United States v. Talouzi

6 F. App'x 134

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 20, 2001
• Docket: 00-4261
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Basim Ali Talouzi appeals his conviction and sentence imposed after he pled guilty to distribution of crack cocaine, in violation of 21 U.S.C.A. § 841(a) (West 1999). Talouzi’s attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising several issues but stating that, in her view, there are no meritorious issues for appeal. Talouzi has filed a pro se supplemental brief raising additional issues. We grant his motion to file a corrected pro se reply brief. Finding no reversible error, we affirm the conviction and sentence.

Talouzi asserts that his 120-month sentence violates the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because drug quantity was not charged in the indictment. Because Talouzi did not raise this argument below, this court’s review is only for plain error. United States v. Pratt, 239 F.3d 640, 646-47 (4th Cir.2001). Talouzi’s 120 month sentence is below the lowest possible statutory maximum in 21 U.S.C.A. § 841(b) (West 1999); thus, the sentence does not violate Apprendi. See Pratt, 239 F.3d 640, 647 n. 3 (assuming “without deciding that the maximum term of imprisonment for a violation of § 841(a) without regard to drug quantity is twenty years”); United States v. Lewis, 235 F.3d 215, 219 (4th Cir.2000) (applying a plain error standard of review); United States v. Kinter, 235 F.3d 192, 201 (4th Cir.2000) (holding that Apprendi does not apply to a judge’s exercise of sentencing discretion within a statutory range so long as a defendant’s sentence is not set beyond the maximum term specified in the substantive statute). We therefore find no plain error in this regard.

Next, Talouzi argues that his five-year supervised release term under § 841(b)(1)(C) exceeds the three-year term provided in 18 U.S.C.A. § 3583 (West 2000), and, therefore, violates Apprendi. We rejected this argument in Pratt, holding that “where a statute’s mandatory minimum term of supervised release is the same as, or exceeds, § 3583’s maximum terms, § 3583’s maximum terms do not apply.” Pratt, 239 F.3d 640, 647-48. Thus, Talouzi’s five-year supervised release term does not run afoul of Apprendi. Id. Talouzi therefore has shown no plain error.

Talouzi also argues that, even if Apprendi is inapplicable, the district court erred in determining drug quantity through the principles of relevant conduct. Because Talouzi did not object to the district court’s amended calculation at sentencing, we review this claim for plain error and find none. United States v. Lipford, 203 F.3d 259, 271 (4th Cir.2000) (stating standard of review); United States v. Sampson, 140 F.3d 585, 592 (4th Cir.1998) (stating that sentencing guidelines do not demand certainty and precision and that court should err on side of caution). Nor do we find any plain error in the district court’s refusal to award a downward adjustment for acceptance of responsibility. U.S. Sentencing Guidelines Manual § 3E1.1, comment, (n.1(a)); United States v. Dickerson, 114 F.3d 464, 469 (4th Cir.1997).

Finally, Talouzi asserts that counsel provided ineffective representation in numerous ways. We decline to address these claims on direct appeal. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing that defendant must show conclusively from face of record that counsel was ineffective and noting that ineffective assistance of counsel claims generally should be raised by motion under 28 U.S.C. § 2255), cert. denied, 528 U.S. 1096, 120 S.Ct. 837, 145 L.Ed.2d 704 (2000).

In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Talouzi’s conviction and sentence. This court requires that counsel inform her 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.