UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 96-4885
MERVYN CLINTON GODDARD, a/k/a
Sence,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Samuel G. Wilson, Chief District Judge.
(CR-93-4)

Argued: December 3, 1997

Decided: January 28, 1998

Before WILKINS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Edward Henry Weis, First Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Donald Ray
Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for
Appellee. ON BRIEF: Hunt L. Charach, Federal Public Defender,
Charleston, West Virginia, for Appellant. Robert P. Crouch, Jr.,
United States Attorney, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Mervyn Clinton Goddard appeals the sentence imposed upon him
by the district court following his guilty plea to one count of conspir-
acy to possess with the intent to distribute and to distribute cocaine
base, see 21 U.S.C.A. § 846 (West Supp. 1997), and two counts of
distributing, or aiding and abetting another to distribute, cocaine base,
see 18 U.S.C.A. § 2 (West 1969); 21 U.S.C.A. § 841(a)(1) (West
1981). Goddard principally contends that the district court failed to
make a factual finding necessary to trigger application of a 20-year
mandatory minimum sentence. See 21 U.S.C.A.§ 841(b)(1)(A) (West
Supp. 1997). Goddard also argues that his immunized proffered testi-
mony was improperly used against him and that he was denied the
effective assistance of counsel. Finding no error, we affirm.

I.

Prior to entering a plea agreement, Goddard met with law enforce-
ment officials to discuss his role in the conspiracy. During that meet-
ing, Goddard indicated that he sold $1,000 worth of cocaine base on
four or five occasions. Goddard later signed a plea agreement that
obligated him to cooperate with law enforcement agents and to testify
truthfully if called upon to do so. In return, the Government promised
that no information given during the prior meeting would be used
against Goddard to enhance his sentence or to determine the quantity
of drugs attributable to him for sentencing purposes. Goddard was
also promised that he would be given the opportunity to provide assis-
tance to the Government and that, if certain conditions were met, the
Government would move for a downward departure based on God-
dard's substantial assistance. See 18 U.S.C.A. § 3553(e) (West Supp.
1997);*U.S. Sentencing Guidelines Manual§ 5K1.1 (1993).
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*Section 3553(e) provides in pertinent part that"[u]pon motion of the
Government, the court shall have the authority to impose a sentence

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The presentence report regarding Goddard estimated that 240
grams of cocaine base was attributable to him within the scope of the
conspiracy. Based on that amount and the fact that Goddard previ-
ously had been convicted of a felony drug offense, the report stated
that a 20-year mandatory minimum sentence applied. See 21 U.S.C.A.
§ 841(b)(1)(A). Importantly, defense counsel did not challenge the
conclusion in the presentence report that Goddard satisfied the condi-
tions necessary to trigger application of the 20-year mandatory mini-
mum sentence. Indeed, the record clearly demonstrates that the
sentencing proceeding was conducted with the understanding by
counsel for the Government, counsel for Goddard, and the court that
the 20-year mandatory minimum statute applied. However, recogniz-
ing that the district court would have discretion to determine the
extent of any departure from that mandatory minimum in the event
that the court granted the Government's substantial assistance motion,
defense counsel concentrated his efforts on offering evidence that
Goddard was at most a minor participant in the conspiracy and was
not aware of its full scope.

Defense counsel argued that Goddard was responsible for, "at best,
around 40 or 50 grams, even maybe perhaps 60." J.A. 202. When spe-
cifically asked by the court what finding defense counsel wanted the
court to make with respect to the amount of cocaine base attributable
to Goddard, defense counsel replied, "I guess I'm just looking for
about 60.... I think that would be going extremely high." J.A. 204.
The court accepted defense counsel's recommendation, finding that
"perhaps the Court cannot reasonably place more than 60 grams[ with
Goddard], although there may be other evidence out there." J.A. 207.
The court noted that accepting the drug amount suggested by defense
counsel rather than the estimate in the presentence report did not
affect the sentencing guideline calculation because the 60-gram quan-
tity remained sufficient to trigger the 20-year mandatory minimum
sentence. The court then granted the Government's substantial assis-
tance motion and, departing from the 20-year mandatory minimum
term, sentenced Goddard to ten years imprisonment.
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below a level established by statute as minimum sentence so as to reflect
a defendant's substantial assistance in the investigation or prosecution of
another person who has committed an offense." 18 U.S.C.A. § 3553(e).

