UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4474

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY D. MCCLELLAND, aka Ant,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Statesville. Richard L. Voorhees,

District Judge. (5:05-cr-00009-13)

Submitted: February 20, 2008 Decided: May 5, 2008

Before MOTZ, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James O. Rice, Jr., EVANS & RICE, PLLC, Asheville, 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Anthony D. McClelland pled guilty to conspiracy to

possess with intent to distribute more than fifty grams of crack

cocaine, more than five kilograms of cocaine, and more than 1000

kilograms of marijuana, in violation of 21 U.S.C. § 846 (2000).

The district court sentenced McClelland as a career offender to a

262-month sentence, the bottom of the advisory sentencing guideline

range. McClelland’s counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), suggesting that

McClelland’s sentence violates the Sixth Amendment, that the

district court erred by sentencing McClelland as a career offender,

and that counsel provided ineffective assistance at sentencing.

Appellate counsel states, however, that, in his view, there are no

meritorious issues for appeal. McClelland was informed of his

right to file a pro se supplemental brief but has not done so. We

affirm.

Counsel asserts that the district court violated

McClelland’s Sixth Amendment rights at sentencing by relying on

facts not admitted by McClelland or found by a jury and that the

court erred by sentencing McClelland as a career offender based

upon the statutory maximum sentence for crack cocaine.

McClelland’s reliance on United States v. Rhynes, 196 F.3d 207 (4th

Cir. 1999), vacated in part on other grounds, 218 F.3d 310 (4th

Cir. 2000) (en banc), is misplaced. Unlike Rhynes, McClelland pled
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guilty to a conspiracy involving more than fifty grams of crack,

more than five kilograms of cocaine, and more than 1000 kilograms

of marijuana, each of which carries a statutory maximum sentence of

life imprisonment, and stipulated to the drug amounts in the

presentence report. See 21 U.S.C. § 841(b)(1)(A). Thus, the

district court did not err in using the statutory maximum sentence

for crack cocaine in establishing McClelland’s base offense level

under the career offender guideline and did not violate his Sixth

Amendment rights.

Finally, McClelland asserts that sentencing counsel

provided ineffective assistance by failing to object to the type

and amount of drugs referenced in the presentence report. This

court, however, “may address [claims of ineffective assistance] on

direct appeal only if the lawyer’s ineffectiveness conclusively

appears from the record.” United States v. Baldovinos, 434 F.3d

233, 239 (4th Cir. 2006). We find that McClelland has failed to

meet this high standard and, therefore, decline to review this

claim on direct appeal.

In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none.

Accordingly, we affirm the district court’s judgment. 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
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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. 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