UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 98-4361

HENRY HUGH ROBINSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-93-5)

Submitted: March 23, 1999

Decided: April 6, 1999

Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed as modified by unpublished per curiam opinion.

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COUNSEL

Shanon S. Echols, Charlottesville, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assistant
United States Attorney, Charlottesville, 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Unpublished opinions are not binding precedent in this circuit.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:

Henry Hugh Robinson, Jr., pled guilty to one count of conspiracy
to possess with intent to distribute cocaine base in violation of 21
U.S.C. § 846 (1994), and one count of using or carrying a firearm
during and in relation to drug trafficking offenses in violation of 18
U.S.C.A. § 924(c) (West Supp. 1998). He was sentenced to a 420
month term of imprisonment. He appeals aspects of his plea and sen-
tence. Finding no reversible error, we affirm.

This case arrives on direct appeal after Robinson filed a partially
successful 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) motion.
Upon consideration of Robinson's § 2255 motion, the district court
found that it had not informed Robinson of his right to appeal follow-
ing entry of the original criminal conviction. To provide Robinson an
opportunity to appeal, the § 2255 court determined that Robinson's
original judgment and commitment order should be vacated and re-
entered. Summary judgment was granted for the Government on the
remainder of Robinson's claims.1 The district court thereupon vacated
and re-entered Robinson's judgment and commitment order. This
direct appeal followed.

The first of six arguments Robinson raises on appeal is that the re-
entry of the judgment and commitment order constituted resentencing
for which Robinson had a right to be present under Federal Rules of
Criminal Procedure 32 and 43. We disagree. The judgment and com-
mitment order were ministerially re-entered solely to effectuate Rob-
inson's right to appeal. We find that the district court did not err by
reimposing the original judgment without a hearing and without
requiring Robinson's presence.

Robinson next asserts that he should be allowed to withdraw his
plea to the § 924(c) charge in light of Bailey v. United States, 516
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1 Robinson's appeal from the district court's order granting partial sum-
mary judgment for the Government was dismissed by this court. See
United States v. Robinson, No. 98-6578 (4th Cir. Oct. 19, 1998) (unpub-
lished).

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U.S. 137 (1995). Robinson claims that the facts presented at the plea
hearing were insufficient to support a finding either that he used or
that he carried a firearm under § 924(c).

Section 924(c)(1) prohibits using or carrying a firearm during and
in relation to a drug trafficking crime. See 18 U.S.C.A. § 924(c). In
Bailey, the Supreme Court held that in order to obtain a conviction for
using a firearm in the commission of a drug crime, the government
must show active employment of the weapon. See Bailey, 516 U.S.
at 144. We affirm a district court's finding of a sufficient factual basis
for a guilty plea to a violation of § 924(c) unless the court abused its
discretion in holding that there was a factual basis for the defendant
to plead guilty to either using or carrying a firearm. See United States
v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).

Robinson's indictment and plea agreement both state that he "used
or carried" a firearm during and in relation to drug trafficking
offenses. (JA at 21, 67-68). At Robinson's plea hearing the prosecutor
stated that, to establish the § 924(c) count, the Government had to
demonstrate that Robinson "carried" a firearm to aid the drug traffick-
ing conspiracy. (JA at 37-38). To support the § 924(c) count, the Gov-
ernment offered the testimony of a police officer who stated that,
according to the reports of numerous confidential informants and
cooperating witnesses, Robinson was known to "carry" a firearm dur-
ing drug trafficking activities. (JA at 53-54).

We agree with Robinson that there was insufficient evidence to
support a finding that he "used" a firearm; however, we find that the
evidence was sufficient to support a plea of guilty to carrying a fire-
arm under § 924(c). See generally Muscarello v. United States, 118
S. Ct. 1911, 1914-16 (1998) (discussing meaning of "carry" in
§ 924(c)); see also Mitchell, 104 F.3d at 653 (finding that conveying
a firearm on one's person during a drug offense"is perhaps the clear-
est example of a violation of the `carry' prong"). We therefore con-
clude that the district court did not abuse its discretion in finding a
sufficient factual basis for Robinson's plea. See Mitchell, 104 F.3d at
652. We note that the judgment order employs the verb "use." We
instruct the district court to modify the judgment to "carry," to reflect
the evidence offered at the plea hearing.

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Third, Robinson contends that he was denied the effective assis-
tance of counsel at sentencing. Ineffective assistance claims are gen-
erally raised in a motion pursuant to 28 U.S.C.A.§ 2255 (West 1994
& Supp. 1998). See United States v. Hoyle, 33 F.3d 415, 418 (4th Cir.
1994). For a claim of ineffective assistance of counsel to be heard on
direct appeal it must "conclusively appear[ ] in the trial record itself
that the defendant was not provided with effective representation." Id.
(citations omitted). We do not find such conclusive evidence in the
record before us; we therefore decline to reach this issue.2

Robinson next argues that the district court erred in enhancing his
sentence based on Robinson's organizing or leadership role in the
conspiracy; Robinson maintains that there was no reliable information
before the court that would support the enhancement. We note that
Robinson failed to object to the enhancement at sentencing. We there-
fore review only for plain error. See United States v. Grubb, 11 F.3d
426, 440 (4th Cir. 1993).

