UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 94-5508

DAVID WILLIAMS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                 No. 94-5905
COREY LORENZO WOODFOLK, a/k/a
Big Corey,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                 No. 94-5910
PHILIP EDWARD ROBERSON, a/k/a
Mumin Sahib Abdullah,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 95-5217
DONCARLOS WILLIAMS, a/k/a Dee,
a/k/a Denice,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-93-419-JFM)

Submitted: May 21, 1996

Decided: June 17, 1996

Before WIDENER, MURNAGHAN, and WILKINS,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

C. Michael Walls, Laurel, Maryland; Marcia G. Shein, LAW OFFICE
OF MARCIA G. SHEIN, P.C., Atlanta, Georgia; Michael E. Kamin-
kow, SCHULMAN, TREEM, KAMINKOW & GILDEN, P.A., Balti-
more, Maryland; Arcangelo M. Tuminelli, Baltimore, Maryland, for
Appellants. Lynne A. Battaglia, United States Attorney, Andrea L.
Smith, Assistant United States Attorney, Susan M. Ringler, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

                   2
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Mumin Sahib Abdullah,1 Corey Lorenzo Woodfolk ("Big Corey"),
and Doncarlos Williams ("Dee") all pled guilty to conspiracy to dis-
tribute and to possess with intent to distribute heroin. 21 U.S.C.A.
§ 846 (West Supp. 1996). Abdullah and Woodfolk were each sen-
tenced to serve fifty years and Doncarlos Williams was sentenced to
a term of 192 months imprisonment. David Williams took part in the
robbery of a K-Mart with the conspirators, pled guilty to conspiracy
to interfere with commerce by robbery, 18 U.S.C.A.§ 1951 (West
1984 & Supp. 1996), and received a sentence of 63 months imprison-
ment.

Woodfolk and David Williams appeal their sentences. Abdullah's
attorney has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), raising a number of issues but stating that in his view
there are no meritorious grounds for appeal. Abdullah has filed a pro
se supplemental brief. Doncarlos Williams contends that the district
court erred in denying his request to enforce a plea agreement which
was offered and withdrawn in June 1993 without being accepted by
him. For the reasons explained below, we affirm Woodfolk's, Ab-
dullah's, and Doncarlos Williams's convictions and the sentences
imposed on David Williams, Abdullah, and Woodfolk.

In 1991 and 1992, Abdullah and Woodfolk sold heroin in Balti-
more, Maryland, from a number of stash houses. For a while they
were very successful, selling heroin labeled "Strong as Steel," "Py-
thon," and "Nice and Smooth." In early 1992, they purchased a barber
_________________________________________________________________
1 Abdullah's name at birth was Philip Edward Roberson, and he was
charged in the indictment under this name. Because he legally changed
his name to Mumin Sahib Abdullah in 1988, we refer to him by his legal
name.

                    3
shop. Doncarlos Williams worked as a security guard at the shopping
center where the barbershop was located and joined their operation.
By this time, feeling the need for more cash for drug purchases, Ab-
dullah and Woodfolk carried out a number of robberies with the assis-
tance of Doncarlos Williams and others. In May 1992, the robbery of
Arthur Chapple, another drug dealer, was planned at Abdullah's
father's house and carried out by Woodfolk, Doncarlos Williams,
"Little Corey" Johnson, and Nathaniel Gantt. Williams and Gantt
masqueraded as police officers to gain access to the house. The rob-
bers reassembled at Abdullah's father's house afterward and were
paid by Abdullah for their participation.

In August 1992, an African drug dealer, Temidayo Sekiteri, was
robbed in a similar fashion by Woodfolk, Williams, Gantt, and
"Rahim." During the robbery, Woodfolk restrained Sekiteri with
either handcuffs or duct tape and stabbed him in the leg repeatedly
with a heated knife to get him to reveal the location of his drugs.
Although nothing was gained from this robbery, Abdullah again paid
the participants afterward.

In February 1993, Abdullah acted as lookout while Woodfolk, Har-
old Bruton, Timothy Shird ("Bilal"), Doncarlos Williams and his
brother, David Williams, robbed a K-Mart store, taking cash, checks,
jewelry, and watches. As the robbers entered the store, one employee
was escorted back into the store at gunpoint and all the employees
were then forced to lie face down on the floor until the robbery was
completed while Shird held a gun on them.

