UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 95-5754
ARNULFO D. BENAVIDES, a/k/a
Arnold,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Robert G. Doumar, Senior District Judge.
(CR-92-67-NN)

Submitted: October 29, 1996

Decided: January 14, 1997

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard E. Slaney, WOLCOTT, RIVERS, WHEARY, BASNIGHT &
KELLY, P.C., Virginia Beach, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Harvey L. Bryant III, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Arnulfo D. Benavides pled guilty to conspiracy to distribute in
excess of 1000 kilograms of marijuana in violation of 21 U.S.C.A.
§§ 846, 853 (West Supp. 1996).1 He appeals, contending that the dis-
trict court's findings at sentencing were clearly erroneous, his guilty
plea was invalid and not supported by a factual basis, his counsel was
ineffective, and he was entitled to the preparation of a new presen-
tence report before he was resentenced. We grant Benavides' motion
to file a pro se supplemental brief. Finding no error, we affirm.

I.

Benavides first claims that he should be allowed to withdraw his
guilty plea because he understood that the government agreed to rec-
ommend limiting his term of incarceration to a maximum of ten years.
Because Benavides received a twenty-year sentence, he asserts that
his misunderstanding regarding the length of his sentence negates the
voluntariness of his plea.

Although Benavides seeks to withdraw his plea on appeal, he failed
to move to withdraw the plea under FED. R. CRIM. P. 32(d), in the dis-
trict court. Thus, Benavides' reliance on United States v. Puckett, 61
F.3d 1092, 1099 (4th Cir. 1995), is misplaced. Further, the record dis-
closes that Benavides' plea was entered voluntarily. During the FED.
R. CRIM. P. 11 colloquy, the court informed Benavides of the maxi-
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1 The indictment also charged Benavides' co-conspirators--David
Martin Hamrick, Joyce Ann Hopkins, Ronald E. Brandt, and Steven E.
Little--with conspiracy to distribute marijuana, among other offenses.
Hamrick and Brandt pled guilty. Little pled not guilty but was found
guilty after a bench trial. Hopkins pled not guilty and was acquitted by
a jury.

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mum penalty he could receive. Benavides did not object to the recom-
mended guideline range in the presentence report nor did he object at
sentencing to the recommended range of more than ten years. The
court also asked Benavides during the Rule 11 hearing whether his
plea was the result of any threats or promises.

Benavides next asserts that he cannot be guilty of participating in
a conspiracy with Ronald Walk because Walk was acting as a govern-
ment agent. Although Benavides correctly notes that one cannot con-
spire with a government agent, see United States v. Heater, 63 F.3d
311, 323 (4th Cir. 1995), cert. denied, ___ U.S. ___, 64 U.S.L.W.
3485 (U.S. Jan. 16, 1996) (No. 95-7090), the conspiracy involved par-
ticipants other than Walk. A factual basis therefore supported Bena-
vides' guilty plea.

II.

Benavides raises several sentencing errors. First, he claims that the
district court had no factual basis for attributing 18,194 pounds (or
8252 kilograms) of marijuana to him at sentencing. He specifically
challenges shipments of 6904 pounds and 10,000 pounds.

At sentencing, Walk testified that from a truckload of marijuana
Benavides delivered in North Carolina, he unloaded boxes numbered
one through twenty-five containing 1726 pounds of marijuana;
seventy-five other numbered boxes on the truck contained marijuana
and other unmarked boxes contained broccoli to conceal the drugs.
Based on Walk's testimony, the court determined that each of the
twenty-five boxes Walk unloaded contained 69.04 pounds of mari-
juana. Since there were an additional seventy-five boxes containing
marijuana presumably containing 69.04 pounds of marijuana each, the
court found that the North Carolina truck contained an additional
5178 pounds, for a total of 6904 pounds of marijuana. Although
Benavides contends that the court should not have considered Walk's
testimony, the district court is entitled to rely on any reliable and rele-
vant information, including hearsay. See Puckett , 61 F.3d at 1095 (cit-
ing United States v. Roberts, 881 F.2d 95, 105-06 (4th Cir. 1989)).
Because the district court's finding was supported by the evidence
presented at sentencing, we find that the court's estimate was not
clearly erroneous. See United States v. Fletcher , 74 F.3d 49, 55 (4th

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Cir.) (stating standard of review), cert. denied , ___ U.S. ___, 65
U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9447).

In addition to the 6904-pound shipment, Benavides conceded that
he was responsible for 1290 pounds of marijuana, for a total of 8194
pounds (or 3716.79 kilograms). Although Benavides also challenges
the 10,000-pound shipment, we need not consider whether the court's
findings with regard to that shipment were clearly erroneous because
the court appropriately attributed 8194 pounds (or 3716.79 kilograms)
to Benavides, for a base offense level of 34 under U.S.S.G. § 2D1.1.2

Benavides' claim that he should not have received a four-level
enhancement for his role in the offense under U.S.S.G. § 3B1.1(a)
also fails. Testimony at sentencing disclosed that Benavides oversaw
the entire conspiracy and that Walk and four other indicted co-
conspirators followed orders given by Benavides. The district court's
application of the four-level enhancement was not clearly erroneous.
See United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995)
(stating standard of review), cert. denied, ___ U.S. ___, 64 U.S.L.W.
3708 (U.S. Apr. 22, 1996) (No. 95-8395). Nor was the court's failure
to award Benavides a reduction for his acceptance of responsibility
under U.S.S.G. § 3E1.1 clearly erroneous. Benavides did not accu-
rately portray his participation in the conspiracy or the amount of pro-
ceeds he received from his illegal activities.

III.

Benavides contends that his trial counsel rendered ineffective assis-
tance by informing him that an agreement had been reached to limit
his prison term to ten years when no such agreement existed and by
failing to prepare him for testifying at sentencing. We decline to
address these claims because it does not conclusively appear from the
record that counsel was ineffective. Rather, these claims are more
appropriately raised in the district court in a motion under 28 U.S.C.
§ 2255 (1994), amended by Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. See United States
v. Ford, 88 F.3d 1350, 1363 (4th Cir. 1996).
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2 United States Sentencing Commission, Guidelines Manual (Nov.
1992).

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IV.

Benavides asserts that he was entitled to preparation of a new pre-
sentence report before the district reimposed judgment because his
conduct during incarceration is relevant and important. Because the
district court properly vacated and reentered the original judgment of
conviction under United States v. Peak, 992 F.2d 39, 42 (4th Cir.
1993), solely to afford Benavides an opportunity to appeal, we reject
this claim.

V.

Accordingly, we affirm Benavides' conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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