                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4075



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


BRIAN LENARD RANDOLPH,

                                              Defendant - Appellant.



                            No. 04-4173



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANTHONY ALLEN LEMAY,

                                              Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-02-105)


Submitted:   September 13, 2005           Decided:   October 26, 2005


Before WILLIAMS, KING, and SHEDD, Circuit Judges.
Dismissed in part, affirmed in part, vacated in part, and remanded
by unpublished per curiam opinion.


Andrew B. Banzhoff, Asheville, North Carolina, for Appellant Brian
Lenard Randolph; Aaron E. Michel, Charlotte, North Carolina, for
Appellant Anthony Allen Lemay. Gretchen C. F. Shappert, United
States Attorney, Thomas R. Ascik, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:

      Appellants Anthony Allen Lemay and Brian Lenard Randolph seek

relief from their convictions and sentences in the Western District

of   North   Carolina   for   conspiring   to   possess   with   intent   to

distribute cocaine base, in contravention of 21 U.S.C. § 846.

Lemay makes five contentions on appeal:            (1) that the district

court improperly enhanced his sentence based on facts not admitted

in   connection   with    his   guilty     plea;   (2)    that   the   court

unconstitutionally required him to choose between his right to

counsel and his right to a trial; (3) that the court erred in

denying his request for the appointment of a new lawyer; (4) that

his counsel was constitutionally ineffective; and (5) that he is

entitled to a new trial because the transcript of the hearing on

his lawyer’s motion to withdraw is unavailable.           Randolph, on the

other hand, makes two contentions in his separate appeal: (1) that

the charges against him should have been dismissed because 21

U.S.C. § 841, the statute governing the quantity of cocaine base

attributable to him, is facially unconstitutional; and (2) that the

court improperly enhanced his sentence based on facts not admitted

in connection with his guilty plea.

      As explained below, we dismiss the first three claims raised

in Lemay’s appeal because they are barred by the appeal waiver

contained in his plea agreement, we dismiss Lemay’s fourth claim

because it does not conclusively appear from the record that his


                                    3
counsel was ineffective, and we affirm on his fifth claim because

he cannot demonstrate that specific prejudice resulted from the

unavailability of the transcript of the hearing on his lawyer’s

motion   to   withdraw.   We   reject   Randolph’s   challenge   to   the

constitutionality of 21 U.S.C. § 841, but we vacate his sentence

and remand for further proceedings.



                                  I.

     On December 2, 2002, Lemay, Randolph, and others were charged

by the grand jury with participating in a drug conspiracy, in

violation of 21 U.S.C. § 846.     As spelled out in the indictment,

the unlawful activity constituting the object of the conspiracy was

an effort to possess with intent to distribute fifty grams or more

of cocaine base, in violation of 21 U.S.C. § 841.         The relevant

facts relating to the respective appeals of Lemay and Randolph

diverge, and we present those facts separately.



                                  A.

     On December 18, 2002, the district court appointed Reid G.

Brown to represent Lemay.      On February 13, 2003, Brown filed a

motion to withdraw as Lemay’s counsel.         In his motion, Brown

asserted that Lemay had been “abusive, insulting and would not

communicate with counsel,” that Lemay “disagreed with counsel’s

suggestions and recommendations,” and that Lemay had indicated to


                                   4
a third party that his lawyer was incompetent. The court conducted

a hearing on the motion, but the transcript of that proceeding is

not in the record.1

     By Order of February 21, 2003, the district court denied

Brown’s motion to withdraw. In so ruling, the court concluded that

Brown and his assistant had, inter alia, spent approximately twenty

hours reviewing discovery, and they had met with Lemay to discuss

his defense on six different occasions.            Only when Brown advised

Lemay that he faced a potential sentence of life imprisonment if he

proceeded to trial did Lemay express dissatisfaction with Brown’s

services.     When the court asked Lemay to respond to the motion,

Lemay simply asserted that he wanted a different lawyer because he

did not like the advice he had received from Brown.          Based on these

facts, the court concluded that Lemay’s dissatisfaction with Brown

derived more from Lemay’s dislike for the advice he had received

than from any incompetence or ineffectiveness on Brown’s part. The

court also found the motion to be untimely because it was filed

only a few weeks before Lemay’s trial was scheduled to begin.           The

court advised Lemay that he could either proceed pro se, with Brown

acting   as   his   standby   counsel,   or   he    could   continue   being




     1
      It is unclear what happened to the record or transcript of
the hearing on Brown’s motion to withdraw. It is possible that no
record of the hearing was made, or that a record was made and
subsequently lost.   The absence of a transcript of the hearing
forms part of the basis of Lemay’s appeal.

                                    5
represented by Brown.           Lemay choose to continue being represented

by Brown.

     On February 24, 2003, Lemay entered into a plea agreement with

the Government by which he agreed to plead guilty to the conspiracy

charge in the indictment. By that plea agreement Lemay waived “the

right to contest either the conviction or the sentence in any

direct appeal or other post-conviction action,” excluding only

claims of ineffective assistance of counsel and prosecutorial

misconduct.       On February 28, 2003, the court accepted Lemay’s

guilty plea and found that he had entered into the plea agreement

knowingly and voluntarily.           In responding to the court in the plea

proceedings, Lemay asserted that he was satisfied with the services

of Brown as his counsel.

     On March 18, 2003, Lemay filed a motion requesting release on

bond on the ground that his mother was terminally ill with brain

cancer.      On   March     28,    2003,    the    court    released      Lemay    with

electronic monitoring on a $10,000 unsecured bond.                        On July 16,

2003, he absconded and was not apprehended until February 16, 2004.

Lemay’s original presentence report (“PSR”) recommended an adjusted

offense   level    of     39,   which   combined     with    a    criminal    history

category of IV yielded a sentencing range of thirty years to life.

The revised and final PSR, however, recommended an adjusted offense

level   of   43   (the     highest      possible    offense       level    under    the

Guidelines),      which    yielded      a   mandatory      life    sentence.        The


                                            6
increased offense level resulted from a two-level enhancement for

absconding and the loss of a three-level reduction for acceptance

of responsibility.

       On    February   23,    2004,     Lemay’s    sentencing     hearing     was

conducted.     Upon learning that Brown had not had an opportunity to

meet with Lemay prior to the hearing, the sentencing court recessed

to allow Brown and Lemay to consult.               Lemay initially requested

that Brown seek a continuance of the hearing so that they could

properly respond to the modifications to the PSR.               Brown, however,

was of the view that the PSR modifications were “appropriate.”

When   the    sentencing      court    directly    asked   Lemay   for   reasons

justifying a continuance of the sentencing proceedings, Lemay

offered none.     At no point during the sentencing hearing did Brown

challenge the modifications made in the PSR.               At the conclusion of

the sentencing hearing, the court imposed a sentence of life

imprisonment, in accordance with the PSR.



                                         B.

       The   relevant   facts    surrounding       Randolph’s   appeal   are    as

follows.      On February 28, 2003, Randolph, like Lemay, pleaded

guilty to the conspiracy charge.              Unlike Lemay, however, Randolph

did not enter into a plea agreement with the Government; rather,

his plea was a “straight-up” guilty plea, without any promises from

or agreement with the Government.


                                         7
     On    August   5,   2003,    Randolph’s    PSR    was   submitted   to    the

sentencing    court.      Based    on   two    prior    controlled   substance

convictions and a finding that the conspiracy offense was committed

while Randolph was on probation, the PSR assigned Randolph four

criminal history points, which translated into a criminal history

category of III.     Based on the fifty grams of cocaine base alleged

in   the    indictment    (and    admitted     in   Randolph’s    guilty      plea

proceedings), his base offense level was 32, which combined with

his criminal history category yielded a sentencing range of 151 to

188 months of imprisonment.         Randolph’s PSR, however, attributed

over thirty kilograms of cocaine base to him and thus assigned a

base offense level of 38.         At his sentencing hearing on November

20, 2003, the court attributed 1.5 kilograms of cocaine base to

Randolph, yielding an offense level of 35 and a sentencing range of

210 to 262 months of imprisonment.            The court sentenced Randolph,

without any objection on constitutional grounds, to 210 months of

imprisonment.



                                        C.

     Both Lemay and Randolph have filed timely appeals to this

Court.     We possess jurisdiction over their appeals pursuant to 28

U.S.C. § 1291.




