UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4226

JAMES RICHARD LOVING,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Charles H. Haden II, Chief District Judge.

(CR-01-177)

Submitted: October 16, 2002

Decided: November 7, 2002

Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Edward M. Hall, HAYES & HALL, P.L.C., Charleston, West Virginia, for Appellant. Kasey Warner, United States Attorney, John L.

File, Assistant United States Attorney, Charleston, West Virginia, for

Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

James Richard Loving appeals from his conviction and 151-month

sentence for distribution of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1) (2000). We affirm. 

Loving’s counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), addressing three issues: (1) whether the district court

erred by accepting his guilty plea without ensuring that the guilty plea

was knowingly and voluntarily entered; (2) whether the district court

lacked jurisdiction to accept his guilty plea because the drug amounts

were not charged in the offense of conviction; and (3) whether the

district court erred in attributing quantities of drugs to Loving as relevant conduct when the quantities were not proven beyond a reasonable doubt. 

Loving filed a pro se supplemental brief claiming counsel misled

him regarding what issues he would appeal, instead filing an Anders

brief. Furthermore, he apparently claims that his guilty plea was

obtained via duress and threats and that his guilt was not supported

by the preponderance of the evidence. 

Because Loving did not seek to withdraw his guilty plea in the district court, we review his Rule 11 plea hearing for plain error. United

States v. Martinez, 277 F.3d 517, 524, 527 (4th Cir. 2002). Having

reviewed the Rule 11 transcript, we find no basis for finding Loving’s

plea involuntary. To the extent that Loving asserts he was coerced and

threatened, his claims are unsupported by the record. Furthermore,

there is an adequate factual basis for the plea. 

Loving contends his sentence was imposed in violation of

Apprendi v. New Jersey, 530 U.S. 466 (2000), because no drug quantity was alleged in the indictment. The district court did not commit

plain error. See Fed. R. Crim. P. 52(b); United States v. Pinckney, 938

F.2d 519, 522 (4th Cir. 1991). Loving’s sentence of 151 months’

imprisonment does not exceed the statutory maximum of 240 months

set forth in § 841. Thus, his sentence does not implicate Apprendi. See

2 UNITED STATES v. LOVING
United States v. Kinter, 235 F.3d 192, 199-202 (4th Cir. 2000), cert.

denied, 532 U.S. 937 (2001). Loving’s contention that the district

court erred in attributing quantities of cocaine to him as relevant conduct when the quantities were not proven beyond a reasonable doubt

also fails because his sentence does not exceed the statutory maximum. 

Next, we reject Loving’s claim of ineffective assistance of counsel

as the record fails to conclusively demonstrate such ineffective assistance, and such claims should therefore be asserted in a 28 U.S.C.

§ 2255 (2000) motion. See United States v. King, 119 F.3d 290, 295

(4th Cir. 1997). 

As required by Anders, we have reviewed the entire record and

have found no meritorious issues for appeal. We therefore affirm

Loving’s conviction and sentence. 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 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

UNITED STATES v. LOVING 3