UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4238
THOMAS J. MASON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Margaret B. Seymour, District Judge.
(CR-01-655)
Submitted: October 31, 2003
Decided: December 5, 2003
Before MOTZ and DUNCAN, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Richard H. Warder, Greenville, South Carolina, for Appellant. Regan
Alexandra Pendleton, Assistant United States Attorney, Greenville,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MASON
OPINION
PER CURIAM:
Thomas Mason pled guilty, pursuant to a written plea agreement,
to one count of conspiracy to possess with intent to distribute more
than 500 grams of methamphetamine, 21 U.S.C. § 846 (2000), and
one count of possession with intent to distribute more than 500 grams
of methamphetamine, 21 U.S.C. § 841 (2000), and was sentenced to
188 months’ imprisonment, followed by five years of supervised
release.
Mason’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), addressing whether Mason’s guilty
plea was knowing and voluntary and whether the district court cor-
rectly determined Mason’s sentence. Counsel concedes, however, that
there are no meritorious issues for appeal. Mason has filed a supple-
mental pro se brief in which he also claims that: (1) the Government
was required to prove whether the methamphetamine was "injectable"
or "non-injectable;" (2) his attorney was ineffective for failing to raise
this issue at sentencing; and (3) § 841 is unconstitutional.*
Counsel first addresses whether Mason’s plea was knowing and
voluntary. Our review of the record reveals that the district court fully
complied with Fed. R. Crim. P. 11. The court ascertained that Mason
was 43 years old, had obtained a GED, and was not under the influ-
ence of alcohol or drugs. Mason stated that he understood the charge
against him, the maximum penalty that he faced (life imprisonment),
the binding nature of his plea, the rights he waived by pleading guilty,
the abolition of parole, and supervised release. He informed the court
that he was guilty as charged and that he had not been threatened or
coerced to enter a plea. Mason expressed satisfaction with his law-
yer’s services. The court determined that there was an independent
factual basis to support the plea and entered a verdict of guilty.
Next, counsel addresses whether the district court properly deter-
*We grant Mason’s motion to file the supplemental brief out of time.
UNITED STATES v. MASON 3
mined Mason’s sentence; he notes, however, that no objections were
made at Mason’s sentencing hearing. Accordingly, the standard of
review is plain error. See United States v. Olano, 507 U.S. 725, 732-
37 (1993).
Based on a total offense level of 33 and criminal history category
IV, Mason’s guideline range was 188 to 235 months’ imprisonment;
the statutory maximum is life imprisonment. The district court’s deci-
sion to sentence Mason to a term within the guideline range may not
be challenged on appeal. See United States v. Jones, 18 F.3d 1145,
1151 (4th Cir. 1994).
Mason first claims that the district court erred in sentencing him
without first requiring the Government to prove whether the metham-
phetamine was "injectable" or "non-injectable." We find no merit to
this claim. Next, Mason claims that his attorney was ineffective for
failing to raise this claim at sentencing. Claims of ineffective assis-
tance of counsel are not properly raised on direct appeal unless the
record conclusively reveals that the defendant’s representation was
defective. United States v. Vinyard, 266 F.3d 320, 333 (4th Cir.
2001), cert. denied, 536 U.S. 922 (2002). Because the record does not
conclusively show that Mason’s counsel was ineffective, we decline
to consider this issue on direct appeal.
Finally, Mason challenges the constitutionality of § 841 on two
grounds: (1) that it "selectively punishes certain users of drugs, that
are ‘harmful’ to society, while allowing other of greater harm," and
(2) that it fails to show a substantial effect on interstate commerce
and, therefore, violates the rule in Lopez v. United States, 514 U.S.
549 (1995). As to Mason’s first ground, "[s]tatutes are presumed con-
stitutional, and a law that neither creates a suspect class nor abridges
a fundamental right is given only minimal equal protection scrutiny."
Faircloth v. Finesod, 938 F.2d 513, 516 (4th Cir. 1991). Section 841
clearly survives this minimal scrutiny as there is no basis to deem
Congress’ actions "irrational." Id. at 516-17. His second ground fares
no better. Indeed, this court has already considered and rejected a
Commerce Clause challenge to § 841(a)(1). United States v. Leshuk,
65 F.3d 1105, 1112 (4th Cir. 1995).
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm Mason’s conviction
4 UNITED STATES v. MASON
and sentence. 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 this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We deny counsel’s motion to withdraw at this time and 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