, the defendant must prove that

the prosecution’s conduct was, in fact, improper, and that he

was deprived of a fair trial because of the prejudicial conduct.

United   States     v.   Allen,     491   F.3d        178,   191      (4th   Cir.   2007).

Here,    counsel    does     not    point       to     any   specific        instance   of

prosecutorial      misconduct,      and     our        review    of    the    record    has

disclosed    no    evidence    of    misconduct.             Thus,      this    claim   is

meritless.

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                                          III.

       Perez-Ruiz argues that the district court erred in applying

the     enhancement        under     U.S.       Sentencing     Guidelines           Manual

§ 2D1.1(b)(1) (2013), for possession of a firearm because there

was insufficient evidence that he possessed the firearm found

buried near a “stash trailer” or that the firearm was connected

to the drug activity for which he was convicted.                           In assessing

a     challenge     to     the     district      court’s     application          of    the

Guidelines, we review the district court’s factual findings for

clear error and its legal conclusions de novo.                     United States v.

Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010).

       Section 2D1.1(b)(1) of the Guidelines directs a district

court    to     increase   a     defendant’s      offense    level    by    two     levels

“[i]f a dangerous weapon (including a firearm) was possessed.”

The     enhancement      is      proper   when     the   weapon      at     issue       “was

possessed in connection with drug activity that was part of the

same    course     of    conduct    or    common    scheme    as     the    offense      of

conviction,” United States v. Manigan, 592 F.3d 621, 628-29 (4th

Cir.    2010)     (internal       quotation      marks   omitted),        even    in    the

absence of “proof of precisely concurrent acts, for example, gun

in hand while in the act of storing drugs, drugs in hand while

in the act of retrieving a gun.”                   United States v. Harris, 128

F.3d     850,     852    (4th     Cir.    1997)     (internal      quotation           marks

omitted).        “[P]roof of constructive possession of the [firearm]

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is   sufficient,       and    the       Government      is   entitled   to     rely    on

circumstantial evidence to carry its burden.”                      Manigan, 592 F.3d

at   629.      The     defendant         bears    the    burden    to   show    that    a

connection between his possession of a firearm and his narcotics

offense is “clearly improbable.”                 Harris, 128 F.3d at 852-53.

       We have further held that weapons possessed by a member of

a conspiracy are attributable to a co-conspirator when “under

the circumstances of the case, it was fair to say that it was

reasonably foreseeable to defendant that his co-participant was

in possession of a firearm.”                     United States v. Kimberlin, 18

F.3d 1156, 1159-60 (4th Cir. 1994) (internal quotation marks and

alteration omitted) (upholding application of enhancement under

USSG   §    2D1.1(b)    based   on       co-conspirator’s         possession    of     the

firearm).        Moreover,          a    co-conspirator’s         possession     of     a

dangerous     weapon     is     foreseeable          when    “their     collaborative

criminal venture includes an exchange of controlled substances

for a large amount of cash.”                 United States v. Gomez-Jiminez,

750 F.3d 370, 381 (4th Cir.), cert. denied, 135 S. Ct. 305

(2014).      Given Perez-Ruiz’s admitted conspiracy, his presence

and actions at the stash trailers and their curtilage, and the

large scope of the drug activity, it was fairly inferable that

the presence of the firearm was foreseeable.                       See Kimberlin, 18

F.3d at 1160 (internal quotation marks omitted).



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      Moreover, Perez-Ruiz has failed to present an argument that

the connection between the firearms and the drug conspiracy was

“clearly improbable,” and, on Anders review, “[t]here is nothing

in the record to suggest that the weapon[] w[as] unconnected to

the offense.”    See Gomez-Jiminez, 750 F.3d at 382.                 In addition,

the record affirmatively supports the connection:                      Perez-Ruiz

participated    in    a     large   scale     drug    conspiracy,    transporting

hundreds of thousands of dollars on more than one occasion; the

handgun was buried near a stash trailer where Perez-Ruiz was

seen repeatedly and where Perez-Ruiz retrieved items from the

wooded curtilage; and the stash trailers were also the site of

drug sales by Perez-Ruiz.           As such, the court’s factual finding

that the weapon was connected to the drug trafficking conspiracy

was not error.

                                        IV.

      Perez-Ruiz next challenges the district court’s application

of   a   three-level        enhancement       based    on     his   role   in    the

conspiracy.          The    district    court’s       imposition     of    a    role

adjustment is a factual determination reviewed for clear error.

United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).

A three-level enhancement under USSG § 3B1.1(b) is warranted if

“the defendant was a manager or supervisor (but not an organizer

or   leader)   and    the    criminal   activity       involved     five   or   more

participants.”         To     qualify     for   such     an    enhancement,      the

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defendant must have managed or supervised “one or more other

participants.”       USSG § 3B1.1, cmt. n.2.                   The enhancement is

appropriate where the evidence demonstrates that the defendant

“controlled the activities of other participants” or “exercised

management responsibility.”           United States v. Slade, 631 F.3d

185, 190 (4th Cir. 2011) (citing United States v. Bartley, 230

F.3d 667, 673-74 (4th Cir. 2000)).                  In determining whether an

enhancement under USSG § 3B1.1(b) is warranted, a court should

consider:

     (1) the exercise of decision making authority, (2) the
     nature of participation in the commission of the
     offense, (3) the recruitment of accomplices, (4) the
     claimed right to a larger share of the fruits of the
     crime, (5) the degree of participation in planning or
     organizing the offense, (6) the nature and scope of
     the illegal activity, and (7) the degree of control
     and authority exercised over others.

Kellam,    568    F.3d   at   148   (quoting       USSG    §    3B1.1,   cmt.   n.4).

“Leadership over only one other participant is sufficient as

long as there is some control exercised.”                        United States v.

Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).

     We conclude that the district court did not clearly err by

applying    the   leadership    enhancement        to     Perez-Ruiz’s      sentence.

Perez-Ruiz       exercised    control       over    his        wife   and    another,

directing them to assist him counting and wrapping the money.

In addition, his wife acted as counter-surveillance during money

drops.     Perez-Ruiz also distributed cocaine for redistribution


                                        7
and organized the logistics of the money-drops for a conspiracy

that dealt with a great deal of cocaine.                                  Accordingly, this

claim is without merit.

                                               V.

      Perez-Ruiz next contends that the district court erred by

failing to give him a safety valve reduction in sentence.                                          A

two-level reduction in offense level is applicable under USSG §

5C1.2 if the defendant meets the five criteria set out in 18

U.S.C. § 3553(f)(1)-(5) (2012), the fourth of which is that the

defendant is not a organizer, leader, manager, or supervisor of

others     in    the    offense.        However,       because        as       discussed      above

Perez-Ruiz        was     a    manager        or    supervisor            in        his    criminal

conspiracy,        the     district       court       properly        found          him     to   be

ineligible.

                                              VI.

      In    accordance         with    Anders,      we    have       reviewed         the    entire

record for meritorious issues and have found none.                                   Accordingly,

we   affirm      Perez-Ruiz’s         conviction       and      sentence.             This    court

requires        that    counsel      inform    Perez-Ruiz,           in    writing,          of   the

right to petition the Supreme Court of the United States for

further     review.           If    Perez-Ruiz      requests         that       a    petition      be

filed,     but     counsel         believes    that      such    a    petition            would   be

frivolous, then counsel may move in this court for leave to

withdraw from representation.                  Counsel’s motion must state that

                                               8
a copy thereof was served on Perez-Ruiz.   We dispense with oral

argument because the facts and legal contentions are adequately

expressed in the materials before this court and argument would

not aid the decisional process.

                                                        AFFIRMED




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