United States v. Gleaton , 65 F. App'x 464 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4452
TYRONE GLEATON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Cameron M. Currie, District Judge.
(CR-01-871)
Submitted: April 30, 2003
Decided: May 30, 2003
Before WIDENER, WILKINSON, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Christopher J. Moran, LAW OFFICE OF CHRISTOPHER J.
MORAN, Columbia, South Carolina, for Appellant. William Kenneth
Witherspoon, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GLEATON
OPINION
PER CURIAM:
Tyrone Gleaton pled guilty to possession with intent to distribute
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2000). The district court adopted the findings in the pre-
sentence investigation report ("PSR") and sentenced Gleaton to 151
months of imprisonment, to be followed by a five-year term of super-
vised release.
Gleaton’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there were no meritorious grounds
for appeal, but raising the issue of whether the district court erred in
converting $26,500 of the $36,684 seized from Gleaton’s residence
into an equivalent amount of cocaine base when calculating the quan-
tity of drugs involved because those funds were earned or obtained
through legitimate means. Gleaton has raised an additional issue of
ineffective assistance of trial counsel in his notice of appeal.
Because Gleaton withdrew his objection to the calculation of the
drug quantity in the district court, this claim is reviewed for plain
error. Under the plain error standard, Gleaton must show: (1) there
was error; (2) the error was plain; and (3) the error affected his sub-
stantial rights. United States v. Olano, 507 U.S. 725, 732 (1993).
Even when these conditions are satisfied, this court may exercise its
discretion to notice the error only if the error "seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings." Id.(internal quotation marks omitted). Because the district court properly
relied on information in the presentence report, and Gleaton failed to
present evidence demonstrating that any of the cash seized from his
residence was earned or obtained through legitimate means, we con-
clude that the district court did not err in converting the cash into
equivalent drug amounts. See United States v. Randall, 171 F.3d 195,
210-11 (4th Cir. 1999). Furthermore, Gleaton’s claim of ineffective
assistance of counsel should be brought, if at all, in a proceeding
under 28 U.S.C. § 2255 (2000), because the record in this appeal does
not conclusively establish ineffective assistance of counsel. See
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
UNITED STATES v. GLEATON 3
In accordance with the requirements of Anders, we have reviewed
the entire record in this case and have found no meritorious issues for
appeal. Accordingly, we deny Gleaton’s motion to hold this case in
abeyance, deny Gleaton’s motion to relieve his appellate counsel, and
affirm Gleaton’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 peti-
tion 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED