UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4044

JAMES ROBINSON, a/k/a Sean Lee,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-95-51)

Submitted: June 10, 1997

Decided: June 27, 1997

Before HALL, MURNAGHAN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

W. Mark Burnette, Lewisburg, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, Monica K. Schwartz, Assistant
United States Attorney, Michael L. Keller, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

James Robinson pled guilty, pursuant to a written plea agreement,
to aiding and abetting possession with intent to distribute cocaine base
in violation of 21 U.S.C. § 841(a)(1) (1994) and 18 U.S.C. § 2 (1994).
The district court held an evidentiary sentencing hearing and sen-
tenced Robinson to 293 months of imprisonment. Robinson raises
several issues on appeal relating to his sentence. Finding no error, we
affirm.

In January 1994, Robinson began making a series of trips to New
York City to purchase drugs, accompanied by Bandele Jones and
Angelo White. Robinson and Jones acted as partners and combined
their money to make drug purchases in larger volume.

Robinson made four to five trips to New York City to buy crack
cocaine. Robinson and Jones purchased approximately eight ounces
each on each trip. Robinson and Jones would purchase crack for
White when White did not accompany Robinson and Jones to New
York City and transport it back to West Virginia.

In March 1995, Robinson, Jones, White, and Frank Fazio were in
New York City to make a drug buy. In Robinson's presence, White
and Fazio purchased $7000 worth of crack from a dealer named
Mark. The group returned the next day to receive delivery from Mark.
Out of Robinson's presence, Jones taped the drugs to Fazio's chest to
hide them. The group flew back to Charleston and local authorities
apprehended Fazio. Police also stopped White. White made state-
ments implicating Robinson and Jones, and repeated essentially the
same information at each debriefing session.

At the sentencing hearing, the Government presented the testimony
of White and Fazio, as well as that of two detectives. Robinson made
several objections to the presentence report (PSR) disputing factual
information regarding the March 1995 trip to New York City and the
number of trips that he made. Robinson also disputed the amount of
drugs attributed to him. With the exception of finding that one

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Thanksgiving trip did not occur, the district court credited the Gov-
ernment's evidence. The district court denied Robinson credit for
acceptance of responsibility because Robinson denied, by challenging
the PSR findings, the extent of his involvement with Jones, the
amount of drugs attributed to him, and the number of trips he made.

The district court found that with an offense level of 38 and a crim-
inal history category of I, Robinson's guidelines imprisonment range
was 235 to 293 months. Without further objection from defense coun-
sel, the district court sentenced Robinson at the top of the range to
293 months.

The district court determined Robinson's sentence by attributing
the full quantity of drugs implicated in the "same course of conduct"
or "common scheme or plan" as the offense of conviction, as allowed
under USSG § 1B1.3(a) (Nov. 1995). The court applied the concept
of relevant conduct. Robinson did not object at sentencing to the
application of § 1B1.3. Robinson argues on appeal that the concept of
relevant conduct is both unconstitutional and promulgated by the Sen-
tencing Commission in an act beyond its lawful authority.

Because Robinson did not object during the district court proceed-
ings to the application of relevant conduct or advance the theory he
now presents on appeal, this court reviews the issue for plain error.
See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
731-32 (1993). This court has repeatedly upheld the application of the
relevant conduct concept. See United States v. Dorlouis, 107 F.3d
248, 256-57 (4th Cir. 1997). We find that this is a frivolous issue.

Robinson argues that the district court failed to follow the mandate
of 18 U.S.C. § 3553(c)(1), which provides that"[t]he court, at the
time of sentencing, shall state in open court the reasons for its imposi-
tion of the particular sentence, and, if the sentence-- [has a] range
[that] exceeds 24 months, the reason for imposing a sentence at a par-
ticular point within the range." 18 U.S.C. § 3553(c)(l) (1994). The
Government concedes that the district court failed to give any expla-
nation for sentencing Robinson to the high end of the guideline range,
but argues that this court lacks jurisdiction to address the issue
because there was no legal error in imposing the sentence, and Robin-
son cannot demonstrate plain error or prejudice from the omission.

