UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5455

RAY LEVERN FIELDS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-95-6-S)

Submitted: May 28, 1996

Decided: June 27, 1996

Before HALL, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David B. Hamilton, Deborah M. Thompson, OBER, KALER,
GRIMES & SHRIVER, Baltimore, Maryland, for Appellant.
Andrea L. Smith, OFFICE OF THE UNITED STATES ATTOR-
NEY, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Ray Levern Fields was charged in a two count indictment. Count
one charged him with conspiracy to distribute and to possess with
intent to distribute heroin in violation of 21 U.S.C.A. § 846 (West
1996). Count two charged Fields with possession with intent to dis-
tribute heroin, 21 U.S.C.A. § 841 (West 1991 & Supp. 1996). Fields
pled guilty to count one of the indictment, and as part of the plea
agreement, the Government moved to dismiss count two. Following
a Fed. R. Crim. P. 11 hearing, the court accepted Fields' plea. The
court imposed a sentence of sixty-two months imprisonment, super-
vised release of four years with special conditions, and a special
assessment of fifty dollars.

The State of Maryland charged Fields with possession with intent
to manufacture or distribute heroin, also the underlying offense in the
federal charges. He received a sentence of four years imprisonment,
with three years and six months suspended. Fields served one month
for the state charges. Upon Fields' guilty plea to the federal charge,
Maryland agreed to dismiss the charges and closed the case on July
29, 1994. At sentencing before the district court, Fields did not
receive criminal history points for the state charge and received a one-
month credit for time served.

Appellant's counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), challenging whether the district
court had jurisdiction over the charges, whether the indictment was
legally sufficient, whether the guilty plea was valid (including
whether the Rule 11 hearing was sufficient), and whether there was
a sentencing error, but stating that in counsel's view there existed no
non-frivolous grounds for appeal. Fields filed a pro se supplemental
brief challenging whether he received effective assistance of counsel,
whether his plea was voluntary, and whether the federal prosecution
violated double jeopardy principles. Finding no error, we affirm.

I

Conspiracy to distribute and to possess with intent to distribute a
quantity of heroin is an offense under the United States Code. 21

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U.S.C.A. §§ 841(a)(1), 846 (West 1981 & Supp. 1996). United States
district courts have jurisdiction over all offenses which are violations
of federal law. 18 U.S.C. § 3231 (1988). Therefore, the district court
had jurisdiction over the charges made in the indictment.

II

An indictment must apprise the accused of the essential elements
of each charge against him. United States v. Pupo, 841 F.2d 1235,
1239 (4th Cir.), cert. denied, 488 U.S. 842 (1988). Ordinarily, an
indictment which follows the language of the criminal statute is valid.
United States v. American Waste Fibers Co., 809 F.2d 1044, 1046
(4th Cir. 1987). The indictment stated the time frame of the activity,
the place of the offense, the other co-conspirators involved in the
charges, the controlled substance involved, and cited the statutes vio-
lated. The indictment was therefore sufficient.

III

In his pro se supplemental brief, Fields states that his plea was not
voluntary because he received ineffective assistance of counsel, and
his attorney and the Government's attorneys demanded that he sign
the plea agreement, although he refused to sign it at two earlier ses-
sions. A claim of ineffective assistance is not cognizable on direct
appeal unless counsel's deficiency clearly appears on the face of the
record. United States v. DeFusco, 949 F.2d 114 (4th Cir. 1991), cert.
denied, 503 U.S. 997 (1992). The defendant must receive reasonably
competent assistance in the counseling of his guilty plea. A modified
Strickland1 error and prejudice test applies to errors in counseling
guilty pleas. The prejudice element requires showing that there is a
reasonable probability that, but for counsel's errors, the defendant
would not have pled guilty. Hill v. Lockhart, 474 U.S. 52 (1985).
Fields does not make any specific allegations of prejudice, nor does
he claim that he would not have pled guilty without counsel's advice.
The record does not clearly reflect ineffective assistance rendering
Fields' guilty plea involuntary.
_________________________________________________________________

