UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 98-4166
SEAN LAMONT DUDLEY, a/k/a John
D. Brown,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CR-97-1-V)

Submitted: October 9, 1998

Decided: October 29, 1998

Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard A. Culler, CULLER & CULLER, Charlotte, North Carolina,
for Appellant. Timika Shafeek, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Sean Lamont Dudley was convicted pursuant to his guilty pleas of
conspiracy to possess with intent to distribute cocaine and possession
of cocaine with intent to distribute and aiding and abetting in the
same. On appeal, he alleges that the district court erred by enhancing
his base offense level for obstruction of justice pursuant to U.S.S.G.
§ 3C1.1,1 that he was entitled to a reduction in his base offense level
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, that the
district court should have granted his motion for downward departure
pursuant to U.S.S.G. § 4A1.3 because his criminal history score over-
stated his prior criminal misconduct, and that defense counsel ren-
dered ineffective assistance by failing to object to the legitimacy of
the prior convictions used to enhance Appellant's sentence. Finding
no reversible error, we affirm.

Dudley and his three codefendants were stopped by a state trooper
pursuant to a routine traffic stop. Because of the suspicious way in
which the occupants of the vehicle acted and the conflicting answers
they gave to simple questions,2 the officer asked for and received per-
mission to search the vehicle. The trooper found a kilogram of
cocaine in a hidden compartment in the trunk, and a later search
resulted in the discovery of a second kilogram. Large amounts of cash
were also found on two of the passengers. During the ensuing investi-
gation, Dudley maintained that the drugs belonged to him and that the
other defendants, who were all related to him, knew nothing about
them. Dudley pled guilty, and the other defendants proceeded to trial,
where they were convicted despite Dudley's exculpatory testimony.

We review the district court's factual finding that Dudley commit-
ted perjury during his testimony at his codefendants' trial, and there-
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1 U.S. Sentencing Guidelines Manual (1997).
2 The occupants of the vehicle appeared very nervous and gave false
names. They also gave conflicting stories concerning where they had
come from, where they were going, and who they were going to see. The
defendants could not give addresses or telephone numbers for the people
they were allegedly going to visit or for themselves.

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fore obstructed justice, for clear error3 and find none. An
enhancement for obstruction of justice is appropriate if the defendant
willfully commits perjury in an attempt to impede the investigation or
prosecution of the instant offense.4 Dudley alleges that the district
court found that he committed perjury simply because his co-
defendants were convicted. We disagree. The judge who sentenced
Dudley also presided over the trial of his codefendants. The court
heard the testimony and evidence in both cases and determined that
Dudley lied concerning his relatives' knowledge about the drugs in an
attempt to protect them. We find that the record supports this decision.5

Because the enhancement for obstruction of justice was appropri-
ate, a downward adjustment for acceptance of responsibility could be
justified only in exceptional circumstances.6 Since we find no such
circumstances here, the district court properly denied Dudley's
motion. We reject Dudley's assertion that his case is extraordinary
because he pled guilty and admitted that the drugs belonged to him.
The district court properly found that the adjustment was not war-
ranted because Dudley's refusal to concede his relatives' involvement
constituted a failure to admit to all of his criminal misconduct.7

The district court's decision not to grant a downward departure is
not reviewable, unless the court erroneously believed that it lacked
the authority to depart.8 Contrary to Dudley's assertions, we find that
the court recognized its authority in this area and found that a depar-
ture was not warranted under the facts of this case. We find that the
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3 See United States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995).

4 See U.S.S.G. § 3E1.1, comment. (n.3(b)).
5 Certainly, a reasonable fact finder could conclude that Dudley's code-
fendants were aware of the presence of drugs based on their suspicious
actions, conflicting answers, family relationship, and the amount of cash
found on two of them, and that Dudley's weak attempts to deny their
involvement were made to deceive investigators and the jury.
6 See U.S.S.G. § 3E1.1, comment. (n.4).
7 See United States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1990)
(defendant must accept responsibility for all of his misconduct to receive
the adjustment).

8 See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).

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court's comment that it did not have the power to overturn Congress
referred to the fact that departures are only appropriate if the case falls
outside the heartland contemplated by the Guidelines. Since Dudley's
case did not meet this requirement, there was no basis for a departure.

Finally, we review claims of ineffective assistance of counsel on
direct appeal only when the ineffectiveness "conclusively appears" on
the record. See United States v. Smith, 62 F.3d 641, 651 (4th Cir.
1995). Otherwise, such claims should be raised in the district court in
a habeas corpus proceeding rather than in this court by direct appeal.
Id. In the present case, we find that the record does not support Dud-
ley's allegations that his counsel was ineffective. U.S.S.G. § 4A1.2(o)
expressly states that state felony convictions are considered in deter-
mining career offender status.

We therefore affirm Dudley's convictions and sentence. We dis-
pense 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. Dudley's motion to file a pro se
supplemental brief is granted.

AFFIRMED

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