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The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-3749

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri

Clarence J. Walton, *

* [UNPUBLISHED]

Appellant. *

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Submitted: May 1, 2005

Filed: July 20, 2005

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Before MELLOY, McMILLIAN, and GRUENDER, Circuit Judges.

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PER CURIAM.

Clarence J. Walton appeals from the final judgment entered in the District

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 for the Western District of Missouri after a jury convicted him of drugconspiracy and drug-possession offenses. Because Walton had a prior felony drug

conviction, the district court sentenced him to the statutory mandatory minimum of

240 months imprisonment and 10 years supervised release on each count, to be served

concurrently. Counsel has moved to withdraw on appeal and has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that the evidence was
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insufficient to convict him and that trial counsel was ineffective. Walton has filed a

pro se supplemental brief, arguing that Apprendi v. New Jersey, 530 U.S. 466 (2000),

and Blakely v. Washington, 124 S. Ct. 2531 (2004), exempt only the “fact” of a prior

conviction from those matters that must be submitted to a jury, and thus other facts--

such as the type of prior conviction and its finality--should have been alleged in the

indictment and submitted to the jury as elements of the offense. For the reasons

discussed below, we affirm the judgment of the district court.

First, viewing the trial evidence in a light most favorable to the verdict, we find

the evidence supports the jury’s verdict. Walton admitted to selling cocaine base

(“crack”) since 1989; crack and tools of the drug trade were seized at his residence;

and other circumstantial evidence indicated that Walton was the provider of the crack

that two codefendants obtained from Walton’s residence for an undercover officer.

See United States v. Urkevich, 408 F.2d 1031, 1036-37 (8th Cir. 2005) (conspiracy

elements; sufficiency-of-evidence standard of review; jury could reasonably conclude

defendant knowingly participated in conspiracy to distribute methamphetamine based

on evidence that drugs, drug paraphernalia, and tools of drug-trafficking trade were

found in defendant’s residence, and based on witness testimony that defendant sold

and distributed methamphetamine); United States v. Sanchez, 252 F.3d 968, 972 (8th

Cir. 2001) (possession elements). Second, we conclude that any

ineffective-assistance claim should be raised in a 28 U.S.C. § 2255 proceeding where

the record can be appropriately developed. See United States v. Santana, 150 F.3d

860, 863 (8th Cir. 1998). Third, Walton’s Sixth Amendment rights were not violated

by the sentence enhancement: a prior felony conviction is a sentencing factor that

need not be pleaded in the indictment or put to a jury, see Apprendi, 530 U.S. at 490,

and both Blakely and United States v. Booker, 125 S. Ct. 738 (2005), reaffirmed

Apprendi’s holding. See United States v. Reeves, No. 04-2356, 2005 S.WL 1366432

at *3 (8th Cir. June 10, 2005). Further, we have rejected the argument that the nature

of a prior conviction is to be treated differently from the fact of a prior conviction.

See United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005). 
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We have also reviewed the record independently for any nonfrivolous issues,

see Penson v. Ohio, 488 U.S. 75, 80 (1988), and we have found none. 

Accordingly, we grant counsel’s motion to withdraw, we deny appellant’s

motion to compel counsel to file a supplemental brief, and we affirm. 

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