1 Strickland v. Washington, 466 U.S. 668 (1984).

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A guilty plea may also be invalid if the plea was induced by threats
or misrepresentations. Brady v. United States , 397 U.S. 742 (1970).
Fields states that his attorney and the Government attorneys "de-
manded" that he sign the agreement and "badgered" him. He states
that his counsel told him that if he didn't sign the plea agreement, the
judge would deny a suppression motion, the jury would find him
guilty, and the judge would give him the maximum sentence. Fields
stated during the Rule 11 hearing that no one had threatened him or
forced him to plead guilty, and that statement is presumed to be true.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Fields' unsupported
allegations on appeal are insufficient to overcome his sworn state-
ments at arraignment. Therefore, we find that his plea was voluntary.

IV

Fields' appellate counsel stated that Fields' plea complied with
Fed. R. Crim. P. 11. Fields alleges in his supplemental brief that the
court did not make a factual basis determination, and merely read to
Fields the conclusory statement of facts from the plea agreement. In
reviewing the adequacy of compliance with Rule 11, this court
accords "deference to the trial court's decision as to how best to con-
duct the mandated colloquy with the defendant." United States v.
DeFusco, 949 F.2d at 116. Rule 11 violations are evaluated under the
harmless error standard. Id. at 117. This court may vacate a convic-
tion resulting from a guilty plea only if the trial court's violations of
Rule 11 affected the defendant's substantial rights. Id.

At the time the plea was entered, Fields was fifty-four years old
with an eighth-grade education and fair reading ability that allowed
him to read and understand all the documents in the case. He
informed the court that he was not under the influence of drugs or
alcohol. Fields stated that he was satisfied with his counsel's repre-
sentation and the district court determined that Fields was competent
to enter his plea.

The court ascertained that Fields understood what rights he was
waiving by entering a guilty plea, and Fields acknowledged that he
was aware of his rights. Count One of the indictment, to which Fields
pled guilty, was read in open court. The court recited the elements of
the offense that the Government would have to prove at trial. The

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court also recited relevant information from the statement of facts
included in the plea agreement the parties agreed that the Government
would prove if the case went to trial.2 The judge stated that after the
executions of the warrants, Neverdon continued to traffic heroin and
replaced Fields with Douglas Donahue after Fields was in jail. Inter-
cepts were placed on Neverdon's and Donahue's phones and taped
conversations implicated Fields in the conspiracy, and Fields was
taped participating in drug-related conversations.

Fields argues that the judge's review of the factual basis for his
plea did not establish the precise acts or conduct which constituted his
offense, and that the statement of facts reviewed was conclusory.
Considering the detailed review of the stipulated facts, we find that
the district court made an adequate assessment of the factual basis for
the plea.

The district court also carefully explained that the minimum pen-
alty was five years and that the maximum penalty was forty years
imprisonment, a two million dollar fine, and a fifty dollar special
assessment, but that the Government was not seeking a fine or restitu-
tion, with the exception of the special assessment. The court stated
that the prison term was without parole and would be followed by a
term of supervised release of not less than four or more than five
years.

The court discussed the application of sentencing guidelines and
explained that it had the authority to depart from the guidelines in cer-
tain circumstances. The court further discussed the base offense level,
and Fields' tentative criminal history category, pending the pre-
sentence report. Fields stated that he had reviewed the sentencing
guidelines with his attorney and understood them.
_________________________________________________________________

2 Specifically, the court stated that Fields assisted Robert Neverdon
with the distribution of heroin beginning before January 1993, was pres-
ent when police executed a search warrant at the Neverdon residence
where nine bags of heroin and nine thousand dollars in U.S. currency
were found, and police executed a search warrant at Fields' residence
where they found a pound of heroin, cutting agents, hundreds of glassine
bags, and a triple beam scale.

                    5
Finally, the court discussed the plea agreement. Fields assured the
court that he had adequate time to consider the agreement and decide
whether to sign it. He denied that he was pleading guilty as a result
of any force or threats. A review of the transcript reveals full compli-
ance with Rule 11. Accordingly, Fields' claim of error is without
merit.

