UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4529
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDOLPH HUNT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. H. Brent McKnight,
District Judge. (CR-02-199)
Submitted: October 19, 2005 Decided: November 14, 2005
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William E. Loose, WILLIAM E. LOOSE ATTORNEY AT LAW, P.A.,
Asheville, North Carolina, for Appellant. Jennifer M. Hoefling,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Randolph Hunt appeals the district court’s judgment
entered pursuant to his guilty plea for conspiracy to possess with
intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1)
(2000). Hunt’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying there are no
meritorious issues for appeal. Hunt filed a pro se supplemental
brief, claiming the district court committed sentencing error under
United States v. Booker, 125 S. Ct. 738, 764-68 (2005). Finding no
reversible error, we affirm.
Hunt claims that the district court improperly sentenced
him when it imposed a sentence greater than the maximum authorized
by the facts he admitted to in his plea agreement. Because Hunt
failed to raise this claim below, we must review it for plain
error. United States v. Hughes, 401 F.3d 546, 547 (4th Cir. 2005).
Hunt claims that the district court only had evidence of 148 grams
of cocaine base and that it erred when it sentenced him using a
drug quantity of over 1.5 kilograms of cocaine base. However, in
his plea agreement, Hunt agreed that the amount of cocaine base
attributable to him was in excess of 1.5 kilograms. No Booker
error existed because Hunt admitted to the amount of drugs used in
calculating his sentence.
Hunt also claims the district court erred by enhancing
his sentence two offense levels for use of a dangerous weapon under
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U.S. Sentencing Guidelines Manual § 2D1.1(a)(3) (2004). However,
to constitute Sixth Amendment error, the sentence imposed must have
exceeded what could have been imposed without the challenged
enhancement. United States v. Evans, 416 F.3d 298, 300 (4th Cir.
2005). Absent the enhancement, Hunt’s base offense level of
thirty-eight* and criminal history category of VI result in a
sentencing range of 360 months’ to life imprisonment, the same
sentencing range the district court applied. Hunt’s sentence of
360 months’ imprisonment fell within that range. Because Hunt’s
sentence did not exceed the maximum authorized by the facts of the
offense to which he pled guilty, no Sixth Amendment violation
occurred and the district court did not commit plain error. See
Evans, 416 F.3d at 298.
Finally, Hunt claims his trial counsel was ineffective in
negotiating his plea agreement. Claims of ineffective assistance
of counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Our review of the
record reveals that Hunt has failed to meet the high burden
necessary to raise ineffective assistance of counsel on direct
appeal.
*
As in Evans, for purposes of determining whether a Sixth
Amendment violation occurred, the sentence imposed on Hunt is
compared against the guideline range he should have received, based
on a jury verdict or admitted conduct, excluding the adjustment for
acceptance of responsibility. Id. at 300 n.4.
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Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Hunt’s conviction 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 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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