UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4763

SAMUEL WRIGHT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-98-411)

Submitted: May 31, 2000

Decided: July 18, 2000

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John G. Lafratta, COWAN, NORTH & LAFRATTA, L.L.P., Rich-
mond, Virginia, for Appellant. Helen F. Fahey, United States Attor-
ney, Stephen W. Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Samuel Wright was convicted pursuant to his guilty pleas of pos-
session with intent to distribute crack cocaine and possession of a
firearm in furtherance of a drug trafficking crime. On appeal, Wright
alleges that the district court erred by denying his motions to suppress
evidence seized during a search of his apartment, to suppress state-
ments he made to police officers following his arrest, and to dismiss
the charges against him due to prosecutorial misconduct.1 Wright also
alleges that his counsel rendered ineffective assistance. Finding no
reversible error, we affirm.

During the course of their investigation of Wright, Richmond
police received information from an informant that Wright was dis-
tributing drugs from his apartment. According to the affidavit in sup-
port of the search warrant, the informant had personally witnessed
Wright exit his apartment with drugs, exchange the drugs for money,
and return to his apartment for more drugs. Police officers obtained
a search warrant and apprehended Wright outside his apartment. Offi-
cers seized drugs and a firearm during their search of the apartment,
and Wright made several incriminating statements following his
arrest.

Wright alleges on appeal that the search warrant was not supported
by probable cause. We accord "great deference" to the magistrate
judge's assessment of the facts when making a probable cause deter-
mination. See Illinois v. Gates, 462 U.S. 213, 236 (1983); United
States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990). Our inquiry
is limited to whether there was a substantial basis for the magistrate
judge's conclusion that probable cause existed. See Blackwood, 913
F.2d at 142. There are no bright-line rules for making this determina-
tion; rather the magistrate judge must use common sense in deciding
whether there is a fair probability that the evidence sought will be
found in the place to be searched. Id.
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1 Wright reserved the right to challenge the court's denial of his
motions in his plea agreement.

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In the present case, we find that the district court conducted a
proper inquiry and correctly found that there was a substantial basis
for the magistrate judge's probable cause determination. The affidavit
in support of the search warrant clearly stated that the informant was
reliable2 and that the information was based on the informant's per-
sonal observations. In addition, officers observed Wright act consis-
tently with the informant's information.

Wright next alleges that the district court should have suppressed
all statements he made to police after his arrest because he was not
advised of his rights and the officers coerced him into making incrim-
inating statements. Contrary to Wright's testimony at the suppression
hearing, two officers testified that Wright was advised of his rights,
that he was very cooperative, and that they did not threaten him in any
way. After reviewing the district court's findings of fact concerning
the circumstances of the incriminating statements for clear error and
its finding of voluntariness de novo, see United States v. Braxton, 112
F.3d 777, 781 (4th Cir. 1997) (en banc), we find this contention to be
without merit.

We likewise reject Wright's claim that the case against him should
have been dismissed due to prosecutorial misconduct. The record
shows that Wright brought an exculpatory affidavit to his initial
appearance. He admitted that he thought the appearance was for a
bond hearing and that he gave the affidavit to a federal agent and the
prosecutor in the hope that it would help him receive a lower bond.
Wright claims that he was prejudiced when the agent and prosecutor
made a copy of the affidavit.3 We find this claim frivolous. Not only
does Wright fail to show how he was prejudiced, but, as the district
court noted, the record clearly shows that he voluntarily gave the
Government a copy of the affidavit.
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2 We reject Wright's contention that the informant was not reliable
because none of the information he/she had given in the past had led to
a conviction. This fact alone is not dispositive. Nevertheless, the officer
in charge of the investigation testified that the previous cases had simply
not come up for trial at the time the present warrant was executed, but
convictions had been obtained by the time of Wright's trial.

3 It is undisputed that the originals were promptly returned to Wright.

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Finally, we review claims of ineffective assistance of counsel on
direct appeal only when the ineffectiveness "conclusively appears" on
the record. See United States v. Smith, 62 F.3d 641, 651 (4th Cir.
1995). Otherwise, such claims should be raised in the district court in
a habeas corpus proceeding rather than in this court by direct appeal.
See id.

In the present case, Wright alleges that counsel rendered ineffective
assistance by failing to subpoena witnesses in support of his motions,
misadvising him about the possible maximum penalty he faced, and
improperly advising him to plead guilty to the firearms charge.
Wright's first two claims are clearly best left for a habeas proceeding,
where counsel will have the opportunity to respond. We find nothing
in the record which conclusively shows that counsel acted improperly.

Wright's remaining claim misinterprets the Supreme Court's deci-
sion in Bailey v. United States, 516 U.S. 137 (1995). While Wright
is correct that there is insufficient evidence to show that he used or
carried a firearm, he was not charged under this portion of the statute.4
Rather, Wright was charged under the portion that prohibits posses-
sion of a firearm in furtherance of a drug trafficking crime. Properly
developed, evidence that a firearm was found in close proximity to a
supply of drugs could support a conviction under this portion of the
statute. As a result, we do not find counsel's advice glaringly defi-
cient.

We therefore affirm Wright's convictions and sentence. We dis-
pense 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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4 See 18 U.S.C.A. § 924(c) (West Supp. 1999).

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