UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-6669

FRANCIS BARRY NEWMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-93-68, CA-97-308-R)

Submitted: November 24, 1998

Decided: February 10, 1999

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles Robison Allen, Jr., Roanoke, Virginia, for Appellant. Donald
Ray Wolthuis, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Francis Barry Newman appeals the denial in part of his 28
U.S.C.A. § 2255 (West 1994 & Supp. 1998) motion. Although we
grant a certificate of appealability, we affirm the order of the district
court.

Newman was indicted for criminal conspiracy and various drug
and firearm charges related to an armed drug trafficking network that
he headed in western Virginia. If convicted by a jury, Newman would
have faced a maximum penalty of four life terms plus seventy years
incarceration. Newman initially pled not guilty.

Newman eventually changed his plea to guilty on two counts of the
indictment: possession of a firearm by a felon and attempted posses-
sion with intent to distribute cocaine. The remaining counts were dis-
missed. At his Fed. R. Cr. P. 11 hearing, Newman testified that he
was in fact guilty of these crimes. In his plea agreement, Newman
agreed that he would accept accountability for fifteen kilograms of
cocaine. Further, he stipulated that there was a sufficient factual basis
to support the allegations to which he pled guilty.

The Presentence Investigation Report ("PSR") recommended, inter
alia, a two-point enhancement for possession of a firearm during the
drug offense. Newman's counsel filed certain objections to the PSR,
although none addressed the firearm enhancement or the drug quan-
tity. His objections were overruled, and the district court sentenced
Newman to 240 months imprisonment. The record also indicates that
the district court did not inform Newman of his right to appeal.

Newman filed a § 2255 motion alleging that neither the court nor
his counsel informed him of his right to appeal. The Government filed
a response asserting, inter alia, that Newman had failed to allege he
had any meritorious issues to appeal. Newman responded, listing the
following issues that he sought to raise on appeal: (1) involuntary
guilty plea because his attorney failed to investigate the amount of
drugs for which he was held accountable; (2) involuntary guilty plea

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due to his attorney ignoring his efforts to prove his innocence of the
firearm charge; and (3) improper enhancement for firearm possession
when there was no evidence that the firearms were related to his drug
offense.

The district court interpreted Newman's response as an amendment
of his motion adding ineffective assistance at the guilty plea and sen-
tencing proceedings as separate claims for relief in his § 2255 motion.
The district court then found that Newman had not been properly
informed of his right to appeal and, therefore, entered an amended
judgment, permitting Newman to appeal his original conviction and
sentence. The district court also addressed the remaining claims on
the merits and found that Newman had failed to show prejudice flow-
ing from his attorney's allegedly incompetent representation.

On appeal, Newman argues that he was improperly denied an evi-
dentiary hearing on his ineffective assistance claims. We have thor-
oughly reviewed the record and the district court's opinion, and we
find that, for the reasons stated by the district court, Newman failed
to raise issues of fact necessitating a hearing. See United States v.
Newman, No. CR-93-68; CA-97-308-R (W.D. Va. Mar. 26, 1998).
Accordingly, although we grant a certificate of appealability, we
affirm the portion of the district court's order denying Newman's
claims of ineffective assistance of counsel. 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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