V

Violations of 21 U.S.C.A. § 846 receive the same penalties as those
prescribed for the underlying offense. Under 21 U.S.C.A.
§ 841(b)(1)(B), the sentence is a term of imprisonment of at least five
years and no more than forty years. Therefore, the district correctly
assessed the statutory minimum and maximum sentence.

The base offense levels for offenses involving drugs is found at
USSG § 2D1.1. This section provides for a base offense level of thirty
for offenses involving the distribution or possession with intent to dis-
tribute at least 700 grams but less than one kilogram of heroin. USSG
§ 2D1.1(c)(5). The stipulated facts of the plea agreement concluded
that at least 999 grams of heroin was reasonably foreseeable to Fields.
The pre-sentence report computed a two level reduction under
§ 3B1.2(b) based upon Fields' minor role in the conspiracy. The dis-
trict court awarded an additional three-level reduction for acceptance
of responsibility under § 3E1.1, bringing the base offense level down
to twenty-five.

The pre-sentence report assessed four criminal history points. The
district court, however, found only two points to be appropriate, and
sentenced Fields under criminal history category II. The Guideline
range was therefore sixty-three to seventy-eight months imprison-
ment. USSG Ch. 5 Pt. A. The Government agreed in the plea agree-
ment to recommend a sentence in the low end of the guideline range,
and honored its agreement. We find that the district court properly
sentenced Fields to sixty-two months imprisonment. 3
_________________________________________________________________
3 The district court awarded a one-month reduction for time Fields
served while in jail on the state charges which were dismissed after
Fields pled guilty to the federal charge.

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VI

Fields' supplemental informal brief sets forth four additional
claims of ineffective assistance of counsel. Fields claims that his trial
counsel showed a lack of due diligence, and alleges that his attorney
refused or waived motions for discovery. He further alleges that his
attorney refused to independently investigate the case, "piggy-
backed" on his co-defendants' counsel, and refused to present the
issue of double jeopardy.

As discussed above, ineffective assistance claims are not properly
raised on direct appeal unless it "conclusively appears" from the
record that defense counsel did not provide effective representation.
See United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992), cert.
denied, 507 U.S. 942 (1993). Ineffective assistance is not apparent
from the record in this case. Fields' ineffective assistance claims
involve the failure to make an independent assessment of the case, or
a refusal to conduct the case as Fields wished. At the re-arraignment,
Fields stated that he was satisfied with his counsel's efforts and that
there was nothing that he asked his counsel to do that his counsel
failed, refused, or neglected to do. We therefore decline to consider
this argument on direct appeal.

VII

Finally, Fields alleges that the simultaneous prosecution of both the
state and federal charges for the same underlying offense violates
double jeopardy principles. Fields claims that the state prosecution
served as a tool for the federal prosecution, and therefore the dual
sovereignty doctrine should not apply.

The Fifth Amendment states that no person shall"be subject for the
same offense to be twice put in jeopardy of life or limb." U.S. Const.
amend. V. Under the "dual sovereignty" concept, a federal prosecu-
tion does not bar a subsequent state prosecution of the same person
for the same act, and a state prosecution does not bar a federal action.
Bartkus v. Illinois, 359 U.S. 121 (1959); United States v. Iaquinta,
674 F.2d 260 (4th Cir. 1982).

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Maryland dismissed the state charges when Fields pled guilty to the
federal charges based upon the same offense, Fields did not receive
criminal history points for the dismissed state charges during sentenc-
ing, and he received a one-month credit for the time he served on the
state charges. Although Fields alleges that the Maryland prosecution
merely acted as a tool for the federal prosecution, he offers no evi-
dence in support of this claim. We find that the federal prosecution
did not violate double jeopardy principles.

VIII

We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.
The court requires that counsel inform their client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.

We affirm the district court's judgment order. We deny Appellant's
motion to appoint new counsel. 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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