United States v. Greene , 286 F. App'x 22 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL ROBERT GREENE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:04-cr-00117-LHT-10)
Submitted: July 31, 2008 Decided: August 7, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte, North
Carolina, for Appellant. Gretchen C.F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Robert Greene appeals his conviction and sentence
of 121 months’ imprisonment and four years’ supervised release,
following his guilty plea to conspiracy to manufacture and to
possess with intent to distribute methamphetamine, in violation of
21 U.S.C. §§ 841, 846 (2000). On appeal, Greene claims that, but
for the ineffective assistance of counsel in failing to object to
the application of enhancements to his sentence, his sentence would
have be lower.1
As Greene acknowledges, his claim of ineffective
assistance of counsel must be brought in a collateral proceeding
under 28 U.S.C. § 2255 (2000), unless it conclusively appears from
the face of the record that his counsel was ineffective. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
Greene can make no such showing in this case. Evidence
supports the district court’s enhancements pursuant to USSG
§ 2D1.1(b)(1) (2004), based on Greene’s possession of a firearm
during the course of the conspiracy, and to USSG § 2D1.1(b)(6)(B),
based on his having created a substantial risk of harm to the
environment as a result of his methamphetamine manufacturing
1
Greene does not otherwise challenge his conviction, or the
knowing and voluntary nature of his plea, nor does he challenge his
admitted responsibility for an amount of methamphetamine of more
than 35 grams but less than 50 grams, placing him at an attendant
base offense level of 30, pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 2D1.1(c)(5) (2004).
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conduct. Thus, Greene cannot prove prejudice in his attorney’s
failure to object to the enhancements,2 based on the face of the
record, such that we would entertain Greene’s claim of ineffective
assistance on direct appeal. Accordingly, we affirm Greene’s
conviction and sentence. 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
2
See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
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