                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5260


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRY DEMOND CUNNINGHAM,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.       Margaret B. Seymour, Chief
District Judge. (3:08-cr-00946-MBS-4)


Submitted:   January 31, 2012             Decided:   February 23, 2012


Before GREGORY, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Timothy Ward Murphy, KOLB & MURPHY, ATTORNEYS AT LAW, PLLC,
Sumter, South Carolina, for Appellant.      John David Rowell,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Terry    Demond       Cunningham     was     convicted       after     a    jury

trial of conspiracy to possess with intent to distribute and to

distribute five or more kilograms of cocaine and fifty or more

grams of cocaine base in violation of 21 U.S.C.A. §§ 841(a)(1),

(b)(1)(A), (b)(1)(C), 846 (West 1999 & Supp. 2011), and use of a

communication facility to facilitate the commission of a drug

trafficking    offense,      in      violation   of    21    U.S.C.      §    843(b),    18

U.S.C. § 2 (2006).         The district court sentenced Cunningham to a

total of 240 months’ imprisonment.                 The court also imposed ten

years of supervised release and a $200 assessment and ordered

the   forfeiture     of    an     automobile     that     was     derived      from     the

proceeds of the offenses.             Cunningham’s counsel filed a brief in

accordance    with    Anders       v.   California,         386   U.S.       738   (1967),

stating that, in counsel’s view, there are no meritorious issues

for appeal, but challenging the district court’s determination

that Cunningham breached the proffer agreement, the denial of

Cunningham’s        motion      to      suppress       wiretap        evidence,         the

sufficiency    of    the     evidence,     and     the    reasonableness           of   the

sentence.

            Cunningham filed a pro se supplemental brief asserting

that the district court erred by denying his request for a jury

charge on multiple conspiracies and raising numerous challenges

to the effectiveness of counsel.                   Pursuant to our obligation

                                           2
under    Anders,          we     have    reviewed            the    entire       record     for   any

meritorious issue for appeal.                          Finding no reversible error, we

affirm.

              Counsel first contends that the district court erred

in    finding      Cunningham           in    breach          of    the     proffer     agreement.

Cunningham asserted that he was given only the last page of the

agreement      and        told    by    his        attorney         that    if    he    signed    the

document, the government would not oppose his release on bond

and    that     he    would        receive         a       lesser       sentence.         Cunningham

asserted      that        his    obligations               under    the    agreement       were   not

explained to him and that he did not see the entirety of the

document until nearly six months later, and after his initial

debriefing by the government.

              Cunningham’s former counsel testified at the hearing

pursuant      to          Cunningham’s             waiver          of     the     attorney–client

privilege,       and       informed          the       court       that     he    had   thoroughly

reviewed the entire agreement with Cunningham before Cunningham

signed it, that Cunningham knew the contents and his obligations

under the agreement, and also was informed that the agreement

did not provide for a lesser sentence.

              After hearing all the evidence, the court granted the

government’s         motion        to    hold          Cunningham          in     breach    of    the

agreement.           We    find    no    clear             error   in     the    district    court’s

credibility determination or factual findings and no error in

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its    legal        conclusions      that   Cunningham         breached         the    proffer

agreement and that his statements could thus be used against

him.        See United States v. Lopez, 219 F.3d 343, 346 (4th Cir.

2000); United States v. Seeright, 978 F.2d 842, 846 (4th Cir.

1992).

               Next, counsel contends that the district court erred

in denying Cunningham’s motion to suppress the wiretap evidence.

Cunningham argued that the government failed to meet its burden

of showing that traditional investigative techniques were likely

to     be     wholly       unsuccessful.              The    purpose       of    18     U.S.C.

§ 2518(1)(c),          (3)(c)     (2006),        is     to    make     sure      that     “the

relatively intrusive device of wiretapping is neither routinely

employed as the initial step in criminal investigation . . . nor

resorted       to    in    situations   where         traditional      techniques        would

suffice to expose the crime.”                United States v. Smith, 31 F.3d

1294, 1297 (4th Cir. 1994) (quoting United States v. Giordano,

416 U.S. 505, 515 (1974), and United States v. Kahn, 415 U.S.

143, 153 n.12 (1974)) (internal quotations omitted).                                  However,

the burden on the government to show that other investigative

techniques have failed or would fail is not great.                                Smith, 31

F.3d at 1297.             The government need not show that other methods

have    been     wholly      unsuccessful        or    that   it     has    exhausted      all

possible alternatives.               Id. at 1298.             Rather, the government

must        present       specific    factual         information          “sufficient      to

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establish that it has encountered difficulties in penetrating

the criminal enterprise or in gathering evidence to the point

where wiretapping becomes reasonable.”                          Id. at 1298 (quoting

United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989))

(internal quotations omitted).

               We have reviewed the transcript of the hearing on this

issue and the evidence submitted, and conclude that the district

court    did    not     abuse   its    discretion         in    determining         that    the

government met this burden.                  See United States v. Wilson, 484

F.3d 267, 280 (4th Cir. 2007).                    We further find no error in the

district court’s order upholding the wiretap authorization and

admitting the evidence.           Id. (providing standard of review).

               Cunningham       next        argues       that     the        evidence       was

insufficient to support the jury’s verdict.                           “The verdict of a

jury must be sustained if there is substantial evidence, taking

the   view     most     favorable      to    the    Government,         to    support      it.”

