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United States v. Floyd , 16 F. App'x 189 ( 2001 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                             No. 00-4817
HASSON LEWIS FLOYD,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-99-5)
Submitted: July 24, 2001
Decided: August 6, 2001
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Theodore M. Cooperstein, THEODORE M. COOPERSTEIN, P.C.,
Washington, D.C., for Appellant. Robert J. Conrad, Jr., United States
Attorney, David A. Brown, Assistant United States Attorney, Char-
lotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. FLOYD
OPINION
PER CURIAM:
Hasson Lewis Floyd appeals his conviction and sentence after
being convicted in a jury trial of aiding and abetting bank robbery, in
violation of
    18 U.S.C.A. § 2113
    (a) (West 2000) and
    18 U.S.C. § 2
    (1994); aiding and abetting larceny from a bank, in violation of
    18 U.S.C.A. § 2113
    (b) (West 2000) and
    18 U.S.C. § 2
     (1994); aiding and
abetting assault with a weapon during bank robbery, in violation of
    18 U.S.C.A. § 2113
    (d) (West 2000) and
    18 U.S.C. § 2
     (1994); dis-
charge of a firearm during bank robbery, in violation of
    18 U.S.C.A. § 924
    (c)(1)(a)(iii) (West 2000); and assault on an officer inflicting
injury, in violation of
    18 U.S.C.A. § 111
     (West 2000). On appeal,
Floyd argues the facts predicating his
    18 U.S.C.A. § 3559
    (c) enhance-
ment should have been submitted to a jury and proven beyond a rea-
sonable doubt, an assault against a county jailor acting within a
federal contract does not qualify under
    18 U.S.C.A. § 111
    , and his
counsel provided ineffective assistance. Finding no reversible error,
we affirm.
Pursuant to a government information, the district court found
Floyd met the requirements of
    18 U.S.C.A. § 3559
    (c) and sentenced
him to two consecutive terms of life imprisonment. Under Apprendi
v. New Jersey,
    530 U.S. 466
     (2000), any fact other than a prior con-
viction that increases the penalty for a crime beyond the statutory
maximum must be submitted to a jury and proved beyond a reason-
able doubt. Apprendi,
    530 U.S. at 490
    . The Court recognized its deci-
sion in Almendarez-Torres v. United States,
    523 U.S. 224
     (1998), in
which the fact of a prior conviction increased the sentence beyond the
statutory maximum, created an exception to the general rule.
Apprendi,
    530 U.S. at 489-90
    .
Contrary to Floyd’s assertions, we find Almendarez-Torres was not
overruled by Apprendi.
    Id.
     Accordingly, we reject this claim. See
Columbia Union Coll. v. Clarke,
    159 F.3d 151
    , 158 (4th Cir. 1998)
(stating lower courts should not presume the Supreme Court has over-
ruled one of its cases by implication; courts must follow case law that
directly controls unless clearly overruled by subsequent Supreme
Court case).
UNITED STATES v. FLOYD                        3
Floyd next claims his conviction of
    18 U.S.C.A. § 111
     is faulty
because a county jailor acting under a federal contract should not be
chargeable within the statute. Because this argument was rejected in
United States v. Murphy,
    35 F.3d 143
    , 145-47 (4th Cir. 1994), we
again reject such a claim here.
Lastly, Floyd contends he received ineffective assistance of coun-
sel at trial. Claims of ineffective assistance of counsel are generally
not cognizable on direct appeal. See United States v. King,
    119 F.3d 290
    , 295 (4th Cir. 1997). Rather, to allow for adequate development
of the record, Floyd must bring his claim in a motion under
    28 U.S.C.A. § 2255
     (West Supp. 2000). See United States v. Hoyle,
    33 F.3d 415
    , 418 (4th Cir. 1994). An exception exists when the record
conclusively establishes ineffective assistance. See King,
    119 F.3d at 295
    . Because review of the record in this appeal does not conclusively
establish ineffective assistance of counsel, we conclude Floyd’s claim
should be brought in a § 2255 proceeding.
We therefore affirm Floyd’s convictions and sentences. We dis-
pense 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