United States v. Turner ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4075
GENE TURNER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-99-52)
Submitted: January 25, 2003
Decided: March 17, 2003
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Andrew B. Banzhoff, Asheville, North Carolina, for Appellant. Keith
Michael Cave, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. TURNER
OPINION
PER CURIAM:
Gene Turner appeals his conviction and sentence imposed pursuant
to a guilty plea to conspiracy to possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841, 846 (2000).
Counsel has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967). Counsel states there are no meritorious issues for
appeal, but contends on Turner’s behalf that Turner received ineffec-
tive assistance of counsel. In addition, Turner has filed a pro se sup-
plemental brief, alleging the district court was required to file a
second detention order after vacating his original sentence. Turner
also contends his sentence violates Apprendi v. New Jersey, 530 U.S.
466 (2000), and that 21 U.S.C. § 841 (2000) is unconstitutional in
light of Apprendi. Turner has also filed a letter with this court in
which he raises numerous additional issues. Finding no reversible
error, we affirm.
Turner first contends his trial counsel was ineffective at sentencing.
Claims of ineffective assistance of counsel are generally not cogniza-
ble on direct appeal. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). To allow for adequate development of the record, claims
of ineffective assistance of counsel must ordinarily be pursued in a 28
U.S.C. § 2255 (2000) motion. United States v. Hoyle, 33 F.3d 415,
418 (4th Cir. 1994). An exception to this general rule obtains when
the record conclusively establishes ineffective assistance of counsel.
King, 119 F.3d at 295. A review of the record does not conclusively
establish ineffective assistance of counsel, and Turner’s ineffective
assistance claims are therefore not cognizable in this direct appeal.
In his pro se supplemental brief, Turner first contends the district
court was required to enter a new detention order under 18 U.S.C.
§§ 3141, 3143 (2000) pending re-sentencing after vacating his origi-
nal sentence. We find this claim to be without merit.
Turner next contends his 300-month sentence violates Apprendi
because a specific drug quantity was not charged in his indictment.
Because Turner had previously been convicted of a drug trafficking
crime, he was eligible for a maximum sentence of thirty years. See 21
UNITED STATES v. TURNER 3
U.S.C. § 841(c). His sentence is well below the statutory maximum;
thus, there is no Apprendi error.
Turner further contends 21 U.S.C. § 841 is unconstitutional in the
wake of Apprendi. This claim is foreclosed by this court’s decision
in United States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2001).
We have reviewed Turner’s supplemental letter and find no merit
in the claims raised therein.
Pursuant to Anders, we have reviewed the record and find no error.
Accordingly, we affirm Turner’s conviction and sentence. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests a petition be filed, but counsel believes such a petition
would be frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED