UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4704
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY MCCRAY, a/k/a Harry J. Chick,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-03-162)
Submitted: June 28, 2006 Decided: July 21, 2006
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daphne A. Burns, DAPHNE A. BURNS, L.L.C., Mount Pleasant, South
Carolina, for Appellant. Jonathan S. Gasser, Jr., United States
Attorney, Robert H. Bickerton, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terry McCray pled guilty pursuant to a plea agreement to
conspiracy to distribute five kilograms or more of cocaine and a
quantity of marijuana, in violation of 21 U.S.C. § 846 (2000). He
now appeals his 120-month sentence, arguing that it violates United
States v. Booker, 543 U.S. 220 (2005), and that his attorney was
ineffective. We affirm.
Although McCray admitted responsibility for only 3.5
kilograms of cocaine, his probation officer prepared a presentence
report (PSR) that assigned McCray a base offense level of 32, based
on the conclusion that he was responsible for at least five
kilograms of the drug. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(4) (2003). Three levels were subtracted for acceptance
of responsibility, see USSG § 3E1.1(a), (b). With a total offense
level of 29 and a criminal history category of I, McCray’s
guideline range was 87-108 months. He was, however, subject to a
mandatory statutory minimum of ten years in prison. See 21 U.S.C.
§ 841(b)(1)(A) (West 1999 & Supp. 2006). The district court
sentenced McCray to 120 months in prison.
McCray first contends on appeal that his sentence
violates the Sixth Amendment under Booker, Blakely v. Washington,
542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466
(2000), because it was based on a fact--that he was responsible for
five kilograms or more of cocaine--found by the district court,
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rather than found by a jury or admitted by him. Because he did not
raise this claim below, our review is for plain error. See United
States v. Olano, 507 U.S. 725, 732 (1993).
We discern no error in this case because the district
court did not “impose a sentence exceeding the maximum allowed
based only on facts [McCray] admitted.” See United States v.
Evans, 416 F.3d 298, 300 (4th Cir. 2005). Based on the fact--
responsibility for no more than 3.5 kilograms of cocaine-- McCray
admitted before adjusting the guideline range for acceptance of
responsibility, see id. at 300 n.4, McCray’s total offense level
would have been 30, and his guideline range would have been 97-121
months. Because his sentence of 120 months does not exceed the
maximum authorized by the facts he admitted, there was no Sixth
Amendment violation. See id. at 300.
McCray also contends that defense counsel was ineffective
for not raising the Sixth Amendment issue. Ordinarily, a defendant
must raise a claim of ineffective assistance in a 28 U.S.C. § 2255
(2000) motion, rather than on direct appeal, unless it conclusively
appears from the record that counsel was ineffective. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). McCray
has not made the required showing and may not raise his
ineffectiveness claim on appeal.
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
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the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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