At the plea hearing, the prosecutor questioned a police officer
about Robinson's role in the conspiracy. (JA at 51). The police officer
answered that, "[Robinson] was `the man.'[He] was probably the big-
gest dealer in Culpeper at that time." (JA at 51). The testimony of a
credible government witness is sufficient to support a role enhance-
ment. See United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir.
1995). Moreover, Robinson's presentence report, to which he failed
to object, recites that he distributed cocaine to"his individual street
sellers" and goes on to name five of them. We therefore find that the
district court did not plainly err in increasing Robinson's offense level
for playing an organizing or leadership role in the drug conspiracy.
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2 Similarly, to the extent that Robinson attempts to raise a Bailey-
associated ineffective assistance claim, i.e., that his attorney was ineffec-
tive for advising Robinson to plead guilty because there was an insuffi-
cient factual basis to support a guilty plea under§ 924(c), we decline to
reach the issue on the record before us. See Hoyle, 33 F.3d at 418.

We note that, should Robinson desire to file another§ 2255 motion,
he would not need authorization from this court because such a motion
would not be considered "second or successive" within the meaning of
§ 2255. See In re Goddard, ___ F.3d ___, 1999 WL 129274, *4 (4th Cir.
1999).

                    4
In claims five and six, Robinson asserts that he should have been
granted a downward departure in his sentence based on substantial
assistance because he was instrumental in getting two of his co-
conspirators to plead guilty. Robinson's plea agreement provided that
he would furnish information and testimony to the Government
regarding its ongoing criminal investigation, and in any proceedings
resulting from that investigation. The agreement further provided that,
if the United States Attorney deemed Robinson's cooperation to be
substantial, the Government might move for a sentence reduction
under 18 U.S.C. § 3553(e) (1994) and U.S. Sentencing Guidelines
Manual § 5K1.1 (1993). The Government did not move for a sentence
reduction based on substantial assistance, and the district court denied
Robinson's request for the court to effect such a reduction on its own.

Robinson argues that the Government breached the plea agreement
by not moving for a departure. He relies on this court's decision in
United States v. Conner, 930 F.2d 1073 (4th Cir. 1991). In Conner we
held that, if the prosecution promises in a plea agreement to make a
§ 5K1.1 motion in return for substantial assistance, such a promise is
enforceable. See id. at 1075-76. However, the plea agreement in this
instance differs in critical ways from the plea agreement in Conner.
Robinson's plea agreement does not contain binding language.
Indeed, the instant plea agreement states that,"if the defendant ren-
ders complete and truthful cooperation and testimony. . ., the United
States may, but is not required to, make a motion of substantial assis-
tance." (JA at 70). Robinson's agreement further provides that the
decision whether Robinson's assistance is deemed substantial "shall
be in the sole discretion of the United States Attorney." (JA at 70).
In contrast to the Conner agreement, Robinson's plea agreement did
not give rise to an enforceable promise. Indeed, the Government
explicitly reserved discretion rather than promise anything. See
United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994).3 We there-
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3 Robinson also argues that because the Government conceded, in a
wholly unrelated case, that a defendant provided substantial assistance
when he was available and willing to testify against codefendants, it was
clearly erroneous for Robinson's sentencing court not to have found that
Robinson provided substantial assistance in this instance. See United
States v. David, 58 F.3d 113, 114 (4th Cir. 1995). The Government in
this case did not concede that Robinson provided substantial assistance,
nor was the district court bound by the concession the Government made
in David.

                    5
fore find that the Government did not breach the agreement by failing
to move for a departure.

Robinson maintains that the Government also breached the plea
agreement by not informing the district court that his cooperation
resulted in two of his co-conspirators pleading guilty. While it is true
that the prosecutor did not offer the district court the information that
Robinson contributed to the decision of two co-conspirators to plead
guilty, we find any such error harmless as Robinson provided the dis-
trict court with the information, which was confirmed by the prosecu-
tor. (JA at 119-21).

Finally, Robinson alleges that the district court erred when it criti-
cized the Conner decision. However, the district court expressly
informed Robinson that the court's opinion of Conner had nothing to
do with Robinson's case, and the court proceeded to hear Robinson's
argument for a departure, in substantial compliance with Conner. (JA
at 118-23). We find no error in the district court's conduct.

Accordingly, we affirm the district court's decision on all grounds.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED AS MODIFIED

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