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The review of sentences is limited to sentences"imposed in viola-
tion of law" or those "imposed as a result of an incorrect application
of the sentencing guidelines." 18 U.S.C. § 3742(a)(1)-(2) (1994). In
United States v. Jones, 18 F.3d 1145, 1151 n.4 (4th Cir. 1994), this
court reserved the question of reviewability of a failure to explain rea-
sons under § 3553(c)(1). Even assuming arguendo that the district
court's failure to explain its reasons is reviewable, because Robinson
did not object or request an explanation at sentencing, the court's fail-
ure to explain its reasons could only be reversed for plain error.
Because it is not apparent that the court committed error at all
(although the sentence is at the high end of the guideline range, it is
a lawful sentence within the range), and because, in any event, the
alleged error does not affect substantial rights or seriously affect the
fairness and integrity of judicial proceedings, we find that the district
court did not commit plain error warranting correction.

Robinson makes several arguments regarding the amount of drugs
the district court attributed to him as relevant conduct. Robinson first
argues that the district court improperly credited the Government's
evidence at sentencing regarding relevant conduct merely because
Robinson did not testify. The record does not support this contention.

Next, Robinson argues that the district court should have allowed
him to testify at the sentencing hearing on the limited issue of relevant
conduct. This court reviews district court evidentiary rulings for abuse
of discretion, and will not find error in the ruling unless the district
court acted arbitrarily or irrationally. See United States v. Ham, 998
F.2d 1247, 1252 (4th Cir. 1993). We find that the district court did
not abuse its discretion in sustaining the Government's objection to
Robinson's proffer of testimony for the limited purpose of disputing
a factual issue in the presentence report.

Robinson also argues that the district court improperly relied upon
evidence adduced at Jones's trial, in violation of his Sixth Amend-
ment right to confront witnesses. The record reveals that the district
court stated that White's testimony at the sentencing hearing was
credible in light of its familiarity with the proceedings and the partici-
pants in the offense. Because Robinson had the opportunity to cross-
examine White at the sentencing hearing, and counsel rigorously

                     4
examined White, we find that the district court did not violate Robin-
son's Sixth Amendment right to confrontation of witnesses.

Finally, Robinson contends that there was insufficient evidence to
support the district court's finding that drug purchases made by
White, Jones, Fazio, and Robinson were relevant conduct and the
amount of purchases could be attributed to Robinson. The district
court's factual findings are reviewed under the clearly erroneous stan-
dard, while its interpretation of guideline terms is reviewed de novo.
See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
District courts may take "relevant conduct" into account in determin-
ing a defendant's sentence whether or not the defendant has been con-
victed of the charges constituting the relevant conduct. See USSG
§ 1B1.3; United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).
The court must establish the amount of drugs attributable to a defen-
dant for sentencing purposes by a preponderance of the evidence. See
United States v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993). Whether the gov-
ernment has met its burden of proof is a question of fact reviewed for
clear error. See Jones, 31 F.3d at 1316 (citing Daughtrey, 874 F.2d
at 217). In drug offenses where the defendant is acting in concert with
others, his relevant conduct includes all his own acts and the reason-
ably foreseeable acts of others which were part of the same course of
conduct or common scheme or plan as the offense of conviction. See
USSG § 1B1.3(a)(2). In determining whether uncharged conduct is
part of the same course of conduct as the offense of conviction, the
court looks to the nature of the defendant's acts, his role, and the
number and frequency of those acts, as well as the similarity, regular-
ity, and temporal proximity between the offense of conviction and the
uncharged conduct. See United States v. Mullins , 971 F.2d 1138,
1143-44 (4th Cir. 1992); see also USSG § 1B1.3, comment. (n.9(B)).

