United States v. McClelland ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4474
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY D. MCCLELLAND, aka Ant,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00009-13)
Submitted: February 20, 2008 Decided: May 5, 2008
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James O. Rice, Jr., EVANS & RICE, PLLC, Asheville, North Carolina,
for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony D. McClelland pled guilty to conspiracy to
possess with intent to distribute more than fifty grams of crack
cocaine, more than five kilograms of cocaine, and more than 1000
kilograms of marijuana, in violation of 21 U.S.C. § 846 (2000).
The district court sentenced McClelland as a career offender to a
262-month sentence, the bottom of the advisory sentencing guideline
range. McClelland’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), suggesting that
McClelland’s sentence violates the Sixth Amendment, that the
district court erred by sentencing McClelland as a career offender,
and that counsel provided ineffective assistance at sentencing.
Appellate counsel states, however, that, in his view, there are no
meritorious issues for appeal. McClelland was informed of his
right to file a pro se supplemental brief but has not done so. We
affirm.
Counsel asserts that the district court violated
McClelland’s Sixth Amendment rights at sentencing by relying on
facts not admitted by McClelland or found by a jury and that the
court erred by sentencing McClelland as a career offender based
upon the statutory maximum sentence for crack cocaine.
McClelland’s reliance on United States v. Rhynes, 196 F.3d 207 (4th
Cir. 1999), vacated in part on other grounds, 218 F.3d 310 (4th
Cir. 2000) (en banc), is misplaced. Unlike Rhynes, McClelland pled
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guilty to a conspiracy involving more than fifty grams of crack,
more than five kilograms of cocaine, and more than 1000 kilograms
of marijuana, each of which carries a statutory maximum sentence of
life imprisonment, and stipulated to the drug amounts in the
presentence report. See 21 U.S.C. § 841(b)(1)(A). Thus, the
district court did not err in using the statutory maximum sentence
for crack cocaine in establishing McClelland’s base offense level
under the career offender guideline and did not violate his Sixth
Amendment rights.
Finally, McClelland asserts that sentencing counsel
provided ineffective assistance by failing to object to the type
and amount of drugs referenced in the presentence report. This
court, however, “may address [claims of ineffective assistance] on
direct appeal only if the lawyer’s ineffectiveness conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). We find that McClelland has failed to
meet this high standard and, therefore, decline to review this
claim on direct appeal.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm the district court’s judgment. 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
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counsel believes that 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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