UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4558
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-01-880)
Submitted: January 15, 2004 Decided: January 27, 2004
Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kathrine H. Hudgins, Columbia, South Carolina, for Appellant.
Elizabeth Jean Howard, OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kevin Mitchell pled guilty to conspiracy to possess with
intent to distribute fifty grams or more of cocaine base, in
violation of 21 U.S.C. § 846 (2000). He was sentenced to 180
months imprisonment. Counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967). Counsel states that
there are no meritorious issues for appeal, but contends on
Mitchell’s behalf that the district court erred in its adoption of
the presentence report’s relevant conduct finding that Mitchell
sold 1.02 kilograms of cocaine base to a confidential informant.
Mitchell has filed a pro se supplemental brief asserting trial
counsel was ineffective for withdrawing objections to the
presentence report. Finding no error, we affirm.
Mitchell asserts that the district court erred in
accepting the drug amounts attributed to him in his Presentence
Report (PSR). Because Mitchell withdrew his objections to the PSR,
we review for plain error. Fed. R. Crim. P. 52(b). The district
court adopted the PSR’s finding that Mitchell was responsible for
the drugs he sold to undercover agents of the Drug Enforcement
Agency, 65 grams, and drug sales attributed to Mitchell for the six
month period Mitchell admits he was involved in the conspiracy,
1.02 kilograms. The confidential source reported purchases of one-
half ounce three to four times a week for a year from Mitchell.
The PSR calculated the relevant conduct based on three sales a week
of one-half ounce, four weeks a month for the six month period
during which Mitchell admitted involvement in the conspiracy. The
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district court did not plainly err in adopting the relevant conduct
calculation in the PSR.
To the extent that Mitchell alleges ineffective
assistance of counsel, such claims are generally not cognizable on
appeal except when the record conclusively establishes such
ineffective assistance. United States v. King, 119 F.3d 290, 295
(4th Cir. 1997). A review of the record does not conclusively
establish ineffective assistance of counsel; Mitchell’s ineffective
assistance claim is therefore not cognizable in this direct appeal.
As required by Anders, we have reviewed the record for
reversible error and found none. Accordingly, we affirm Mitchell’s
conviction and sentence. This court requires that counsel inform
her client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests a
petition be filed, but counsel believes 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
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