United States v. Love

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4452
VAN ALLEN LOVE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Joseph F. Anderson, Jr., Chief District Judge.
(CR-99-573)
Submitted: December 4, 2002
Decided: January 17, 2003
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Car-
olina, for Appellant. J. Strom Thurmond, Jr., United States Attorney,
Marshall L. Prince, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LOVE
OPINION
PER CURIAM:
Van Allen Love pleaded guilty to membership in a conspiracy to
possess with intent to distribute in excess of fifty grams of cocaine
base, in violation of 21 U.S.C. § 846 (2000). Love was sentenced to
323 months incarceration and 10 years of supervised release, under
21 U.S.C. §§ 841(b)(1)(A), 846 (2000). Love timely appealed. His
appeal, through counsel and pro se, raises several issues.
First, Love argues he was subjected to an involuntary waiver of
counsel when he was questioned directly by the sentencing court.
This claim is meritless. The record reveals Love was represented by
his counsel throughout his proceedings.
Second, Love argues his trial counsel was ineffective. The record
does not conclusively establish Love’s counsel was ineffective, and
consequently, Love’s claim cannot be raised on direct appeal, and
must be asserted under 28 U.S.C. § 2255 (2000). United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999), cert. denied, 528 U.S.
1096 (2000); United States v. King, 119 F.3d 290, 295 (4th Cir.
1997).
Third, Love challenges the validity of his indictment, and his 323
month sentence, and the constitutionality of 21 U.S.C. § 841 (2000),
under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We review
these claims for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993); United States v. Dinnall, 269 F.
3d 418, 427 (4th Cir. 2001). These claims are meritless. Love cannot
establish his indictment or sentence is flawed, or that 21 U.S.C. § 841(2000) is unconstitutional. United States v. Cotton, 122 S. Ct. 1781,
1785-86 (2002); United States v. Promise, 255 F.3d 150, 152 (4th Cir.
2001).
Fourth, Love argues he entered his guilty plea unknowingly and
that consequently, his guilty plea is invalid. We review this claim de
novo. United States v. Damon, 191 F.3d 561, 564 n.2 (4th Cir. 1999).
This claim is meritless. Love’s statements at the plea hearing reveal
UNITED STATES v. LOVE 3
he entered into his guilty plea knowingly and voluntarily. United
States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991).
Fifth, Love relies on 21 U.S.C. § 903 (2000) to assert he was not
subject to federal jurisdiction for drug activity proscribed under state
law, and on 21 U.S.C. § 851 (2000) to assert the Government erred
by failing to file an information as a prerequisite to sentencing him
as a career offender. Love has waived these claims by failing to raise
them in district court. Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993). Additionally, 21 U.S.C. § 903 does not deprive the federal
government from criminalizing drug crimes proscribed by states, and
Love’s claim is therefore meritless. 21 U.S.C. § 903 (2000). Further-
more, as Love’s sentence was not enhanced under 21 U.S.C. § 841(b)
based on his prior convictions, his challenge to his sentence under 21
U.S.C. § 851 is meritless. 21 U.S.C. § 851 (2000); United States v.
Foster, 68 F.3d 86, 89 (4th Cir. 1995).
Accordingly, we grant Love’s pro se motions to file supplemental
informal briefs, and we affirm Love’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not significantly aid the decisional process.
AFFIRMED