UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7656
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRYL GLEN RILEY, a/k/a Kendu,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-98-101)
Submitted: June 10, 2005 Decided: June 28, 2005
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elaine Metlin, Laura H. Hamilton, Bernard F. Sheehan, Charles E.
Luftig, DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP, Washington, D.C.,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Brian L. Whisler, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darryl Glen Riley seeks to appeal the district court’s
orders denying relief on his motion filed under 28 U.S.C. § 2255
(2000) and his motion to reconsider. In these motions, Riley
attacked his life sentence pursuant to a jury conviction for
conspiracy to distribute powder and crack cocaine (count one).1
Riley raised six claims of ineffective assistance in the district
court, each of which was denied. On appeal, he raises three of
those claims, alleging counsel was ineffective because: Ground
Three, counsel failed to object to the admission of a gun admitted
at trial; Ground Five, counsel failed to object to a sentencing
enhancement for a leadership role in the offense; and, Ground Six,
counsel failed to argue that his sentence was erroneous under
Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court
denied relief on all the claims, dismissed Riley’s § 2255 motion,
and denied his motion to reconsider. Thereafter, however, the
district court granted Riley a certificate of appealability on
Ground Six.
We previously denied Riley’s motion to expand the
certificate of appealability to include Grounds Three and Five, but
1
This court previously affirmed Riley’s conviction for count
one, but remanded for resentencing. See United States v. Riley,
Nos. 01-4106, 01-4150, 01-4204, 2001 WL 1261926 (4th Cir. Oct. 22,
2001) (unpublished).
- 2 -
we appointed counsel to represent Riley on appeal from the
dismissal of Ground Six.2
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Riley
argues that the lawyer who represented him at resentencing rendered
ineffective assistance by failing to adequately argue that Apprendi
prohibited the judge from basing his sentence on facts not found by
the jury. To prevail on a claim of ineffective assistance, Riley
must show (1) “that counsel’s representation fell below an
objective standard of reasonableness,” Strickland v. Washington,
466 U.S. 668, 688 (1984), and (2) “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at 694.
Even if in the wake of Apprendi it would have been objectively
unreasonable for counsel to fail to object to judicial fact-finding
at sentencing, Riley cannot prevail on his ineffective assistance
claim because his counsel did argue that all facts relevant to his
sentence should have been proven to the jury beyond a reasonable
doubt rather than found by a preponderance of the evidence by the
judge. J.A. 157-59. Accordingly, we affirm the denial of relief
on Ground Six. 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
2
We express our thanks to Riley’s appointed counsel who
submitted excellent briefs on appeal.