United States v. McCoy ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4860
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTWAINE LAMAR MCCOY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:03-cr-00064)
Submitted: April 18, 2007 Decided: May 15, 2007
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Antwaine L. McCoy pled guilty to one count of possession
with intent to distribute cocaine and cocaine base, in violation of
21 U.S.C. § 841 (2000), and one count of possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was
sentenced to 262 months’ imprisonment. On appeal, McCoy’s counsel
filed a brief in accordance with Anders v. California, 386 U.S. 738(1967), asserting there are no meritorious issues for appeal, but
questioning whether McCoy’s trial counsel was ineffective in
failing to object to McCoy’s armed career criminal and career
offender classifications because his prior convictions were
unconstitutional double jeopardy. Counsel argues McCoy’s prior
convictions amounted to double jeopardy because McCoy had already
been penalized when North Carolina assessed a controlled substance
tax against him for the drugs involved. McCoy has filed a pro se
supplemental brief reasserting the issue raised by counsel. After
a thorough review of the record, we affirm the conviction and
sentence.
An allegation of ineffective assistance of counsel should
not proceed on direct appeal unless it appears conclusively from
the record that counsel’s performance was ineffective. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We find
that it does not appear conclusively from the record that McCoy
received ineffective assistance of counsel. The documentation
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proffered by McCoy of North Carolina’s controlled substance tax
assessments against him does not pertain to the prior convictions
used to classify McCoy as an armed career criminal and career
offender. Thus, McCoy fails to establish his counsel was
ineffective for failing to object on those grounds, and his
ineffective assistance of counsel claim is not cognizable on direct
appeal.
As required by Anders, we have examined the entire record
and find no other meritorious issues for appeal. Therefore,
finding no error, we affirm the judgment of the district court.
This court requires that counsel inform her 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 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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