United States v. McElveen , 182 F. App'x 219 ( 2006 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-4923
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    LEROY ALONZO MCELVEEN, a/k/a Deekie,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Florence.   Terry L. Wooten, District Judge.
    (CR-03-651)
    Submitted: May 18, 2006                          Decided: May 25, 2006
    Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia, South
    Carolina, for Appellant.   Arthur Bradley Parham, OFFICE OF THE
    UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Leroy Alonzo McElveen was found guilty by a jury on
    charges of conspiracy to commit armed bank robbery, in violation of
    
    18 U.S.C. §§ 2113
    (a), 2113(d), 371 (2000); armed bank robbery, in
    violation of 
    18 U.S.C. §§ 2113
    (a), 2113(d), 2 (2000); use of a
    firearm during a crime of violence, in violation of 
    18 U.S.C. §§ 924
    (c)(1)(A)(ii), 2; commission of a crime that interfered with
    interstate commerce, in violation of 
    18 U.S.C. § 1951
    (a); and use
    and   carrying     of   a   firearm   during    and   in    relation     to,   and
    possession of a firearm in furtherance of, a crime of violence, in
    violation of 
    18 U.S.C. §§ 924
    (c)(1)(A)(ii), 924(c)(1)(C) (2000).
    The district court sentenced McElveen to an aggregate sentence of
    476 months’ imprisonment, five years total term of supervised
    release, and ordered payment of a $500 statutory assessment and
    restitution   of    $8421.      McElveen’s     counsel     has   filed   a   brief
    pursuant to Anders v. California, 
    386 U.S. 738
     (1967), raising
    three issues, but stating that there are no meritorious grounds for
    appeal.   McElveen has filed a pro se brief raising a number of
    additional issues for this court’s consideration.
    McElveen, by counsel, first asserts error in the district
    court’s denial of his motion for acquittal based on lack of proof
    of interference with interstate commerce.             We find sufficient to
    establish the requisite nexus the Government’s evidence that the
    crime constituted the taking of money that could have been used to
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    purchase out-of-state supplies and resulted in the closing of the
    bank for business for a day following the robbery.                  See e.g.,
    United States v. Buffey, 
    899 F.2d 1402
    , 1404 (4th Cir. 1990)
    (quoting United States v. Elders, 
    569 F.2d 1020
    , 1023-24 (7th Cir.
    1978) (holding de minimis nexus sufficient).
    Next,    McElveen    and    his      counsel    challenge       the
    identification testimony before the grand jury and at trial, and
    the district court’s denial of his suppression motion on the same
    basis.   We find this claim unavailing because the district court
    properly followed the two-step analysis to determine whether the
    challenged identification was admissible, and McElveen has not met
    his burden of proof in challenging the identification testimony.
    See United States v. Johnson, 
    114 F.3d 435
    , 441 (4th Cir. 1997).
    By   counsel,   McElveen   asserts    error    in   the    district
    court’s application of a two-level enhancement to his sentence
    pursuant to U.S. Sentencing Guidelines Manual § 2B3.1(b)(4)(B)
    (2003). A careful review of the sentencing transcript reveals that
    the district court ultimately chose not to apply this enhancement
    to McElveen’s guideline calculation, and further reveals that
    McElveen was sentenced within a properly calculated Guidelines
    range under an advisory sentencing scheme, in compliance with
    United States v. Booker, 
    543 U.S. 220
     (2005).
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    After careful consideration, we find to be without merit
    the additional issues McElveen raises pro se.*             McElveen’s claim of
    ineffective assistance of counsel is not cognizable on direct
    appeal,     as    the   record    does    not    conclusively   establish      such
    ineffectiveness.        United States v. Richardson, 
    195 F.3d 192
    , 198
    (4th Cir. 1999).
    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues for
    appeal.     We therefore affirm McElveen’s conviction and sentence.
    At   this   juncture,     we     deny    McElveen’s   motion    to   relieve   his
    attorney.        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
    *
    Specifically, McElveen challenges the credibility of the
    testimony of his co-Defendant, asserts his conviction violates the
    prohibition against double jeopardy, challenges the court’s denial
    of his requests to attend attorney bench conferences, and seeks to
    assert a claim under Brady v. Maryland, 
    373 U.S. 83
    , 87 (1963).
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