Robinson urges the court to adopt a bright line rule that the Gov-
ernment must provide corroborating evidence when relying upon the
testimony of a co-conspirator. This court has expressly held the oppo-
site. The court may rely upon the uncorroborated testimony of a co-
conspirator in determining a defendant's relevant conduct. See United
States v. Bowman, 926 F.2d 380, 381 (4th Cir. 1991). In determining
the quantity of drugs attributable to Robinson, the district court relied
upon a detailed presentence investigation and heard testimony from

                     5
White and Fazio. We find that the district court did not clearly err in
its determination of drug quantity attributable to Robinson.

The PSR recommended a reduction for acceptance of responsibil-
ity. The district court decided not to award an acceptance of responsi-
bility reduction because Robinson disputed several factual issues in
the PSR that amounted to a denial of factual guilt. The determination
of whether a defendant has accepted responsibility under USSG
§ 3E1.1 is a finding of fact which, absent a showing of clear error,
should not be reversed. See United States v. White, 875 F.2d 427, 431
(4th Cir. 1989).

Robinson argues that he did not deny or frivolously contest rele-
vant conduct. We find that the district court properly attributed the
objections to the PSR filed by Robinson's defense counsel to Robin-
son. These objections sought to minimize Robinson's involvement
with Jones and White and disputed most of the factual issues regard-
ing relevant conduct. We therefore find that the district court did not
clearly err in denying Robinson a reduction for acceptance of respon-
sibility.

Robinson argues that the amount of drugs attributable to him and
the point in the guideline sentencing range where he was sentenced
should be similar to those determinations for White and Fazio. This
court has recognized that an otherwise proper sentence cannot be
challenged on the basis of an alleged disparity between sentences of
co-defendants. See United States v. Ellis, 975 F.2d 1061, 1065-66 (4th
Cir. 1992); United States v. Kant, 946 F.2d 267, 270 n.3 (4th Cir.
1991). This claim is therefore not cognizable.

Robinson also alleges that the sentence he received was dispropor-
tionate to the crime and therefore a violation of the Eighth Amend-
ment's prohibition against cruel and unusual punishment. Robinson
relies upon Solem v. Helm, 463 U.S. 277 (1983), which held that the
Eighth Amendment prohibits sentences that are disproportionate to
the crime committed. The district court attributed a total weight of
cocaine base of 2,908.45 grams and total amount of cocaine powder
of 59.8 grams. Robinson received a 293 month term of imprisonment.

This court has held that the imposition of a life sentence for the dis-
tribution of more than fifty grams of cocaine base is not unlawful

                     6
under the test announced in Solem or the Eighth Amendment. See
United States v. D'Anjou, 16 F.3d 604, 612-14 (4th Cir. 1994). Robin-
son received a lesser offense than the defendant in D'Anjou. Although
D'Anjou actually distributed over five kilograms of crack, we still
find that Robinson's sentence is not unconstitutional.

On appeal, Robinson raises a claim of ineffective assistance of his
trial counsel. He alleges that his trial attorney's performance at sen-
tencing was obviously ineffective because she failed to adequately
impeach White, the Government's main witness, by using prior
inconsistent statements. Generally, claims of ineffective assistance of
counsel must first be presented to the district court in the form of a
habeas motion. See United States v. Grandison , 783 F.2d 1152, 1156
(4th Cir. 1986). The issue of ineffective assistance of counsel is only
cognizable on direct appeal if it appears conclusively from the record
that counsel failed to provide effective representation. See United
States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973).

The record reflects that Robinson's trial counsel actively cross-
examined White. She also presented the testimony of another witness
to contradict White's testimony. She was also successful in persuad-
ing the court to remove one drug buying trip from the consideration
of relevant conduct. We find that nothing in the record conclusively
demonstrates a lack of adequate representation.

We therefore affirm the district court judgment. 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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