UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5155

RICKY LEE VANCE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Samuel G. Wilson, District Judge.
(CR-94-22)

Submitted: May 16, 1996

Decided: May 31, 1996

Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dennis E. Jones, Lebanon, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, S. Randall Ramseyer, Assistant
United States Attorney, Julie M. Campbell, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Ricky Lee Vance was convicted by a jury of use of a destructive
device in a crime of violence, 18 U.S.C.A. § 924(c) (West Supp.
1995) (Count One); of attempted destruction of a building used in
interstate commerce by means of an explosive, 18 U.S.C. § 844(i)
(West Supp. 1996) (Count Two); of possession of an unregistered
destructive device, 26 U.S.C. § 5861(d) (1988) (Count Three); and of
receiving or transporting stolen explosive materials, 18 U.S.C.
§ 842(h) (1988). Vance was sentenced to a term of 360 months
imprisonment for Counts Two, Three, and Four and to a mandatory
consecutive 360-month term for Count One. Vance appeals his con-
viction on the ground of insufficient evidence. He also appeals his
sentence, contending that the district court clearly erred in finding that
he tried to hire a hit man to kill his wife after his conviction and in
imposing consecutive 120-month sentences for Counts Two, Three,
and Four. We affirm.

On April 23, 1994, an employee of Bristol Compressors in Wash-
ington County, Virginia, discovered a home-made bomb outside an
employee entrance to the factory as he arrived for the 7:00 a.m. shift.
The bomb consisted of seven sticks of dynamite, two blasting caps,
a battery, and a clock. It was positioned close to a liquid oxygen stor-
age tank. But for the fact that one of the wires connecting the clock
and the battery had come loose, the bomb would have exploded
before it was discovered. Two of Vance's fingerprints were found on
the battery.

At Vance's trial, the government produced the following evidence.
At the time the bomb was planted, Vance's wife was in the process
of divorcing him and he was very upset that she was taking custody
of his children and spending time with another man. Vance's ex-wife,
Janet, testified that Vance had put a gun to her head some months ear-
lier when she refused to reconcile with him. Two co-workers of
Vance's testified that he had previously stated that he would like to
kill his wife. After the bomb was found and dismantled, Vance told
a third co-worker that he had put the bomb at Bristol Compressors,
but that it had failed to go off. Linda Carpenter, whom Vance dated

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for a while during April 1994, testified that she was with him a few
days before the bomb was found when he bought a clock, a battery,
and a can of spray paint, and subsequently constructed the bomb at
her house. A break-in occurred in April 1994 at a Cumberland Plateau
Planning Commission (CPPC) facility and three to nine sticks of
dynamite were stolen. The date code on the dynamite in the bomb
was the same as the date code on the dynamite stolen from CPPC.
Vance worked for CPPC briefly in 1992 and came to the facility in
early April 1994 looking for part-time work. The bomb was held
together with cable ties of the same type used at the furniture factory
where Vance was employed full-time. A pair of bolt cutters found in
the storage shed behind the house where Vance formerly lived with
his wife had been used to cut through the chain link fence around the
facility.

Vance testified on his own behalf, denying all the incriminating
statements attributed to him by his co-workers, denying his wife's
allegation that he once put a gun to her head, and denying that he con-
structed a bomb at Linda Carpenter's house. He suggested that Janet
Vance and the man she was seeing put the bomb at Bristol Compres-
sors to frame him. He said he must have put his fingerprint on the
bomb battery when he went with his son to the storage shed behind
his wife's home a few days before the bomb was found, and moved
a few items while getting some weed-eating string out of the shed.

A conviction must be sustained if there is substantial evidence,
taken in the light most favorable to the government, to support a find-
ing of guilt. Glasser v. United States, 315 U.S. 60, 80 (1942). The
issue is whether any rational trier of fact could have found the defen-
dant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979). Circumstantial as well as direct evidence is consid-
ered, and the government is given the benefit of all reasonable infer-
ences from the facts proven to the facts sought to be established.
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Vance
argues that the evidence was insufficient because most of the evi-
dence was circumstantial. We find that the evidence amply supports
the jury's verdict.

At Vance's sentencing hearing, the district court heard testimony
from Bobby Lowery, who was confined at the county jail where

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Vance was held after his conviction. Lowery testified that Vance
asked for his help in finding a hit man to kill his wife and promised
to pay $20,000. The court reviewed a note in Vance's handwriting
which Lowery turned over to authorities and subsequent tape-
recorded conversations between Vance and Lowery, and between
Vance and an undercover officer posing as a potential hit man. In the
latter conversation, Vance stated that he was only interested in infor-
mation about who had actually planted the bomb.

On the basis of this evidence, the court found that Vance's propen-
sity for recidivism was not adequately accounted for by criminal his-
tory category I and departed upward under USSG § 4A1.3* to
Category II. The court also departed upward on other grounds,
increasing Vance's offense level from 30 to 39. The resulting guide-
line range for Counts Two, Three, and Four was 292-365 months. The
court imposed a sentence of 360 months. Because the statutory maxi-
mum for each count is ten years, the court imposed consecutive sen-
tences of 120 months for each of these counts.

Vance attacks the upward departure under USSG § 4A1.3 by con-
tending that the district court clearly erred in finding that he tried to
hire a hit man to kill his wife. A sentencing court may depart from
the sentencing range under USSG § 4A1.3 if reliable information
indicates that the defendant's criminal history does not adequately
reflect the seriousness of his past criminal conduct or the likelihood
that he will commit other crimes. We review under the clearly errone-
ous standard the district court's factual determination that such a fac-
tor is present. United States v. Hummer, 916 F.2d 186, 192 (4th Cir.
1990), cert. denied, 499 U.S. 970 (1991). Because Lowery's testi-
mony was confirmed by the note written by Vance, we find that the
district court did not clearly err. Vance does not challenge the district
court's decision to depart on this basis or the extent of the departure.
Having determined that the total punishment for Counts Two through
Four was 360 months, the court properly made the sentences consecu-
tive to produce a combined sentence equal to the total punishment of
360 months. See USSG § 5G1.2(d).
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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In a pro se supplemental brief, Vance maintains that the indictment
was defective with regard to each count charged. We find that each
count properly charged a criminal act, gave the correct statutory cites,
and adequately informed Vance of the charges against him.

We deny Vance's request for a transcript of the jury voir dire.
Vance contends that one of the jurors was a roommate of a Bristol
Compressors employee and that his attorney was ineffective in failing
to question the juror about the matter. A defendant raising a post-trial
claim of juror bias must demonstrate actual bias, proof of which usu-
ally requires a hearing. Smith v. Phillips, 455 U.S. 209, 215-18
(1982). Ineffective assistance claims are not considered on direct
appeal unless conclusive evidence of ineffectiveness appears in the
record. United States v. Tatum, 943 F.2d 370, 379 (4th Cir. 1991).
Both claims raised here would be better resolved in a motion filed
under 28 U.S.C. § 2255 (1988).

We therefore affirm the conviction and the sentence. Vance's
motion for leave to file a pro se supplemental brief is granted. His
motion for preparation of a transcript of the jury voir dire is denied.
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.

AFFIRMED

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