United States v. Murphy ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4215
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANNIE MURPHY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-474)
Submitted: January 9, 2006 Decided: March 3, 2006
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew R. Mackenzie, BARRETT MACKENZIE, L.L.C., Greenville, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dannie Murphy appeals his conviction and sentence imposed
after he pled guilty to conspiracy to distribute and possess with
intent to distribute 50 grams or more of cocaine base or crack
cocaine and 5 kilograms of cocaine, in violation of 18 U.S.C.
§§ 841(b)(1)(A), 846 (2000). On appeal, Murphy’s counsel filed a
brief under Anders v. California, 386 U.S. 738, 744 (1967), stating
there were no meritorious issues, but raising the issue of whether
the district court erred in using a prior conviction to increase
the mandatory statutory minimum sentence under § 841(b)(1)(A).
Murphy filed a pro se supplemental brief alleging ineffective
assistance of counsel. We affirm.
The prior predicate conviction for distribution of crack
cocaine, although occurring during the course of an 18-year long
conspiracy, was properly used to enhance the mandatory statutory
minimum sentence. United States v. Martino, 294 F.3d 346, 350-51
(2d Cir. 2002); United States v. Hughes, 924 F.2d 1354, 1361-62
(6th Cir. 1991).
Murphy contends counsel was ineffective on a number of
counts. The proper proceeding in which to pursue an ineffective
assistance of counsel claim is not a direct appeal but a collateral
proceeding under 18 U.S.C. § 2255 (2000). United States v.
DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). We will entertain such
a claim on direct appeal only if it “conclusively appears” from the
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record that the defendant’s counsel was ineffective. United
States v. Russell, 221 F.3d 615, 619 n.5 (4th Cir. 2000). Because
the record is incomplete in this regard, the claim will not be
reviewed.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Murphy’s convictions and sentence. This court requires
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 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 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
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