Other violent acts were carried out during the conspiracy. In March
1991, Woodfolk and Johnson ordered two subordinates to shoot mem-
bers of a rival drug gang who were trespassing on their turf. One of
the victims, David Jones, died of his wounds. In September 1991, a
dry cleaning store near one of the stash houses was burned at Wood-
folk's direction after the owner of the cleaners complained to police
about drug activity in the area. In December 1992, Woodfolk and
Johnson shot and killed Dwayne Oliver and Jack Lewis, two drug
dealers who were selling heroin for a former member of the Ab-
dullah/Woodfolk organization. In January 1993, Abudllah, Woodfolk,
and Doncarlos Williams attempted an attack on Charles Milton

                   4
("Butterall"), who had previously worked for the organization, but
were scared off when Milton shot through the door of his apartment.

David Williams

David Williams contests the district court's decision to enhance his
offense level under USSG § 2B3.1(b)(4)(B), 2 which provides for a
2-level increase "if any person was physically restrained to facilitate
the commission of the offense or to facilitate escape." He argues that
the enhancement was unjustified because the K-Mart employees were
not physically restrained. The district court found that the adjustment
was appropriate because one employee was brought back into the
store and all the employees were kept on the floor for approximately
ten minutes at gunpoint while the loot was gathered. Williams's
guideline range with the adjustment was 63-78 months; without the
adjustment it would have been 51-63 months. The court found that,
even if the adjustment were improper, it would impose the same sen-
tence of 63 months. Therefore, review of the applicability of the
adjustment is unnecessary. United States v. White, 875 F.2d 427, 432-
33 (4th Cir. 1989).

Corey Woodfolk

Woodfolk and Abdullah entered into identical plea agreements by
which they pled guilty to conspiracy and stipulated to a base offense
level of 32 (1-3 kilograms of heroin). USSG § 2D1.1 (Nov. 1994).3
The government agreed to recommend a 3-level downward adjust-
ment for acceptance of responsibility in each case, based on their
admission of the drug conduct. The probation officer recommended
that both Woodfolk and Abdullah receive a 3-level upward adjust-
ment for having a managerial role in the conspiracy. USSG
§ 3B1.1(b). Other possible enhancements, adjustments, and depar-
tures were left for determination by the district court and were not dis-
cussed in their presentence reports.
_________________________________________________________________
2 United States Sentencing Commission, Guidelines Manual (Nov.
1993).

3 Woodfolk and Abdullah were sentenced in November 1994.

                    5
In a four-day sentencing hearing, the government produced numer-
ous co-conspirators and other witnesses who testified about the rob-
beries, murders, and arson committed by or at the direction of
Woodfolk and Abdullah. Woodfolk produced no evidence to the con-
trary, but argued that none of the witnesses were reliable. The district
court ultimately found that Woodfolk should receive a 2-level
enhancement for possession of firearms, USSG § 2D1.1(b)(1), a 2-
level adjustment for restraint of a victim in the Sekiteri robbery,
USSG § 3A1.3,4 and a 2-level adjustment for obstruction of justice,
USSG § 3C1.1. The last adjustment was based on the beating, at
Woodfolk's direction and in his presence, of Givette Hogan, a former
stash house worker who testified at the sentencing hearing about the
Jones murder and the arson of the dry cleaners. Hogan testified that,
in July 1992, after she had been arrested and released, Woodfolk
warned her not to give information about him to authorities and then
ordered the three people with him to beat her. A year later, when she
was actively cooperating with authorities, Woodfolk telephoned
Hogan and again warned her that if she talked she might have to pay
for her actions.

The district court found that further enhancement of Woodfolk's
sentence was unnecessary because he was already at offense level 38
and in criminal history category VI, which gave him a guideline range
of 360 months to life. However, the court found that a departure could
have been made based on significant physical injury, USSG § 5K2.2,
property loss, USSG § 5K2.5, or death, USSG§ 5K2.1. The court
imposed a sentence of 600 months.

On appeal, Woodfolk first contests the adjustment for obstruction
of justice. The adjustment applies if the defendant willfully attempted
to obstruct justice by threatening, intimidating, or otherwise unlaw-
fully influencing a co-defendant, witness, or juror. USSG § 3C1.1,
comment. (n.3(a)). Woodfolk does not contest the fact of the July
1992 beating, but argues that the adjustment for obstruction of justice
did not apply because the district court did not find that it was done
with a willful intent to obstruct justice, and because there was no
_________________________________________________________________
4 Because the district court described this as an "automatic" increase
rather than a departure, we assume the adjustment was applied.