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II.

Goddard first contends that the district court failed to find that a
drug quantity of at least 50 grams was reasonably foreseeable to God-
dard within the scope of his agreement in the conspiracy and therefore
that the court erred in employing the 20-year mandatory minimum
sentence as a point of departure. See United States v. Morgan, 942
F.2d 243, 245 (4th Cir. 1991). We disagree.

A determination of the quantity of a controlled substance attribut-
able to a defendant for sentencing purposes following a conviction for
a violation of § 846 requires a district court to make a factual finding
concerning the amount of narcotics reasonably foreseeable to the indi-
vidual conspirator within the scope of his agreement. See United
States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993). However, because
defense counsel specifically requested a finding of 60 grams, did not
challenge the application of the 20-year mandatory minimum sen-
tence, and in fact repeatedly intimated to the district court that the
statute was applicable, any error by the district court in employing the
20-year sentence as a point of departure was invited. See United
States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (holding that a crimi-
nal defendant cannot complain of an error that he has invited).

Assuming arguendo that the alleged error was not invited, because
Goddard failed to object to the application of the 20-year mandatory
minimum, our review is for plain error. See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993). In order to
establish our authority to notice an error not preserved by a timely
objection, Goddard must show that the error occurred, that the error
was plain, and that the error affected his substantial rights. See Olano,
507 U.S. at 732; United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.
1996). Furthermore, even if Goddard can meet this burden, we must
determine whether this is an appropriate situation for an exercise of
our discretion to correct the error, i.e., whether it "`seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.'"
Olano, 507 U.S. at 732 (alteration in original) (quoting United States
v. Young, 470 U.S. 1, 15 (1985)); see United States v. David, 83 F.3d
638, 641 (4th Cir. 1996).

We conclude that Goddard has failed to show that the district court
did not make an adequate factual finding concerning the amount of

                     4
cocaine base attributable to him. See Morgan, 942 F.2d at 245. God-
dard argues that the language of the district court that "perhaps the
Court cannot reasonably place more than 60 grams" demonstrates
that the court did not find an amount of 60 grams but rather found
only an amount of not more than 60 grams. J.A. 207 (emphasis
added). The context of the finding belies this characterization, how-
ever. Prior to making the statement at issue, the district court specifi-
cally inquired concerning what finding the defense would
recommend, and defense counsel responded that it would be reason-
able to attribute 60 grams of cocaine base to Goddard. When the lan-
guage of the court is viewed in that context, it is clear that the court
simply accepted defense counsel's recommendation and expressed
possible agreement with the assertion that the facts did not justify a
finding of a greater quantity. Thus, we find no error, let alone plain
error, by the district court.

III.

Goddard also maintains that the district court committed plain error
in allowing the probation officer to use Goddard's immunized state-
ments in calculating the quantity of cocaine base for which he was
responsible. See United States v. Malvito, 946 F.2d 1066, 1068 (4th
Cir. 1991) (holding that information obtained by virtue of a defen-
dant's cooperation cannot serve as the basis to enhance a defendant's
sentence when the government has agreed not to use the information
for that purpose). However, the record simply does not support God-
dard's allegation that the probation officer employed the immunized
statements. Although Goddard claims that no source other than his
own immunized statement was given as a basis of the probation offi-
cer's estimates, the probation officer clearly testified that his esti-
mates were based on information provided by other members of the
conspiracy.

IV.

Finally, Goddard argues that he was denied the effective assistance
of counsel. However, "a claim of ineffective assistance should be
raised in a 28 U.S.C. § 2255 motion in the district court rather than
on direct appeal, unless the record conclusively shows ineffective
assistance." United States v. Williams, 977 F.2d 866, 871 (4th Cir.

                     5
1992). Because the record does not conclusively demonstrate ineffec-
tiveness, we decline to address the issue. This issue may be asserted
in a § 2255 proceeding should Goddard choose to do so.

V.

We conclude that the district court did not commit reversible error
in finding the quantity of cocaine base attributable to Goddard for
sentencing purposes. Furthermore, we conclude that Goddard's claim
that the court committed plain error by allowing the probation officer
to employ Goddard's immunized statements to enhance his sentence
is without merit. And, we determine that his assertion of ineffective
assistance of counsel is not properly before this court. Accordingly,
we affirm.

AFFIRMED

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