UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 95-5547

JAMES AARON GLENN,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-95-8)

Submitted: March 21, 1996

Decided: May 2, 1996

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Clifton T. Barrett, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Pursuant to a plea agreement, James Aaron Glenn pled guilty to
one count of possession with intent to distribute 10.98 grams of
cocaine base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(B) (West
1981 & Supp. 1995), and one count of carrying and using a firearm
during a drug trafficking crime, in violation of 18 U.S.C.A.
§ 924(c)(1) (West Supp. 1995). The district court sentenced Glenn to
188 months in prison on the drug count and a consecutive sixty month
prison term on the firearms count. Glenn timely appealed. Glenn's
attorney has filed a brief in accordance with Anders v. California, 

(1967), asserting several claims, but concluding that there
were no meritorious grounds for appeal. Glenn filed a supplemental
pro se brief, reasserting the claims raised by counsel and raising addi-
tional grounds for appeal.

Glenn's claims concerning his sentence are meritless. First, he
asserts that the government should have filed a motion for a down-
ward departure in his sentence under U.S.S.G. § 5K1.1,* because he
provided information to the government prior to his guilty plea and
was a potential witness in an ongoing case. However, the plea agree-
ment did not require the government to make such a motion for a
downward departure and Glenn presented no evidence that the gov-
ernment's failure to make such a motion was based on an unconstitu-
tional motive such as race or religion or was not rationally related to
a legitimate government purpose. Wade v. United States, 

, 185-86 (1992); United States v. Lockhart , 

, 88 (4th
Cir. 1995).
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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Due to his prior drug and robbery convictions, Glenn was classified
as a career offender under U.S.S.G. § 4B1.1, resulting in an increased
offense level. He claims that this violated the prohibition against dou-
ble jeopardy. However, sentence enhancement under the career
offender provision is not a second punishment, but rather is a more
severe penalty for a subsequent crime which is considered an aggra-
vated crime because of the earlier offense. United States v. Garrett,

, 1009 (D.C. Cir. 1992); cf. Gryger v. Burke, 

, 732 (1948).

Next, Glenn claims that the increased penalty for cocaine base as
compared to cocaine under 21 U.S.C.A. § 841 is unconstitutional.
This Court has previously rejected this argument. United States v.
Fisher, 

, 99-100 (4th Cir.), cert. denied, ___ U.S. ___, 

(U.S. Oct. 10, 1995) (No. 95-5923).

In his supplemental brief, Glenn also raised claims of ineffective
assistance of counsel and prosecutorial misconduct. The ineffective
assistance claim must be raised in a 28 U.S.C. § 2255 (1988) motion
rather than on direct appeal because it does not appear conclusively
from the record that counsel was ineffective. United States v.
Williams, 

, 871 (4th Cir. 1992), cert. denied, 

(1993). Finally, Glenn failed to present any evidence to substanti-
ate his claim of prosecutorial misconduct.

In accordance with the requirements of Anders , supra, we have
examined the entire record in this case and find no other meritorious
issues for appeal. We therefore affirm the conviction and sentence.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
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

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