                    6
ongoing investigation of the heroin conspiracy at the time of the beat-
ing, and Hogan was not then a co-defendant or a witness.

We find that the district court did not err as a matter of law in mak-
ing the enhancement. The evidence produced at sentencing estab-
lished that Hogan had been arrested in a raid on the stash house where
she was working in June 1992 and released on bail. Thus, an investi-
gation and prosecution of the conspiracy was under way. Although
the principals had not yet been identified, Hogan was a potential
source of information and witness. In July, not long before Hogan
began to serve her sentence, Woodfolk warned her not to tell law
enforcement authorities what she knew about the organization. The
intent to thwart further investigation is clear, as is the nexus to the
offense for which Woodfolk was eventually convicted, even though
he was ultimately prosecuted by federal authorities.

Woodfolk also contends that use of the preponderance of the evi-
dence standard to resolve sentencing issues violated due process in his
case because his sentence was significantly increased by the district
court's findings. His argument is without merit. The Supreme Court
has held that due process is satisfied by use of the preponderance of
the evidence standard to factfinding during sentencing. McMillan v.
Pennsylvania, 477 U.S. 79, 91-93 (1986).

Woodfolk next argues that the district court erred in finding that his
involvement in the robberies, murders, and arson was relevant con-
duct because the witnesses were self-interested and unreliable. Cer-
tainly, factual evidence relied on by the district court must have some
minimal indicia of reliability, United States v. Hicks, 948 F.2d 877,
883 (4th Cir. 1991), but that requirement was satisfied here. Wood-
folk points out some inconsistencies in the witnesses' testimony, but
overlooks the fact that they corroborated each other far more than
they contradicted each other. In a conspiracy, relevant conduct
includes all acts committed by the defendant and by others which are
in furtherance of the conspiracy, are reasonably foreseeable to the
defendant, and are within the scope of the criminal activity the defen-
dant agreed to undertake. USSG § 1B1.3(a). The district court did not
err in treating the robberies, murders, and arson as relevant conduct
because each was clearly connected to the heroin conspiracy and
Woodfolk participated in each of them. The fact that these other

                    7
crimes were not offenses such as would be grouped under USSG
§ 3D1.2(d) is of no import. See USSG§ 1B1.3(a)(2).

Finally, Woodfolk argues that the district court's acceptance of his
guilty plea before the completion of his presentence report was plain
error. Fed. R. Crim. P. 52(b). He claims that his plea was not knowing
and voluntary because numerous sentencing issues were unresolved
by his plea agreement. However, the parties in this case purposely left
those issues to be resolved by the district court during the sentencing
hearing. The probation officer was even instructed not to make rec-
ommendations to the district court on the additional enhancements
sought by the government, and Woodfolk's attorney informed the
court at the Rule 11 hearing that, as a result, Woodfolk would not dis-
cuss any conduct other than drug activity with the probation officer.
The district court made clear that it was not bound by the stipulations
in the agreement, thus implicitly deferring acceptance of the agree-
ment. Despite the conflict between Fed. R. Crim. P. 11(e)(2), which
permits the court to defer acceptance of the plea agreement until after
it has had an opportunity to review the presentence report, and USSG
§ 6B1.1(c), which states that the court shall wait to accept the plea
agreement until after consideration of the presentence report, the dis-
trict court has the discretion to accept a guilty plea before preparation
of the presentence report. See United States v. Ewing, 957 F.2d 115,
119 (4th Cir.), cert. denied, 505 U.S. 1210 (1992).

Moreover, before he entered his plea, Woodfolk was informed of
the maximum sentence and of the mandatory minimum sentence to
which he was exposed. A defendant need not be informed of the
applicable guideline range before the district court accepts his plea.
United States v. DeFusco, 949 F.2d 114, 118-19 (4th Cir.), cert.
denied, 502 U.S. 885 (1991). No plain error occurred.

In his pro se supplemental brief, Woodfolk maintains that the gov-
ernment breached the plea agreement by arguing for an enhanced sen-
tence based on relevant conduct. He further argues that his guilty plea
was invalid because he was not advised that he was waiving his right
to a jury trial and that a lower standard of proof applied at sentencing.
These arguments are without merit; in particular, the district court
informed Woodfolk of the rights he was waiving during a lengthy and
complete Rule 11 hearing.