Glasser v. United States, 315 U.S. 60, 80 (1942).                              A defendant

challenging       the    sufficiency         of    the    evidence          faces   a   heavy

burden.      United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997).       Furthermore,       “[t]he       jury,       not    the    reviewing        court,

weighs    the     credibility         of     the     evidence         and    resolves       any

conflicts in the evidence presented.”                     Beidler, 110 F.3d at 1067

(internal quotation marks and citation omitted).                             “Reversal for

insufficient evidence is reserved for the rare case where the

                                              5
prosecution’s failure is clear.”               Id. (internal quotation marks

and citation omitted); United States v. Moye, 454 F.3d 390, 394

(4th Cir. 2006) (en banc) (internal quotation marks omitted).

            After        reviewing      the    evidence       presented        during

Cunningham’s trial, we conclude that the evidence, viewed in the

light   most      favorable      to    the     government,     established       the

existence    of     an    agreement     between   two    or   more   persons      to

distribute and possess cocaine and cocaine base with the intent

to distribute, that Cunningham knew of the conspiracy and that

he knowingly and voluntarily became a part of the conspiracy.

See United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir.

2008); United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996)

(en banc).

            Additionally,       the    evidence    was    sufficient      to    prove

that Cunningham knowingly and intentionally used the telephone

to facilitate or to commit a drug trafficking crime.                   See United

States v. Pratt, 351 F.3d 131, 138 (4th Cir. 2003) (finding

evidence sufficient where phone call was used to set the final

time for drug transaction); United States v. Lozano, 839 F.2d

1020, 1023 (4th Cir. 1988) (upholding conviction when phone call

was used to announce defendant’s arrival in Virginia to handle

problem related to cocaine).

            In    his     pro   se    brief,   Cunningham     argues    that     the

district court erred by denying his request for a jury charge on

                                          6
multiple conspiracies.         “A multiple conspiracy instruction is

not required unless the proof at trial demonstrates that [the

appellant was] involved only in separate conspiracies unrelated

to the overall conspiracy charged in the indictment.”                     United

States   v.    Squillacote,    221   F.3d    542,    574   (4th    Cir.   2000)

(internal     quotation    marks   and   citation    omitted)     (emphasis   in

original).     The evidence showed that there existed one overall

conspiracy and that Cunningham was a member of that conspiracy.

The conspiracy had a single general business venture for the

purpose of selling cocaine and crack for profit in roughly the

same geographic area, the key members of the conspiracy were the

same, and the members used common methods for arranging for drug

transactions.

             Moreover, because it is not necessary that all persons

in a conspiracy know all the other actors and the scope of the

conspiracy, the district court properly found that the evidence

did not require a multiple conspiracies charge.             Id.; Pratt, 351

F.3d at 140 (trial evidence is sufficient to establish a single

conspiracy where the conspirators are shown to share the same

objectives, the same methods, the same geographic spread, and

the   same     results).       Accordingly,     we    affirm      Cunningham’s

convictions.

             We have reviewed Cunningham’s sentence and find that

it was properly calculated and that the sentence imposed was

                                         7
reasonable.         See Gall v. United States, 552 U.S. 38, 51 (2007);

see United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).

The district court properly calculated the advisory Guidelines

range,      appropriately       treated      the     Sentencing      Guidelines         as

advisory,     considered      the    applicable      Guidelines      range      and    the

arguments      of    counsel,      and     weighed    the    relevant      18    U.S.C.

§ 3553(a) (2006) factors.

              While the district court stated its consideration of

the § 3553(a) factors, it did not expound upon them or in any

way   state    how     each   of     the   factors     applied      specifically        in

Cunningham’s case.            However, under the circumstances of this

case, the explanation is sufficient and we conclude that the

sentence is procedurally reasonable.                 See Rita v. United States,

551 U.S. 338, 359 (2007) (“Where a matter is as conceptually

simple as in the case at hand and the record makes clear that

the sentencing judge considered the evidence and arguments, we

do    not   believe     the    law    requires       the    judge   to     write      more

extensively.”).         We conclude that the district court did not

abuse its discretion in imposing the chosen sentence, which was

the   240-month       mandatory      minimum      sentence    for    the    counts      of

conviction.         See Gall, 552 U.S. at 41; United States v. Allen,

491    F.3d    178,     193     (4th       Cir.    2007)     (applying       appellate

presumption of reasonableness to within-Guidelines sentence).



                                            8
            In     his     pro   se    brief,         Cunningham       asserts    that      his

attorney failed to challenge the drug quantity, advised him to

stipulate     to     the     quantity        of       cocaine     and     to     his    prior

conviction,      and      advised      him       to     waive     the     attorney-client

privilege and allow his former attorney to testify during the

breach of the proffer agreement hearing.                        Claims of ineffective

assistance of counsel generally are not cognizable on direct

appeal    unless     the     record     conclusively            establishes       counsel’s

“objectively unreasonable performance” and resulting prejudice.

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).

Instead, ineffective assistance claims should be raised, if at

all, in a motion brought pursuant to 28 U.S.C.A. § 2255 (West

Supp. 2011), in order to promote sufficient development of the

record.     United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th

Cir. 2010).        Because the record before us does not conclusively

establish     that       Cunningham’s        attorneys          were    ineffective,         we

decline to consider these claims on direct appeal.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     This court requires that counsel inform Cunningham, in

writing,    of     the   right    to    petition        the     Supreme    Court       of   the

United States for further review.                     If Cunningham requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

                                             9
leave to withdraw from representation.          Counsel’s motion must

state that a copy thereof was served on Cunningham.            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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