United States v. Lopez

Filed: November 29, 2001
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 00-4737(L)
(CR-96-739)
United States of America,
Plaintiff - Appellee,
versus
Carlos Lopez,
Defendant - Appellant.
O R D E R
The court amends its opinion filed November 26, 2001, as
follows:
On the cover sheet, section 3 -- case number 00-4029 is
corrected to read 01-4029.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4737
CARLOS LOPEZ,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4029
CARLOS LOPEZ,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-96-739)
Submitted: October 31, 2001
Decided: November 26, 2001
Before WIDENER, WILKINS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Carlos Lopez, Appellant Pro Se. David Calhoun Stephens, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Carlos Lopez appeals from the amended criminal judgment order
after this court vacated his sentence and remanded for re-sentencing.
Lopez was convicted of distributing marijuana and conspiracy to pos-
sess with intent to distribute marijuana. Lopez proceeds pro se on
appeal. Lopez has also filed an appeal from the district court's order
denying his request for transcripts and several filings in the case.
Finding no error, we affirm the amended judgment and order.
Lopez argues that his conviction should be vacated because the
indictment was defective as it did not charge a specific quantity of
marijuana, in accordance with Apprendi v. New Jersey, 530 U.S. 466(2000). Assuming, without deciding, that Lopez was able to utilize
the intervening change in law to raise an issue outside the scope of
remand, see United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993), his
claim fails. Because a conviction under 21 U.S.C.A. § 841(b)(1)(C)
(West 1999), which carries a sentence up to 20 years for a cocaine or
crack offense, may be based on any identifiable amount of cocaine or
crack, this court found that an indictment charging any amount of
cocaine would not be categorically defective under Apprendi. United
States v. Promise, 255 F.3d 150, 160 (4th Cir. 2001), petition for cert.
filed, Sept. 20, 2001 (No. 01-6398). And where the jury is similarly
charged, i.e., that it must simply find that the defendant trafficked in
cocaine, there is no error in the defendant's conviction under
Apprendi. Id. Lopez's situation is the same with respect to marijuana
and a sentence imposed under § 841(b)(1)(D). Accordingly, because
both the indictment and the jury instructions charged Lopez with dis-
tribution of and conspiring to possess with intent to distribute mari-
juana, we conclude that Apprendi does not invalidate his conviction.
Lopez also argues that his sentence is invalid under Apprendi,
because the drug amount was not charged in the indictment and
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proven beyond a reasonable doubt. We find Lopez's reliance on
Apprendi misplaced. Lopez's sentence of five years does not exceed
the five year maximum in § 841(b)(1)(D) for an "identifiable but
unspecified quantity" of marijuana. See Promise, 255 F.3d at 156;
United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001), cert. denied
sub nom., Phifer v. United States, 70 U.S.L.W. 3244 (U.S. Oct. 1,
2001) (No. 01-5838).
Lopez's last claim regarding re-sentencing is that his counsel was
ineffective by failing to challenge the validity of the indictment.
Claims of ineffective assistance are not cognizable on direct appeal
unless counsel's ineffectiveness plainly appears on the face of the
record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991). We have reviewed the record for error and have found no clear
ineffective assistance by trial counsel based on this claim.
Lastly, Lopez noted an appeal of the district court's December 12,
2000, order denying his motion for transcripts and copies of several
of his own filings. Lopez did not pursue this claim on appeal, how-
ever. The order is not specified in the informal brief and the brief does
not make any argument pertaining to it. Lopez received the transcripts
and documents he requested from the district court by an order of this
court after he was granted permission to proceed pro se on appeal.
Because Lopez did not pursue the argument in his informal brief, it
is deemed abandoned. See 4th Cir. R. 34(b) (this court limits its
review on appeal to the issues raised in appellant's informal brief).
We therefore affirm the amended criminal judgment and order
denying transcripts and copies. 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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