                     8
Mumin Sahib Abdullah

At his sentencing hearing, Abdullah personally requested leave to
withdraw his guilty plea. He said he had been pressured to plead
guilty and had since changed his mind and lost confidence in his
retained attorney. He said his attorney had wrongly told him that the
guidelines applicable to him would change before his sentencing. He
said he had been led to believe that his sentence would be considera-
bly shorter than what he now understood he might face, and that evi-
dence of the "Whitelock murders" (of Oliver and Lewis) would not
be considered. The district court found that Abdullah had not shown
a fair and just reason to withdraw his plea and denied the motion. Ab-
dullah decided not to ask for the appointment of new counsel.

Abdullah's base offense level was 32, increased to 35 by an undis-
puted 3-level adjustment for his role in the offense, and decreased
again by 3 levels for acceptance of responsibility. The district court
added a 2-level enhancement for possession of firearms, USSG
§ 2D1.1(b)(1), and a 2-level adjustment for restraint of victim, USSG
§ 3A1.3, bringing Abdullah's guideline range to 36. The court found
that a 2-level departure could be made for physical injury, USSG
§ 5K2.2, property loss, USSG § 5K2.5 or possibly death, USSG
§ 5K2.1. Because Abdullah was in criminal history category VI, his
guideline range was clearly 360 months to life. The court sentenced
Abdullah to 600 months imprisonment.

Abdullah's attorney has filed a brief in this court pursuant to
Anders v. California, 386 U.S. 738 (1967), raising several issues but
stating that in his opinion there are no meritorious issues for appeal.
Abdullah has moved to strike his attorney and to proceed pro se. He
has filed a pro se supplemental brief in which he claims that he has
received ineffective assistance from his counsel at his guilty plea, his
sentencing, and on appeal. He also contends that his guilty plea was
invalid and requests that his plea be vacated and his case remanded
to a different judge.

Counsel first suggests that the government may have failed to dis-
close an unspecified promise to witness Marion Cheatham, who was
serving a probation violation sentence at the time she testified about
the December 1992 murders of Oliver and Lewis. See Giglio v.

                     9
United States, 405 U.S. 150, 154-55 (1972) (when reliability of wit-
ness may determine guilt, failure to disclose promise that affects cred-
ibility is denial of due process). Counsel states that Abdullah has
informed him that Cheatham was released from prison following her
testimony in the sentencing hearing. We note that Abdullah's guilt
was not an issue after his guilty plea and that the district court did not
find that he was implicated in the murders about which Cheatham tes-
tified. Therefore, such a vague and unsupported allegation made on
appeal is hardly sufficient to undermine his conviction.

Next, counsel suggests that due process required the use of a clear
and convincing standard of proof at sentencing rather than the prepon-
derance of the evidence test. As already discussed, this issue is with-
out merit. Counsel and Abdullah (in his supplemental brief) question
whether the conduct supporting the sentence enhancements was rele-
vant conduct. We find that it was because all the acts for which Ab-
dullah was held accountable were acts in which he participated or
were undertaken by others in furtherance of the conspiracy and were
reasonably foreseeable to him and within the scope of his agreement.
USSG § 1B1.3(a)(1).

In his pro se supplemental brief, Abdullah first contends that his
attorney gave him ineffective assistance in connection with his guilty
plea and that his plea was involuntary as a result. He also claims that
the district court abused its discretion in refusing to allow him to
withdraw his guilty plea. Abdullah alleges that his attorney failed to
warn him that he would be considered a career offender and underes-
timated the sentence he might receive. However, the revised presen-
tence report removed the career offender designation. We note that,
like Woodfolk, Abdullah was informed of the maximum sentence and
of the mandatory minimum sentence to which he was exposed at the
Rule 11 hearing. In any case, the issue of an attorney's competency
is better addressed in a motion pursuant to 28 U.S.C. § 2255 (1988),
rather than on direct appeal, unless ineffectiveness conclusively
appears in the trial record. United States v. Williams, 977 F.2d 866,
871 (4th Cir. 1992), cert. denied, 507 U.S. 942 (1993). Because the
record does not conclusively demonstrate that Abdullah's counsel was
ineffective, we will not address the issue here.

