UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4802
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALTER BRENNAN CONNOR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-4)
Submitted: August 31, 2006 Decided: September 5, 2006
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John C. Snyder, III, THURMAN, WILSON AND BOUTWELL, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Walter Brennan Connor pled guilty to conspiracy to
possess with intent to distribute five kilograms or more of powder
cocaine and fifty grams or more of cocaine base, in violation of 21
U.S.C. §§ 841, 846 (2000). The district court sentenced Connor to
135 months’ imprisonment, five years of supervised release, and
ordered payment of a $100 statutory assessment.1 Following United
States v. Hammoud, 381 F.3d 316, 353-54 (4th Cir. 2004), the
district court also held that if the Sentencing Guidelines were
determined to be unconstitutional, it would impose the identical
sentence under an advisory guideline sentence under 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005). Connor’s appellate counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious grounds for appeal,
but questioning whether Connor’s trial attorney was ineffective.
Connor was given an opportunity to file a supplemental pro se
1
The probation officer calculated a sentencing guideline range
applicable to Connor of 262 to 327 months’ imprisonment founded on
a total offense level of 37 (base offense level of 38 based on
responsibility for more than 1.5 kilograms of cocaine base, to
which two levels were added for possession of a dangerous weapon
and three were subtracted for acceptance of responsibility), and a
criminal history category of III. Connor filed objections to the
presentence report, contending that the amount of cocaine base
reasonably foreseeable to him was at least 150 grams but less than
500 and that his base offense level should be 34, rather than 38,
based on the admitted drug quantity. After careful consideration
of the facts and evidence, the district court ruled in accordance
with the agreement of the parties, adjusted Connor’s offense level
to 34 and his criminal history category to III, with an attendant
adjusted guideline range of 135 to 168 months’ imprisonment.
- 2 -
brief, and asserts error in the increase of the amount of crack
cocaine attributable to him from 50 grams to 150-500 grams. We
find Connor’s assertions to be without merit.
First, Connor’s claim of ineffective assistance of
counsel should be brought 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 the defense counsel did
not provide effective representation. See United States v.
DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Because it does not
conclusively appear from the record that defense counsel here was
ineffective, we decline review of this issue on direct appeal.
Connor’s pro se claim of error in the increase of the
quantity of drug amount on which he was sentenced was based on his
own admissions in his objections to his presentence report and at
sentencing. Hence, the claim has no merit on appeal.
While not raised by Connor or his attorney, we find that,
although the imposition of Connor’s sentence under the then-
mandatory sentencing guidelines was error under United States v.
Booker, 543 U.S. 220 (2005),2 see United States v. White, 405 F.3d
208, 216-17 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005), in
light of the district court’s announcement of an identical
2
As in United States v. Hughes, 401 F.3d 540, 545 n.4 (4th
Cir. 2005), “[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time of
[the defendant’s] sentencing.”
- 3 -
alternate sentence, the error was harmless, as it did not affect
the selection of Connor’s sentence. See United States v. Shatley,
448 F.3d 264, 266-67 (4th Cir.), petition for cert. filed, Aug. 11,
2006 (No. 06-227); United States v. Revels, F.3d , 2006 WL
1134148 at *3 (4th Cir. May 1, 2006).
Moreover, we find that the district court properly
sentenced Connor in compliance with the mandates of Booker, and
Connor’s sentence was reasonable. See United States v. Hughes, 401
F.3d 540, 546-47 (4th Cir. 2005); see also United States v. Green,
436 F.3d 449, 457 (4th Cir.), cert. denied, 2006 WL 1057741 (U.S.
May 22, 2006) (No. 05-10474) (sentence imposed within the advisory
guideline range is presumptively reasonable).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Connor’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.
- 4 -
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
- 5 -