United States v. Burton ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-7625
WILLIE PERNELL BURTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-00-16-HO, CA-01-299-5-H)
Submitted: January 23, 2002
Decided: February 7, 2002
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Willie Pernell Burton, Appellant Pro Se. Rudolf A. Renfer, Jr., Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BURTON
OPINION
PER CURIAM:
Willie Pernell Burton seeks to appeal the district court’s order
denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.
2001). We have reviewed the record and the district court’s opinion
and find no reversible error.
As to Burton’s claim that the indictment was so defective as to ren-
der his guilty plea invalid, we find that the indictment adequately
stated the elements of the offense (prior to the Supreme Court’s hold-
ing in Apprendi v. New Jersey, 530 U.S. 466 (2001)), and Burton’s
co-conspirators did not need to be named in the indictment. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc); United
States v. American Waste Fibers Co., 809 F.2d 1044, 1046 (4th Cir.
1987). Further, as the district court correctly concluded, Burton’s
Apprendi challenges are not cognizable in the collateral review pro-
ceeding. United States v. Saunders, 247 F3d 139, 146-51 (4th Cir.),
cert. denied, ___ U.S. ___, 122 S. Ct. 573 (2001). Burton failed to
establish that counsel’s performance fell below an objective standard
of reasonableness. Strickland v. Washington, 466 U.S. 668, 688-91
(1984). Additionally, as the district court noted, the Government is
not required to file a notice pursuant to 21 U.S.C. § 851 (1994) where,
as here, any increase in sentence was due to the calculations under the
Sentencing Guidelines. United States v. Foster, 68 F.3d 86, 89 (4th
Cir. 1995). Finally, the district court did not err in declining to con-
duct an evidentiary hearing. United States v. Yearwood, 863 F.2d 6,
7 (4th Cir. 1988). Accordingly, we deny a certificate of appealability
and dismiss the appeal substantially on the reasoning of the district
court. See United States v. Burton, Nos. CR-00-16-HO; CA-01-299-5-
H (E.D.N.C. Aug. 7, 2001).
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.
DISMISSED