United States v. Stephens

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4703
STANLEY STEPHENS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-99-249)
Submitted: December 28, 2001
Decided: January 22, 2002
Before LUTTIG and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
William R. Williams, WILLCOX, BUYCK & WILLIAMS, P.A.,
Florence, South Carolina, for Appellant. Alfred William Walker
Bethea, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
2 UNITED STATES v. STEPHENS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Stanley Stephens appeals his conviction and 262 month sentence
entered upon his guilty plea to conspiracy to possession with intent
to distribute cocaine and cocaine base, in violation of 21 U.S.C.A.
§ 846 (West 1999 & Supp. 2001).
On appeal, Stephens’ counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and Stephens has filed
supplemental pro se briefs as well. First, Stephens and his counsel
argue that his conviction and sentence violate Apprendi v. New Jer-
sey, 530 U.S. 466 (2000). Stephens’ indictment failed to state a drug
quantity. We affirm Stephens’ conviction but vacate his sentence and
remand so that he may be sentenced under 21 U.S.C.A.
§ 841(b)(1)(C) (West 1999 & Supp. 2001). Apprendi v. New Jersey,
530 U.S. 466, 490 (2000); United States v. Dinnall, 269 F.3d 418, 423
(4th Cir. 2001); United States v. Promise, 255 F.3d 150, 152-57 (4th
Cir. 2001), petition for cert. filed, Sept. 20, 2001 (No. 01-6398).
Second, Stephens and his counsel argue the district court abused its
discretion in failing to grant Stephens’ motion to withdraw his guilty
plea. We disagree. Stephens has failed to establish that his plea collo-
quy was plagued by an error affecting his substantial rights. United
States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995); United States
v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992); United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991).
Third, in Stephens’ supplemental pro se briefs, he asserts he
received ineffective assistance of counsel in entering his guilty plea.
The record does not conclusively establish Stephens received ineffec-
tive assistance of counsel. Consequently, we deny this claim without
prejudice to Stephens’ ability to raise it in a 28 U.S.C.A. § 2255(West Supp. 2001) motion. United States v. King, 119 F.3d 290, 295
(4th Cir. 1997).
UNITED STATES v. STEPHENS 3
Accordingly, we affirm Stephens’ conviction but vacate and
remand for sentencing within the applicable statutory maximum. In
accordance with Anders, we have reviewed the entire record in this
case and find no other meritorious issues for appeal. 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 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.
AFFIRMED IN PART; VACATED
AND REMANDED IN PART