Filed: November 29, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 00-4737(L)

(CR-96-739)

United States of America,

Plaintiff - Appellee,

versus

Carlos Lopez,

Defendant - Appellant.

ORDER

The court amends its opinion filed November 26, 2001, as

follows:

On the cover sheet, section 3 -- case number 00-4029 is

corrected to read 01-4029.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-4737

CARLOS LOPEZ,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 01-4029

CARLOS LOPEZ,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Spartanburg.

Henry M. Herlong, Jr., District Judge.

(CR-96-739)

Submitted: October 31, 2001

Decided: November 26, 2001

Before WIDENER, WILKINS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Carlos Lopez, Appellant Pro Se. David Calhoun Stephens, Assistant

United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Carlos Lopez appeals from the amended criminal judgment order

after this court vacated his sentence and remanded for re-sentencing.

Lopez was convicted of distributing marijuana and conspiracy to possess with intent to distribute marijuana. Lopez proceeds pro se on

appeal. Lopez has also filed an appeal from the district court's order

denying his request for transcripts and several filings in the case.

Finding no error, we affirm the amended judgment and order.

Lopez argues that his conviction should be vacated because the

indictment was defective as it did not charge a specific quantity of

marijuana, in accordance with Apprendi v. New Jersey, 530 U.S. 466

(2000). Assuming, without deciding, that Lopez was able to utilize

the intervening change in law to raise an issue outside the scope of

remand, see United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993), his

claim fails. Because a conviction under 21 U.S.C.A. § 841(b)(1)(C)

(West 1999), which carries a sentence up to 20 years for a cocaine or

crack offense, may be based on any identifiable amount of cocaine or

crack, this court found that an indictment charging any amount of

cocaine would not be categorically defective under Apprendi. United

States v. Promise, 255 F.3d 150, 160 (4th Cir. 2001), petition for cert.

filed, Sept. 20, 2001 (No. 01-6398). And where the jury is similarly

charged, i.e., that it must simply find that the defendant trafficked in

cocaine, there is no error in the defendant's conviction under

Apprendi. Id. Lopez's situation is the same with respect to marijuana

and a sentence imposed under § 841(b)(1)(D). Accordingly, because

both the indictment and the jury instructions charged Lopez with distribution of and conspiring to possess with intent to distribute marijuana, we conclude that Apprendi does not invalidate his conviction.

Lopez also argues that his sentence is invalid under Apprendi,

because the drug amount was not charged in the indictment and

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proven beyond a reasonable doubt. We find Lopez's reliance on

Apprendi misplaced. Lopez's sentence of five years does not exceed

the five year maximum in § 841(b)(1)(D) for an "identifiable but

unspecified quantity" of marijuana. See Promise, 255 F.3d at 156;

United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001), cert. denied

sub nom., Phifer v. United States, 70 U.S.L.W. 3244 (U.S. Oct. 1,

2001) (No. 01-5838).

Lopez's last claim regarding re-sentencing is that his counsel was

ineffective by failing to challenge the validity of the indictment.

Claims of ineffective assistance are not cognizable on direct appeal

unless counsel's ineffectiveness plainly appears on the face of the

record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.

1991). We have reviewed the record for error and have found no clear

ineffective assistance by trial counsel based on this claim.

Lastly, Lopez noted an appeal of the district court's December 12,

2000, order denying his motion for transcripts and copies of several

of his own filings. Lopez did not pursue this claim on appeal, however. The order is not specified in the informal brief and the brief does

not make any argument pertaining to it. Lopez received the transcripts

and documents he requested from the district court by an order of this

court after he was granted permission to proceed pro se on appeal.

Because Lopez did not pursue the argument in his informal brief, it

is deemed abandoned. See 4th Cir. R. 34(b) (this court limits its

review on appeal to the issues raised in appellant's informal brief).

We therefore affirm the amended criminal judgment and order

denying transcripts and copies. 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

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