UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 97-4982

TARRANT COUNTS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                    No. 98-4219
TIMOTHY P. TYLER, a/k/a Tyrone
Gibson,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-96-155-V)

Submitted: February 16, 1999

Decided: March 19, 1999

Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

No. 97-4982 dismissed and No. 98-4219 affirmed by unpublished per
curiam opinion.

_________________________________________________________________
COUNSEL

Claire J. Rauscher, Grant Smithson, Charlotte, North Carolina, for
Appellants. Mark T. Calloway, United States Attorney, Robert J. Hig-
don, Jr., Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Timothy P. Tyler and Tarrant Counts pled guilty to conspiracy to
possess with intent to distribute cocaine and cocaine base in violation
of 21 U.S.C. § 846 (1994). Counsel for Tyler and Counts have filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
addressing whether the district court erred when it failed to grant
Tyler's motion to suppress the cocaine seized at the time of his arrest
and when it failed to grant Counts' motion for a downward departure
under U.S. Sentencing Guidelines Manual (USSG) §§ 5H1.6, 5K2.0
(1997), due to unusual family hardship. Counsel asserts there are no
meritorious grounds for appeal. The Government has filed a motion
to dismiss Counts' appeal contending that Counts waived his rights
to appeal his conviction or sentence because he entered into an uncon-
ditional plea agreement. Tyler and Counts were informed of their
right to file a pro se supplemental brief. Counts filed an informal
brief, but Tyler did not. Because our review of the entire record
reveals no reversible error, we dismiss Counts' appeal and affirm
Tyler's conviction and sentence.

On September 11, 1996, law enforcement officials began an inves-
tigation into Counts' background, after receiving complaints suggest-
ing that he was engaging in drug trafficking activities within The
Oaks, the apartment complex in which he lived. During their investi-

                    2
gation, law enforcement officials determined that the vehicle identifi-
cation number ("VIN") on Counts' vehicle ("Toyota") did not
correspond with the vehicle's registration and that Counts had an
extensive criminal history. Thereafter, law enforcement officials went
to The Oaks to determine whether Counts had lawful possession of
the Toyota.

While police were inspecting the Toyota, Counts, Tyler, and Joe
Nathan Green came out of The Oaks' garage area and walked toward
the Toyota. Police observed Counts carrying a large plastic garbage
bag and car keys, Tyler carrying a white plastic grocery bag, and
Green carrying a pair of jumper cables. As the men were exiting the
garage, the officers approached them, and Counts and Tyler dropped
the bags they were carrying under the Toyota.

After Counts informed Agent Blowers that he owned the Toyota,
Blowers identified himself as an FBI agent. Blowers asked Counts to
place his hands on the hood of the Toyota so that he could perform
a safety patdown. While Blowers frisked Counts, Tyler and Green
were asked to remain against the garage wall, and they were also
searched for weapons. Blowers then asked Counts to open the hood
of the vehicle so that he could compare the VIN on the engine with
the VIN on the vehicle registration. As Counts and Blower walked
toward the front of the Toyota, Counts kicked one of the two bags
previously dropped to the ground under the front of the vehicle.

Counts advised Blowers that the larger bag contained garbage and
Blowers asked for Counts' consent to search the bag. Counts initially
denied ownership of the bag, but he eventually consented to the
search. Blowers retrieved the bag, searched it, and found wrappers
used to package cocaine that contained cocaine residue. Blowers
arrested all three men. Officers could see that the second, smaller bag
contained other plastic bags that appeared to contain crack cocaine.
As an officer picked up the second bag, a quantity of crack cocaine
fell to the ground. The bag was then searched and officers found an
additional package of crack cocaine inside the bag.

Tyler moved to suppress the evidence seized as well as any state-
ments he made to law enforcement officials on September 11, 1996,
contending that: (1) his initial detention was not based upon reason-

                    3
able suspicion; (2) the plastic bags were searched without a warrant
or his consent; and (3) he was not advised of his Miranda rights prior
to being interviewed by investigators. Pursuant to 28 U.S.C.
§ 636(b)(1)(B) (1994), a magistrate judge was designated to recom-
mend disposition of Tyler's suppression motion. The magistrate judge
recommended that the motion be denied, and Tyler filed objections.
After a de novo review, the district court accepted the magistrate
judge's recommendation and denied Tyler's motion to suppress.

Tyler entered into a conditional plea agreement, reserving his right
to appeal the suppression issue. Counts also entered into a plea agree-
ment, but waived his right to appeal except for issues regarding inef-
fective assistance and prosecutorial misconduct. At sentencing
Counts' attorney filed a motion seeking a downward departure pursu-
ant to USSG §§ 5K2.0, 5H1.6, due to unusual family hardship. The
motion was subsequently denied, and Counts was sentenced as a
career offender. Tyler and Counts timely appealed.

