UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4633
HARVEY LEE MOXLEY, a/k/a Sandy,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-98-68-V)
Submitted: February 16, 2001
Decided: March 15, 2001
Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
R. Deke Falls, LAW OFFICE OF HAROLD J. BENDER, Charlotte,
North Carolina, for Appellant. Robert Jack Higdon, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
2 UNITED STATES v. MOXLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Harvey Lee Moxley appeals from his conviction, pursuant to his
plea agreement, of conspiracy to distribute powder and crack cocaine
in violation of 21 U.S.C. § 846 (1994); Moxley received a sentence
of 240 months in prison, five years of supervised release, and a $100
special assessment. Moxley’s attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), asserting ineffective
assistance of counsel claims, but concluding that the claims lack
merit. Although Moxley was notified of his right to file a pro se sup-
plemental brief, he did not do so within the designated time limit. We
have reviewed the claims asserted by counsel and conclude they lack
merit. Because the record on appeal does not conclusively demon-
strate that Moxley received ineffective assistance of counsel, any
claim of ineffective assistance of counsel should be raised in a motion
filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2000), rather than
on direct appeal. We therefore affirm Moxley’s conviction and sen-
tence.
After the briefing period expired, Moxley filed a motion to file a
supplemental brief concerning the impact of Apprendi v. New Jersey,
530 U.S. 466 (2000), on his appeal. Because Moxley could have
asserted this claim before the briefing period expired and because we
conclude that Apprendi does not affect his sentence in any case, we
deny his motion. We note that though drug quantity was not submit-
ted to a jury, Moxley stipulated that 1.5 kilograms of cocaine base
was attributable to him. Because his twenty-year sentence did not
exceed the applicable statutory maximum, see 21 U.S.C.
§ 841(b)(1)(A) (1994), we find no error. See United States v. Kinter,
235 F.3d 192, 199 (4th Cir. 2000). Neither was there any error under
Apprendi in the court’s imposition of a five-year term of supervised
release. See United States v. Pratt, ___ F.3d ___, 2001 WL 101457,
at *6-*7 (4th Cir. Feb. 7, 2001) (No. 99-4424).
UNITED STATES v. MOXLEY 3
Pursuant to Anders, we have reviewed the record, including tran-
scripts of Moxley’s Fed. R. Crim. P. 11 hearing and his sentencing
hearing, for potential error and have found none. Therefore, we affirm
Johnson’s conviction and sentence. This court requires counsel to
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 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