UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4507
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JANISON VEAL, a/k/a Jason,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Frederick P. Stamp,
Jr., District Judge. (CR-02-43)
Submitted: January 29, 2004 Decided: February 9, 2004
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jacqueline A. Hallinan, HALLINAN LAW OFFICES, P.L.L.C., Charleston,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Janison Veal appeals his conviction, on a guilty plea,
and sentence on charges of distribution of crack cocaine and
possession with the intent to distribute crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2000). By counsel, Veal
challenges his sentence, claiming his constitutional rights to
effective assistance of counsel were violated because his attorney
did not file objections to his presentence investigation report and
failed to review the report with him prior to sentencing. He has
filed a motion for leave to file a supplemental pro se brief,
raising additional issues.
A claim of ineffective assistance of counsel should be
raised by motion under 28 U.S.C. § 2255 (2000), in the district
court, and not on direct appeal, unless it "conclusively appears"
from the record that defense counsel did not provide effective
representation. United States v. King, 119 F.3d 290, 295 (4th Cir.
1997); United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991). We find that it does not conclusively appear from the face
of this record that Veal’s defense counsel failed to provide
effective representation sufficient for this claim to be cognizable
on direct appeal.
In his supplemental brief, Veal asserts the district
court erred in denying his motion to withdraw his guilty plea,
contending that the district court violated Fed. R. Crim. P.
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11(d)(1). Because it is clear from the record that the district
court accepted Veal’s plea of guilty before Veal moved to withdraw
his plea, Rule 11(d)(1) does not apply and this claim is without
merit. Second, Veal’s claim that the Government’s calculation of
drug weight without having to prove that evidence to the jury
beyond a reasonable doubt raises what essentially is a claim
arising under Apprendi v. New Jersey, 530 U.S. 466 (2000). We find
no merit to this claim because Apprendi does not offer relief in
cases where, as here, the sentence did not exceed the statutory
maximum penalty. Finally, Veal challenges his trial attorney’s
failures to object to the alleged improper application of criminal
history points and the obstruction of justice enhancement. We find
that Veal’s criminal history points were correctly calculated and
find no error in the district court’s application of the
obstruction of justice enhancement to Veal.
Accordingly, we grant Veal’s motion to file a
supplemental pro se brief, and affirm Veal’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 argument would not aid the decisional process.
AFFIRMED
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