UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 95-5463

SHERRY LUANN WATERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-94-44)

Submitted: October 17, 1996

Decided: October 25, 1996

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen P. Lindsay, LINDSAY & HENSLEY, Asheville, North Caro-
lina, for Appellant. Mark T. Calloway, United States Attorney, Robert
J. Conrad, Jr., Assistant United States Attorney, Charlotte, North Car-
olina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Sherry Luann Waters appeals her conviction and sentence for con-
spiracy to possess more than 500 grams of cocaine and more than 50
grams of crack cocaine with intent to distribute, 21 U.S.C.A. § 846
(West Supp. 1996). Waters contends that the district court erred in
accepting her guilty plea because she received ineffective assistance
of counsel in connection with her plea. She also maintains that the
court erred in sentencing her by considering hearsay evidence in
determining the amount of drugs attributable to her without having an
adequate basis for judging its reliability. She further alleges that the
court erred in enhancing her sentence for possession of a firearm,
USSG § 2D1.1(b)(1),* and in finding that she had not accepted
responsibility for her conduct, USSG § 3E1.1. Finding no error, we
affirm the conviction and sentence.

At her guilty plea hearing, Waters deferred presentation of a factual
basis for the plea until sentencing. Information in her presentence
report revealed that she was involved in an extensive crack conspiracy
which flourished in Henderson County and Rutherford County, North
Carolina, from 1991 to March 1994. The leader of the conspiracy was
Lance McGrady, Waters' boyfriend. He arranged for the transporta-
tion of cocaine from Florida through Atlanta to North Carolina, where
it was cooked into crack at various locations and distributed to numer-
ous lower-level conspirators.

In her interview with the probation officer, Waters said she sus-
pected McGrady might be involved in drug dealing, but denied any
real knowledge of it. Waters objected to the probation officer's rec-
ommendation that she was responsible for more than 1.5 kilograms
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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of crack and several kilograms of powder cocaine, giving her a base
offense level of 38.

At the sentencing hearing, the government presented evidence of
Waters' involvement through the case agent, who summarized state-
ments and trial testimony of other participants or observers. Accord-
ing to these statements, Waters lived in a house rented for her by
McGrady. When the house was searched, a revolver was found on top
of her refrigerator and a box of ammunition for the pistol was also in
the house. Waters twice carried cocaine into a co-conspirator's apart-
ment where McGrady cooked it into crack. On one occasion, out of
a total of eighteen ounces of cocaine, McGrady cooked six to eight
ounces into crack. On that occasion, Waters was carrying a handgun
which she handed to McGrady at his request. She was also present
once when McGrady fronted Chucky Mayse eighteen ounces of
cocaine. On another occasion, Waters cleaned the utensils used to
cook four or five ounces of crack. She participated in shredding a
number of one-ounce crack cookies in her kitchen for re-cooking.

Waters also traveled to Florida with McGrady and wired money to
McGrady in Florida for Chucky Mayse, a close associate of
McGrady. Investigators confirmed this particular information when
they recovered Western Union receipts showing that Waters trans-
ferred money to McGrady in Florida on three occasions. Co-
conspirator Calvin Ferguson told investigators that he transported a
kilogram of cocaine from Florida for McGrady three times; on one
occasion McGrady and Waters met him in Atlanta and accompanied
him to North Carolina. In March 1994, Waters was present with
McGrady in one of four cars traveling together on I-85 north of
Atlanta. A kilogram of cocaine was seized from one of the cars; it was
wrapped in duct tape smeared with car wax. Similar tape and car wax
were found in the car in which Waters was riding. Mayse was arrested
later that day.

Waters presented no evidence to rebut the government's evidence
of her involvement. She testified that she had no knowledge of a fire-
arm in her house and denied handing McGrady a firearm while he
was cooking crack. She argued that the drugs distributed by McGrady
and others were not reasonably foreseeable to her. The district court
found that the government had proved Waters' personal possession of

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a kilogram of cocaine and eighteen ounces of cocaine (510.3 grams)
at different times as well as her observation of crack production and
continuous association with the masterminds of the conspiracy. The
court found that at least 1.5 kilograms of crack was reasonably fore-
seeable to her.

