United States v. Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4751
RODNEY DEWAYNE JONES,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-01-239)
Submitted: May 31, 2002
Decided: July 15, 2002
Before MOTZ and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
William H. Ehlies, II, Greenville, South Carolina, for Appellant. Eliz-
abeth Jean Howard, OFFICE OF THE UNITED STATES ATTOR-
NEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JONES
OPINION
PER CURIAM:
Rodney Dewayne Jones pled guilty to ten counts of armed bank
robbery, 18 U.S.C.A. § 2113(a) (West 2000), and two counts of carry-
ing and using a firearm during a crime of violence, 18 U.S.C.A.
§ 924(c)(1) (West 2000). He was sentenced to a total of 392 months
imprisonment and five years of supervised release. Jones noted a
timely appeal and his counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), addressing whether the district court
complied with Fed. R. Crim. P. 11 in accepting Jones’ guilty plea and
whether the district court erred in imposing a 392-month prison sen-
tence, but stating that in his opinion there are no meritorious issues
for appeal. Jones has filed a pro se supplemental brief raising eight
claims. For the reasons that follow, we affirm.
Following a de novo review of the record, we find that the district
court complied with the mandates of Rule 11 in accepting Jones’
guilty plea. United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995)
(providing standard). Because the sentence imposed by the district
court is within the range recommended by the guidelines, and there
is no evidence that the district court based this sentence upon an ille-
gal reason, we are without jurisdiction to review it. United States v.
Porter, 909 F.2d 789, 794 (4th Cir. 1990).
In his supplemental pro se brief, Jones argues that the 84-month
sentence imposed on count 2 and the 204-month sentence imposed on
count 6 violate the Supreme Court’s holdings in Apprendi v. New Jer-
sey, 530 U.S. 466 (2000), and Castillo v. United States, 530 U.S. 120(2000) (holding that different types of firearms described in § 924(c)
are elements of the offense and not merely sentencing factors).
Because Jones failed to object at sentencing, review is for plain error
only. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725(1993).
As an initial matter, Apprendi was concerned only with facts that
increase the statutory maximum penalty and the relevant facts under
§ 924(c)(1) increase only the statutory minimum penalty. Jones
received less than the statutory maximum on each count.
UNITED STATES v. JONES 3
More importantly, the Supreme Court has recently held that, where
the indictment fails to include an element of the offense under the rea-
soning provided in Apprendi, but where proof of that element is
"overwhelming and uncontroverted," the error will not be recognized.
United States v. Cotton, ___ U.S. ___, 2002 WL 1008494 (U.S. May
20, 2002) (No. 01-687). Here, the evidence of Jones’ brandishing the
weapon is "overwhelming and uncontroverted" as stated in the gov-
ernment’s summary of the offense, to which he agreed. With respect
to the 204-month sentence he received on Count 6, Jones’ challenge
to the application of § 924(c)(1)(C)(ii) to a second § 924(c) count that
arises out of the same criminal proceedings as the first § 924(c) count
is foreclosed by the Supreme Court’s decision in Deal v. United
States, 508 U.S. 129, 132-34 (1993).
Jones also challenges the district court’s jurisdiction on the grounds
that the banks were organized and operated under state law only, that
the federal bank robbery statute exceeds Congress’ commerce clause
power, and, in any event, is preempted by the state robbery statute.
We find all of these claims meritless. First, Jones stipulated at the plea
hearing that the banks were federally insured. Second, similar chal-
lenges to Congress’ authority to enact § 2113 have failed. See United
States v. Wicks, 132 F.3d 383, 390 (7th Cir. 1997) (noting that any
argument which claims that § 2113 exceeds Congress’ powers under
the Commerce Clause would be untenable); United States v. Harris,
108 F.3d 1107, 1109 (9th Cir. 1997) (same).
Finally, Jones claims that his attorney was ineffective for failing to
raise all of these objections at trial or at sentencing. Claims of ineffec-
tive assistance of counsel generally are not cognizable on direct
appeal, except where the record conclusively shows ineffective assis-
tance. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Instead, to allow for adequate development of the record, a defendant
generally must bring his ineffective assistance claims in a motion
under 28 U.S.C.A. § 2255 (West Supp. 2001). Id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). Because the record here does
not conclusively establish ineffective assistance, these claims are not
cognizable on direct appeal.
In accordance with Anders, we have reviewed the entire record and
find no reversible error. We therefore affirm the judgment. We also
4 UNITED STATES v. JONES
deny Jones’ motion and supplements to place his appeal in abeyance
pending receipt of a transcript and to appoint new counsel. 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 the decisional process.
AFFIRMED