UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4690

ELDRED DONELL EADY,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CR-00-41-V)

Submitted: April 18, 2003

Decided: May 15, 2003

Before LUTTIG and MOTZ, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Robert J.

Conrad, Jr., United States Attorney, D. Scott Broyles, Assistant

United States Attorney, Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Eldred Donell Eady appeals his conviction and sentence for conspiracy to possess with intent to distribute quantities of cocaine and

cocaine base. Finding no reversible error, we affirm. 

Eady first claims that the district court erred in granting continuances prior to the commencement of trial in violation of the Speedy

Trial Act. This court reviews the district court’s legal conclusions

regarding its interpretation of the Speedy Trial Act de novo, United

States v. Jarrell, 147 F.3d 315, 317 (4th Cir. 1998), and reviews the

underlying factual findings for clear error. United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996). 

Under the Speedy Trial Act, a defendant must be tried within seventy days from the filing date of the indictment or from the date the

last co-defendant to appear has appeared before a judicial officer,

whichever date is later. See 18 U.S.C. § 3161(c)(1) (2000); Henderson v. United States, 476 U.S. 321, 323 n.2 (1986). The Act provides

a list of periods of delay that are excluded for purposes of speedy trial

calculations, including "[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of

the defendant . . . if the judge granted such continuance on the basis

of his findings that the ends of justice served by taking such action

outweigh the best interest of the public and the defendant in a speedy

trial." § 3161(h)(8)(A). 

Here, Eady’s seventy-day period under the Speedy Trial Act began

on January 26, 2001, the date of the last initial appearance of codefendant Clyde Everette. Our review of the record reveals that the

district court properly granted continuances until the January 7, 2002

term and that no violation of the Speedy Trial Act occurred. 

Eady also claims that the delay violated his Sixth Amendment right

to a speedy trial. In determining whether a pre-trial delay violates a

defendant’s Sixth Amendment right, a court must balance four considerations: (1) the length of the delay, (2) the reason for the delay,

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(3) the defendant’s assertion of his right to a speedy trial, and (4) the

extent of prejudice to the defendant. Barker v. Wingo, 407 U.S. 514,

530 (1972). We have reviewed the facts in this case within the framework of these four factors and find no violation of Eady’s Sixth

Amendment right. 

Next, Eady contends that the district court abused its discretion in

denying his request to represent himself after commencement of the

trial. As we have held, the assertion of a right to proceed pro se must

be: (1) clear and unequivocal; (2) knowing, intelligent, and voluntary;

and (3) timely. United States v. Frazier-El, 204 F.3d 553, 558 (4th

Cir. 2000). When a defendant asserts his right to self-representation

after the trial has commenced, the decision "whether to allow the

defendant to proceed pro se at all or to impose reasonable conditions

on self-representation rests in the sound discretion of the trial court."

United States v. Singleton, 107 F.3d 1091, 1099 (4th Cir. 1997). Our

review of the record reveals no abuse of discretion in the district

court’s decision to deny Eady’s request. 

Eady also claims that the prior conviction described in the 21

U.S.C. § 851 (2000) information should have been charged in the

indictment, submitted to a jury, and proven beyond a reasonable

doubt under the Supreme Court’s decision in Apprendi v. New Jersey,

530 U.S. 466 (2000). Because Eady did not raise the issue below, this

court reviews his claim for plain error. Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993). 

Based on the jury’s findings of drug quantity, Eady faced a maximum penalty of life imprisonment pursuant to 21 U.S.C.

§ 841(b)(1)(A) (2000). Because Eady’s 262-month sentence does not

exceed the statutory maximum and Apprendi explicitly exempts prior

convictions from its scope, see Apprendi, 530 U.S. at 490, we find

that no Apprendi error occurred. Apprendi simply does not apply to

penalty enhancements based on prior convictions. Id.

Eady next claims that the district court erred in failing to treat the

sentencing guideline enhancements as elements of the offense in violation of Apprendi. As we have held, judicial factfinding under the

sentencing guidelines to determine the sentence within the statutory

range does not implicate Apprendi. United States v. Kinter, 235 F.3d

UNITED STATES v. EADY 3
192, 201 (4th Cir. 2000). The relevant "maximum" under Apprendi is

found in the statute, not the guidelines. Id.

Finally, Eady contends that he received ineffective assistance of

counsel. Claims of ineffective assistance of counsel are generally not

cognizable on direct appeal. United States v. King, 119 F.3d 290, 295

(4th Cir. 1997). To allow for adequate development of the record, the

presumptive rule is that ineffective assistance of counsel claims must

be pursued in a 28 U.S.C. § 2255 (2000) motion. United States v.

Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists when

the record conclusively establishes ineffective assistance of counsel.

King, 119 F.3d at 295. A review of the record does not conclusively

establish that Eady received ineffective assistance of counsel. We

therefore find that Eady must pursue these claims on collateral

review. 

Accordingly, we affirm Eady’s conviction and sentence. 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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