UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 98-6107
VITTORIO GIUSEPPE CUCCI, a/k/a
Victor,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CR-91-230, CA-96-2131-5)

Submitted: October 9, 1998

Decided: December 17, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Paul Martin Stroebel, STROEBEL, JOHNSON & PRESTON,
P.L.L.C., Charleston, West Virginia, for Appellant. Michael Lee Kel-
ler, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Vittorio Giuseppe Cucci appeals from the district court's denial of
relief on his motion filed under 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1998). To the extent that Cucci contends the trial court erred
in finding him responsible for five kilograms of cocaine, our review
of the record discloses ample evidence to support such a finding. See
U.S. Sentencing Guidelines Manual § 2D1.1, comment. (n.12) (1997).
The trial court's finding that Cucci had both the intent and the capa-
bility of delivering five kilograms of cocaine was not clearly errone-
ous, and thus the district court did not err in denying Cucci's § 2255
motion on this ground. See USSG § 2D1.1, comment. (n.12); United
States v. Brooks, 957 F.2d 1138, 1151 (4th Cir. 1992).

Likewise, because the evidence was more than sufficient to convict
Cucci even without the introduction of the physical evidence seized
as a result of the allegedly illegal search, even assuming that trial
counsel's failure to move to suppress this evidence at trial was objec-
tively unreasonable, Cucci cannot show he was prejudiced thereby.
See Strickland v. Washington, 466 U.S. 678, 687-88 (1984). Finally,
because Cucci was afforded a full and fair opportunity to litigate the
legality of the search at trial and on appeal, this claim cannot be raised
in collateral review before this court. See Stone v. Powell, 428 U.S.
465, 494 (1976).

We have reviewed the record and the district court's opinion adopt-
ing in part and rejecting in part the magistrate judge's recommenda-
tion and find no reversible error.* Accordingly, we deny a certificate
_________________________________________________________________
*We note that although the district court held alternatively that Cucci's
motion was untimely under the Antiterrorism and Effective Death Pen-
alty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, because Cucci's
conviction became final prior to enactment of the AEDPA, his § 2255
motion filed December 23, 1996, was timely. See 28 U.S.C.A. § 2255;
Brown v. Angelone, 150 F.3d 370 (4th Cir. 1998).

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of appealability and dismiss the appeal. We deny Cucci's motion for
oral argument because the facts and legal contentions are adequately
set forth in the materials before the court and argument would not aid
the decisional process.

DISMISSED

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