Tyler contends on appeal that the district court erred when it denied
his motion to suppress. In considering the denial of Tyler's motion to
suppress, we review the district court's legal conclusions de novo and
its factual findings for clear error. See United States v. Rusher, 966
F.2d 868, 873 (4th Cir. 1992). Tyler first asserts that the motion
should have been granted because he was illegally detained when he
first encountered law enforcement officials upon exiting the garage at
The Oaks apartment complex with Counts and Green. We disagree.
A law enforcement officer may stop and briefly detain a person for
investigative purposes when that officer has a reasonable suspicion of
ongoing criminal activity based on specific articulable facts. See
Terry v. Ohio, 392 U.S. 1, 30 (1968). In evaluating the validity of an
investigative stop, we must consider the totality of the circumstances.
See United States v. Sokolow, 490 U.S. 1, 8 (1989). At the time the
officers stopped the Defendants, they knew that Counts had a lengthy
criminal record that included violent crimes and drug related offenses,
and that he was on parole. They had received complaints that Counts
was dealing drugs. The officers further believed that the Toyota was
not properly registered, and therefore, may have been stolen. Finally,
Counts and Tyler were leaving the garage carrying plastic bags,
which they both dropped when they saw officers approaching. Based

                    4
upon these facts, we find the officers had a reasonable suspicion,
which justified their decision to stop and detain Tyler.

Tyler further contends that his suppression motion should have
been granted because the plastic bags at issue were searched without
his consent or a warrant. All warrantless searches"are per se unrea-
sonable under the Fourth Amendment--subject only to a few specifi-
cally established and well-delineated exceptions." Mincey v. Arizona,
437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S.
347, 357 (1967) (footnotes omitted)). One such exception is a search
incident to a lawful arrest. See Chimel v. California, 395 U.S. 752,
762-63 (1969). Blowers, with Counts' consent, opened the large plas-
tic bag Counts dropped and saw what appeared to be cocaine in plas-
tic wrappers. Based on this discovery, Counts, Tyler, and Green were
lawfully arrested for possession of cocaine. The smaller bag was only
a short distance from the three men, so it could lawfully be searched
incident to the arrest. Finally, the officers saw plastic bags containing
a substance that appeared to be crack cocaine protruding from the
smaller bag which Tyler had been carrying. In light of the contents
of the larger bag and the materials protruding from the smaller bag,
it was reasonable to believe that the smaller bag also contained drugs.
Thus, the search was also proper under the plain view doctrine
because the incriminating nature of the bag's contents was immedi-
ately apparent. See United States v. Legg, 18 F.3d 240, 242 (4th Cir.
1994).

Finally, Tyler claims that his motion to suppress should have been
granted with respect to the post-arrest statements he made to law
enforcement officials because he was not advised of his Miranda
rights prior to being interviewed. The record, however, reveals that
Tyler was advised of his rights under Miranda at the time of his
arrest. Accordingly, we find that the district court properly accepted
the magistrate judge's report and recommendation to deny Tyler's
suppression motion.

We grant the Government's motion to dismiss Counts' appeal
because he waived his right to appeal his conviction or sentence and
the waiver was valid and enforceable. Therefore he is foreclosed from
appealing.1 See United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995).
_________________________________________________________________
1 In any event, the denial of a motion to depart downward is generally
not appealable. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990).

                     5
Counts has also filed a pro se supplemental brief alleging that
counsel rendered ineffective assistance because: (1) he failed to file
objections to the presentence report; (2) he failed to argue that the
Government had not proven that cocaine base was"crack;" and (3) he
stipulated, in Counts' plea agreement, to a two-point increase for pos-
session of a firearm under USSG § 2D1.1(b)(1)."[C]laim[s] of inef-
fective assistance should be raised in a 28 U.S.C.§ 2255 motion in
the district court rather than on direct appeal, unless the record con-
clusively shows ineffective assistance." United States v. Williams, 977
F.2d 866, 871 (4th Cir. 1992). Based on our review of the record,
there has been no such showing, and the claim is not properly before
us.2

In accordance with the requirements of Anders , we have examined
the entire record and find no meritorious issues for appeal. Accord-
ingly, Tyler's conviction and sentence are affirmed. We grant the
Government's motion to dismiss Counts' appeal. This court requires
that counsel inform their clients, in writing, of their right to petition
the Supreme Court of the United States for further review. If a client
requests that a petition be filed, but counsel believes that such a peti-
tion would be frivolous, then counsel may move in this court for leave
_________________________________________________________________
2 The record before the court reveals that counsel considered whether
to challenge a career criminal enhancement and stated that she would
make an objection if she found it appropriate. Because counsel made this
statement and did not file an objection we must conclude that counsel
determined the challenge to be meritless. Such a calculated decision by
counsel is not per se ineffective assistance of counsel. See e.g. Strickland
v. Washington, 466 U.S. 668, 687-94 (1984) (holding that defendant
must establish that counsel's performance was deficient and that coun-
sel's performance affected the outcome of his case). The record further
discloses that law enforcement officials testified that the cocaine base
was protruding from a plastic bag and that it was a hard white to yellow
substance, suggesting that it was in its rock-like form rather than in a liq-
uid or paste, and that the substance looked like crack cocaine. See id.
Moreover, we have held that crack cocaine and cocaine base are synony-
mous. See United States v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995).
Finally, Counts did not challenge the facts presented in the presentence
report; according to the report the police searched Counts' residence pur-
suant to a warrant and recovered cocaine powder, crack cocaine, and five
firearms.

                    6
to withdraw from representation. Counsel's motion must state that a
copy thereof was served on the client.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

          No. 97-4982 - DISMISSED

          No. 98-4219 - AFFIRMED

                    7