Under the test set out in United States v. Moore , 931 F.2d 245, 248
(4th Cir.), cert. denied, 502 U.S. 857 (1991), the district court did not

                     10
abuse its discretion in denying Abdullah's request to withdraw his
plea. Abdullah did not offer credible evidence that his plea was invol-
untary; neither did he offer a credible assertion of innocence. His
motion to withdraw was made at the sentencing hearing two months
after his guilty plea was entered. Abdullah provided no evidence that
his attorney had not performed competently on his behalf. An attor-
ney's erroneous estimate of the applicable guideline range does not
warrant withdrawal of a guilty plea. United States v. Lambey, 974
F.2d 1389, 1395 (4th Cir. 1992) (in banc), cert. denied, ___ U.S. ___,
63 U.S.L.W. 3460 (U.S. Dec. 12, 1994) (No. 94-6055). Both the gov-
ernment and the district court would have been prejudiced by with-
drawal of the plea because numerous witnesses had been assembled
for what turned out to be a four-day sentencing hearing. Had Ab-
dullah gone to trial, many of the same witnesses would have had to
testify again. In sum, we find that the district court did not abuse its
discretion in denying the motion.

In accordance with Anders, we have examined the entire record in
this case and find no meritorious issues for appeal. This court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. We therefore
deny Abdullah's request to strike his counsel and proceed pro se. We
also deny counsel's motion to withdraw at this time. If the client
requests that a petition be filed, but counsel believes that such a peti-
tion would be frivolous, then counsel may move again in this court
for leave to withdraw from representation. Counsel's motion must
state that a copy thereof was served on the client.

Doncarlos Williams

Doncarlos Williams was initially charged only with participating in
the K-Mart robbery. On June 1, 1993, Doncarlos Williams made a
proffer to the government in hopes of entering into a cooperation plea
agreement. A plea agreement was offered to Williams on June 3,
1993, by which Williams was to plead guilty to one count of heroin
distribution. This agreement was never accepted. Sometime between
June 7 and June 15, the government withdrew the offer of a plea
agreement because it doubted the truthfulness of Williams's assertion
that his friend, Garcia Gilmore, a police officer, was not involved in
the K-Mart robbery.

                     11
In January 1994, plea negotiations resumed. In April 1994, Doncar-
los Williams, Abdullah, Corey Woodfolk, and Corey Johnson were
charged in a superseding indictment with participation in the heroin
conspiracy. In September 1994, Williams entered into an agreement
to plead guilty to participating in the heroin conspiracy and his plea
was accepted by the district court.

At his sentencing hearing in March 1995, Williams sought, through
new counsel, to enforce the withdrawn June 1993 plea offer. He relied
on United States v. Cooper, 594 F.2d 12, 17-20 (4th Cir. 1979), which
held that a defendant is entitled to specific performance of a plea
agreement offered by the government and withdrawn while the defen-
dant was attempting to accept it. Williams argued that he had relied
on the government's offer to his detriment by making a proffer of
incriminating information and that, because the government was
never able to prove Garcia Gilmore's involvement, the offer was
improperly withdrawn. However, the district court found that Cooper
did not apply because Williams did not show that he accepted or
attempted to accept the government's offer. The court found that Wil-
liams had given his proffer in reliance on the government's proffer
letter of June 1, 1993, rather than on the unexecuted plea agreement,
and had continued his proffer after the government's offer in hopes
of getting a better offer. The court found that the unexecuted plea
agreement was not enforceable and sentenced Williams according to
the agreement he signed in September 1994.

On appeal, Williams argues that the government breached the June
1993 plea "agreement" by withdrawing its offer. Judicial interpreta-
tion of plea agreements is governed primarily by the law of contracts.
United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994). Factual
questions are reviewed under the clearly erroneous standard while
principles of contract interpretation are reviewed de novo. Id. Wil-
liams's attorney represented that his failure to accept the June 1993
offer might have been due to time constraints, but no evidence to that
effect was presented. As the district court found, there was no evi-
dence that Williams made any attempt to accept the offer before it
was withdrawn. His case is thus distinguishable from Cooper, assum-
ing that Cooper retains any validity after the Supreme Court's deci-
sion in Mabry v. Johnson, 467 U.S. 504, 507-11 (1984), that
acceptance of a proposed plea bargain does not create a right to spe-

                    12
cific enforcement of the bargain if it is withdrawn by the government
prior to entry of a guilty plea. Cf. Plaster v. United States, 789 F.2d
289, 292-93 (4th Cir. 1986) (dicta indicating Cooper was overruled
by Mabry). We cannot say that the district court was clearly erroneous
in finding that Williams neither accepted the June 1993 offer nor
relied on it in making his proffer. Therefore, he was not entitled to
specific performance of that offer.

We therefore affirm the convictions of Woodfolk, Abdullah, and
Woodfolk and the sentences imposed on Woodfolk, David Williams,
and Doncarlos Williams. We deny Woodfolk's motion to strike the
Appellee's brief and supplemental appendix. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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