UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4242

WENDELL LEE CHEESE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-97-155)

Submitted: January 12, 1999

Decided: January 27, 1999

Before MURNAGHAN, WILKINS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S. Mason Preston, PRESTON & WEESE, L.C., Lewisburg, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney, John
L. File, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Wendell Lee Cheese pled guilty to one count of conspiracy to dis-
tribute and possess with intent to distribute cocaine base in violation
of 21 U.S.C. § 846 (1994). He was sentenced to 210 months' impris-
onment. He now appeals his sentence claiming that he withdrew from
the conspiracy and therefore should not have been held accountable
for the total quantity of drugs involved. He further maintains that the
court erred in refusing to grant a downward departure for substantial
assistance and that the court improperly sentenced him to a longer
term of imprisonment than a co-defendant. Finding no reversible
error, we affirm.

Cheese was involved in a conspiracy to sell cocaine base in Beck-
ley, West Virginia. Cheese was initially primarily responsible for dis-
tributing the cocaine base in Beckley brought from New York by
other co-conspirators. The evidence disclosed that these co-
conspirators made approximately ten to twelve of these trips, each trip
involving between thirty to one hundred ten grams of cocaine base.
On at least one occasion, Cheese served as courier. Some weeks into
the conspiracy, Cheese's girlfriend replaced Cheese as seller, due to
the co-conspirators' fear of Cheese's unreliability as a drug user.
Cheese, however, occasionally assisted his girlfriend in selling the
drugs. The key conspirators were convicted of drug-related charges.

Cheese pled guilty to conspiring to distribute and possess with
intent to distribute cocaine base. In the presentence report, the proba-
tion officer attributed to the conspirators between five hundred grams
and one and a half kilograms of cocaine base. At sentencing, Cheese
did not dispute this amount. He merely objected to the probation offi-
cer's finding that he was not entitled to a reduction in his sentence for
having a minor role in the offense. The court ultimately granted him
a two-level reduction in his sentence for his minor role in the conspir-
acy, and sentenced him to 210 months' imprisonment.

Cheese first asserts that because he withdrew from the conspiracy,
the court erred in finding that the quantity of drugs attributed to the
conspiracy was foreseeable to him. Because Cheese failed to object

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to this quantity at anytime, we may only review this alleged error if
it was a plain error that affected his substantial rights. See Fed. R.
Crim. P. 52(b); see also United States v. Olano , 507 U.S. 725, 731-32
(1993).

For sentencing purposes, quantities attributable to persons con-
victed of conspiracy to distribute illegal drugs are determined by
examining "the quantity of [drugs] reasonably foreseeable to each
coconspirator within the scope of his agreement." United States v.
Irvin, 2 F.3d 72, 78 (4th Cir. 1993). The government bears the burden
of establishing by a preponderance of the evidence the quantity of
drugs attributable to a defendant. See United States v. Goff, 907 F.2d
1441, 1444 (4th Cir. 1990). We review the sentencing court's factual
determination of the amount of controlled substances attributable to
a defendant pursuant to United States Sentencing Guidelines Manual
§ 1B1.3 (1997), on a clearly erroneous standard of review, with due
deference to the court's application of the guidelines to the facts. See
United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994).

We find sufficient support in the record for the district court's find-
ing that the quantity of drugs attributed to the conspiracy was reason-
ably foreseeable to Cheese. He played an active role in the conspiracy
and continued to play a part even after his involvement in the distribu-
tion of the drugs was reduced. Furthermore, Cheese failed to meet his
burden of showing that he withdrew from the conspiracy. See United
States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986). We therefore find
no plain error in the court's determination that the total amount of
drugs in the conspiracy was reasonably foreseeable to Cheese.

Cheese next posits that he was entitled to a reduction in his sen-
tence because of his alleged substantial assistance. Upon motion by
the Government stating that the defendant has provided substantial
assistance in a criminal investigation, the sentencing court may depart
downward from the guidelines. See USSG § 5K1.1. A defendant does
not, however, have any right to a substantial assistance departure, see
United States v. Chavez, 902 F.2d 259, 267 (4th Cir. 1990), and in the
absence of a contractual obligation or unconstitutional motives, the
Government's refusal to move for one is not subject to appellate
review. See United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994).
The Government did not move for such a motion and we find neither

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of the above-mentioned circumstances present here. We therefore dis-
miss this claim.

Finally, Cheese challenges the disparity in the sentence imposed
upon him and that imposed upon his girlfriend, a co-conspirator. The
sentencing court need not consider the sentence of a co-defendant
when imposing sentence. See United States v. Foutz, 865 F.2d 617,
622 (4th Cir. 1989). Further, even comparing the sentences of Cheese
and his girlfriend, the differences in the sentences are clearly sup-
ported by the record given the differences in cooperation, acceptance
of responsibility, and convictions on different charges. To the extent
that Cheese challenges the district court's refusal to depart downward
based on his co-defendant's sentence, disparity of sentences among
co-defendants is not a ground for downward departure absent pro-
secutorial misconduct, which is not alleged here. See United States v.
Fonville, 5 F.3d 781, 783-84 (4th Cir. 1993). We find that the district
court therefore did not err in imposing Cheese's sentence.

With respect to Cheese's various claims of ineffective assistance of
counsel, such claims should be raised by motion under 28 U.S.C.
§ 2255 (West 1994 & Supp. 1998), in the district court and not on
direct appeal unless it "conclusively appears" from the record that
defense counsel did not provide effective representation. See United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). The record
does not conclusively show that Cheese's attorney was ineffective.

Accordingly, we affirm Cheese's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court, and oral argument would not
aid the decisional process.

AFFIRMED

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