United States of America, Plaintiff-appellee, v. Anthony Steven Austin, Defendant-appellant, 23 F.3d 403 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 23 F.3d 403 (4th Cir. 1994) Submitted April 21, 1994. Decided May 16, 1994

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Sr., District Judge. (CR-93-131)

Thomas N. Cochran, Asst. Federal Public Defender, Greensboro, NC, for appellant.

Benjamin H. White, Jr., U.S. Atty., Michael F. Joseph, Asst. U.S. Atty., Greensboro, NC, for appellee.



Before ERVIN, Chief Judge, MICHAEL, Circuit Judge, and CHAPMAN, Senior Circuit Judge.



Anthony Steven Austin pled guilty to possession of 382 grams of crack cocaine with intent to distribute in violation of 21 U.S.C.A. Sec. 841 (West 1981 & Supp.1993). Austin appeals his conviction and his sentence of 151 months imprisonment. His attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), raising the issue of the sentence computation, but stating that, in his view, there are no meritorious issues for appeal. Austin has filed a supplemental brief in which he contends that his attorney's representation was ineffective. We affirm.

We find that the sentencing guideline range was correctly calculated. United States Sentencing Commission, Guidelines Manual, Secs. 2D1.1, 4A1.1 (Nov.1992). A claim of ineffective assistance will not be considered on direct appeal in this circuit unless the record conclusively demonstrates ineffective assistance. United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992), cert. denied, 61 U.S.L.W. 3583 (U.S.1993). Such a claim should be raised collaterally in a motion under 28 U.S.C. § 2255 (1988).

As required by Anders, we have independently reviewed the entire record and find no other meritorious issues for appeal. We therefore affirm the conviction and sentence. Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964 (18 U.S.C. § 3006A (West 1985 & Supp.1994)), this Court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. Therefore, counsel's motion to withdraw is denied. If requested by his client to do so, counsel should prepare a timely petition for a writ of certiorari.

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.