UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4923
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEROY ALONZO MCELVEEN, a/k/a Deekie,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-651)
Submitted: May 18, 2006 Decided: May 25, 2006
Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia, South
Carolina, for Appellant. Arthur Bradley Parham, OFFICE OF THE
UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Leroy Alonzo McElveen was found guilty by a jury on
charges of conspiracy to commit armed bank robbery, in violation of
18 U.S.C. §§ 2113(a), 2113(d), 371 (2000); armed bank robbery, in
violation of 18 U.S.C. §§ 2113(a), 2113(d), 2 (2000); use of a
firearm during a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii), 2; commission of a crime that interfered with
interstate commerce, in violation of 18 U.S.C. § 1951(a); and use
and carrying of a firearm during and in relation to, and
possession of a firearm in furtherance of, a crime of violence, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 924(c)(1)(C) (2000).
The district court sentenced McElveen to an aggregate sentence of
476 months’ imprisonment, five years total term of supervised
release, and ordered payment of a $500 statutory assessment and
restitution of $8421. McElveen’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising
three issues, but stating that there are no meritorious grounds for
appeal. McElveen has filed a pro se brief raising a number of
additional issues for this court’s consideration.
McElveen, by counsel, first asserts error in the district
court’s denial of his motion for acquittal based on lack of proof
of interference with interstate commerce. We find sufficient to
establish the requisite nexus the Government’s evidence that the
crime constituted the taking of money that could have been used to
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purchase out-of-state supplies and resulted in the closing of the
bank for business for a day following the robbery. See e.g.,
United States v. Buffey, 899 F.2d 1402, 1404 (4th Cir. 1990)
(quoting United States v. Elders, 569 F.2d 1020, 1023-24 (7th Cir.
1978) (holding de minimis nexus sufficient).
Next, McElveen and his counsel challenge the
identification testimony before the grand jury and at trial, and
the district court’s denial of his suppression motion on the same
basis. We find this claim unavailing because the district court
properly followed the two-step analysis to determine whether the
challenged identification was admissible, and McElveen has not met
his burden of proof in challenging the identification testimony.
See United States v. Johnson, 114 F.3d 435, 441 (4th Cir. 1997).
By counsel, McElveen asserts error in the district
court’s application of a two-level enhancement to his sentence
pursuant to U.S. Sentencing Guidelines Manual § 2B3.1(b)(4)(B)
(2003). A careful review of the sentencing transcript reveals that
the district court ultimately chose not to apply this enhancement
to McElveen’s guideline calculation, and further reveals that
McElveen was sentenced within a properly calculated Guidelines
range under an advisory sentencing scheme, in compliance with
United States v. Booker, 543 U.S. 220 (2005).
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After careful consideration, we find to be without merit
the additional issues McElveen raises pro se.* McElveen’s claim of
ineffective assistance of counsel is not cognizable on direct
appeal, as the record does not conclusively establish such
ineffectiveness. United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm McElveen’s conviction and sentence.
At this juncture, we deny McElveen’s motion to relieve his
attorney. 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
*
Specifically, McElveen challenges the credibility of the
testimony of his co-Defendant, asserts his conviction violates the
prohibition against double jeopardy, challenges the court’s denial
of his requests to attend attorney bench conferences, and seeks to
assert a claim under Brady v. Maryland, 373 U.S. 83, 87 (1963).
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