UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4224
EARL SYLVESTER TURNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-99-119)
Submitted: November 30, 2000
Decided: January 9, 2001
Before LUTTIG, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
David B. Hargett, MORRISSEY & HERSHNER, P.L.C., Richmond,
Virginia, for Appellant. Sara Elizabeth Flannery, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. TURNER
OPINION
PER CURIAM:
Earl Sylvester Turner was indicted in April 1999 for possession
with intent to distribute and distribution of cocaine base, in violation
of 21 U.S.C.A. § 841 (West 1999), 18 U.S.C. § 2 (1994). His first
trial ended in a mistrial due to a hung jury. Turner was tried again and
convicted on both counts with which he was charged, and the court
sentenced him to 175 months in prison. Turner timely appealed. Tur-
ner’s attorney has filed a brief in accordance with Anders v. Califor-
nia, 386 U.S. 738 (1967), raising two issues, but stating that, in his
view, there are no meritorious issues for appeal. Turner was advised
of his right to file a pro se supplemental brief and has done so, raising
two additional issues. Because we find that the assignments of error
lack merit and discern no other error in the record, we affirm.
Turner asserts that the district court erred by failing to provide him
with a transcript of the first trial that ended in a mistrial. However,
because Turner did not ask for a copy of the transcript until after the
close of evidence in his second trial, we find that he waived his right
to obtain a copy. United States v. Talbert, 706 F.2d 464, 470 (4th Cir.
1983). Moreover, because it does not conclusively appear from the
record that counsel was ineffective for failing to request a transcript
of the mistrial, we find that Turner’s ineffective assistance claim
should be raised in a 28 U.S.C.A. § 2255 (West Supp. 2000) motion
and not on direct appeal. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999), cert. denied, 120 S. Ct. 837 (2000).
Turner’s claim that the evidence was insufficient to support his
conviction also fails. The government introduced uncontroverted tes-
timony that a government informant purchased crack cocaine from
Turner. This testimony was corroborated by another witness and by
an audiotape of the transaction. We find that, viewing the evidence in
the light most favorable to the government, there is substantial evi-
dence to support Turner’s conviction. Glasser v. United States, 315
U.S. 60, 80 (1942).
Finally, Turner alleges for the first time on appeal that his sentence
was illegal under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
UNITED STATES v. TURNER 3
Turner was not sentenced above the statutory maximum provided in
21 U.S.C.A. § 841(b)(1)(C) (West 1999). Therefore, his conviction
does not implicate the concerns raised in Apprendi. United States v.
Angle, 230 F.3d 113, 2000 WL 1515159 (4th Cir. Oct. 12, 2000),
petition for reh’g filed (4th Cir. Oct. 26, 2000) (No. 96-4662).
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm the district court’s order. This court requires that counsel
inform his 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