Waters contends on appeal that the sentencing judge could not ade-
quately assess the reliability of the hearsay evidence because a differ-
ent judge presided at the trial of her co-conspirators, from which some
of the government's evidence was drawn, and because she had no
opportunity to cross-examine those witnesses. She claims that the dis-
trict court abused its discretion and ultimately sentenced her on the
basis of false allegations because the court declined to review tran-
scripts of her co-defendants' trials.

However, the government may meet its burden of proving by a pre-
ponderance of the evidence the amount of drugs attributable to a
defendant by presenting evidence at the sentencing hearing, including
hearsay evidence if the defendant is given the opportunity to rebut or
explain it. United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993);
United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). The
Confrontation Clause does not bar the sentencing court's consider-
ation of reliable hearsay. United States v. Petty, 982 F.2d 1365, 1367-
69 (9th Cir.), amended, 992 F.2d 1015 (1993), cert. denied, 510 U.S.
1040 (1994). To comply with the requirements of due process, factual
evidence submitted at sentencing need only have a minimal indicia of
reliability, i.e., it must be more than mere allegation. United States v.
Hicks, 948 F.2d 877, 883 (4th Cir. 1991) (citations omitted). Here, all
the statements summarized by the agent were consistent. Moreover,
Waters had the opportunity to cross-examine the government agent at
sentencing, and also testified herself, though she chose not to discuss
the extent of her involvement. She did submit a statement to the court
which purported to explain fully her knowledge of the conspiracy. On
these facts, we find that the district court did not err in considering
the government's hearsay evidence to determine the amount of drugs
for which she was responsible.

Moreover, the government's evidence that Waters was present and
possessed a firearm while McGrady was cooking crack and that a
firearm was stored in her house, where crack was re-processed on one

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occasion, was more than adequate to support a two-level enhance-
ment. USSG § 2D1.1(b)(1), comment. (n.3). While Waters testified
that she never possessed a firearm and was unaware of the firearm
found in her house, the district court did not find her testimony credi-
ble, and thus the enhancement was not clearly erroneous.

Waters argues that she was entitled to a three-level reduction for
acceptance of responsibility based on her guilty plea and the written
statement she submitted to the court at sentencing. The statement is
not contained in the materials presented on appeal; however, the dis-
trict court found it self-serving and in conflict with other evidence
which the court found true. In addition, the court found that Waters
had testified untruthfully when she said she did not possess a firearm
during the conspiracy. A defendant has the burden of demonstrating
acceptance of responsibility by truthfully admitting the conduct com-
prising her offense, including all relevant conduct. USSG § 3E1.1,
comment. (n.1(a)). The court's factual finding on this issue is
reviewed for clear error. United States v. Curtis, 934 F.2d 553, 557
(4th Cir. 1991). The record discloses that, despite her guilty plea,
Waters denied or minimized her conduct throughout the proceedings
below. Therefore, the court did not clearly err in denying her the
adjustment.

Finally, Waters claims that the district court erred in allowing her
to plead guilty because her attorney was ineffective in failing to
advise her accurately, at the time of her plea, as to the amount of
crack for which she would be held responsible. A claim of ineffective
assistance is not properly raised on direct appeal unless the record dis-
closes conclusively that defense counsel was ineffective. United
States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992), cert. denied,
507 U.S. 942 (1993). Here, Waters' attorney asserted at sentencing
that he was surprised by additional evidence of her involvement
which was developed after her plea. However, Waters was advised at
the Fed. R. Crim. P. 11 hearing that she could be facing a sentence
of ten years to life and that she could not withdraw her plea simply
because her sentence was harsher than expected. She did not ask to
withdraw her plea on this ground and she was not entitled to do so.
United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991), cert.
denied, 503 U.S. 997 (1992). Because the record does not conclu-
sively show ineffective assistance, we do not address the issue.

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For the reasons discussed, the conviction and sentence are
affirmed. We dispense with oral argument because the facts and legal
contentions are adequately presented in the record and briefs, and oral
argument would not aid the decisional process.

AFFIRMED

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