                                        8
                                 II.

     We review de novo whether a criminal defendant has effectively

waived his right of appeal.    See United States v. Blick, 408 F.3d

162, 168 (4th Cir. 2005).     A claim of ineffective assistance of

counsel is cognizable on direct appeal only if it “conclusively

appears” from the record that counsel failed to provide effective

representation.     See United States v. Russell, 221 F.3d 615, 619

n.5 (4th Cir. 2000).    We review de novo a claim that a statute is

unconstitutional.     See United States v. Martinez, 277 F.3d 517,

534 n.15 (4th Cir. 2002).    And we review for plain error any claim

not properly preserved and raised for the first time on appeal.

See United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).



                                 III.

                                  A.

     Lemay makes five contentions on appeal: (1) that the district

court improperly enhanced his sentence based on facts not admitted

in connection with his guilty plea, in violation of the Sixth

Amendment; (2) that the court unconstitutionally required him to

choose between his right to counsel and his right to a trial; (3)

that the court erred in denying him the appointment of a new

lawyer; (4) that his counsel was constitutionally ineffective; and

(5) that he is entitled to a new trial because the transcript of

the hearing on his lawyer’s motion to withdraw is unavailable. The


                                  9
Government asserts that, by the plea agreement, Lemay waived his

right to appeal all of these claims except the contention that he

was   denied   the   effective   assistance   of   counsel.    It   further

contends that we should defer Lemay’s ineffective assistance claim

for subsequent habeas corpus proceedings because it does not

“conclusively appear” from the record that Lemay’s counsel was

ineffective.    We address each of these contentions in turn.

                                    1.

      We will enforce an appeal waiver to preclude claims being

asserted on appeal only if (1) the waiver is valid, and (2) the

claims asserted on appeal fall within the scope of the waiver.           See

United States v. Attar, 38 F.3d 727, 731-32 (4th Cir. 1994).            Lemay

does not contest the validity of his appeal waiver; thus we inquire

only into whether his claims fall within the scope of his waiver.

      In connection with his plea agreement, Lemay waived “the right

to contest either the conviction or sentence in any direct appeal

or other post-conviction action,” reserving only the right to

appeal   claims      of   ineffective    assistance     of    counsel    and

prosecutorial misconduct.        By its terms, Lemay’s appeal waiver is

broad and appears to cover all of Lemay’s appellate claims save his

claim of ineffective assistance of counsel.           This Court has long

recognized such appeal waivers as being generally enforceable, see

Blick, 408 F.3d at 168 n.4 (citing multiple decisions), but we have

identified a category of errors that fall outside the scope of such


                                    10
waivers because they “could not have been reasonably contemplated

when the plea agreement was executed,” id. at 172; see also United

States v. Broughton-Jones, 71 F.3d 1143, 1146-47 (4th Cir. 1995)

(concluding that appeal waiver did not cover claim that restitution

order was not authorized by statute when restitution order was

entered after waiver was executed); Attar, 38 F.3d at 731-33

(concluding    that   appeal     waiver        did    not   encompass      claim     of

deprivation of right to counsel).              Our task here, therefore, is to

determine whether any of the alleged errors asserted in Lemay’s

appeal could not have been reasonably contemplated when he waived

his appeal rights.

      Lemay   first   asserts       that   the       district    court     improperly

enhanced his sentence beyond that which the facts admitted in

connection with his guilty plea would support, in contravention of

his   Sixth   Amendment     right    to    a   jury     trial.      This     claim   is

foreclosed by our decision in Blick, which held that a waiver of

the   right   to   appeal   a   sentence        below    the     statutory    maximum

precludes an appeal asserting that a judicially enhanced sentence

contravenes the defendant’s Sixth Amendment right to a jury trial.

408 F.3d at 164.       The appeal waiver executed by Lemay is only

different from the one underlying our Blick decision in that it

sweeps more broadly.        As a result, Lemay’s Sixth Amendment claim

falls within the scope of, and is thus barred by, his appeal

waiver.


                                          11
     Lemay’s contention regarding the district court’s failure to

appoint new counsel for him, and his contention that the court

forced him to choose between representation by counsel and his

right to a trial, each arise from the hearing of February 21, 2003,

on Brown’s motion to withdraw.            This hearing occurred three days

before Lemay entered into the plea agreement by which he waived his

right of appeal. Given that the alleged errors occurred before his

waiver — and that he contested them at the time — it is clear that

Lemay could have reasonably contemplated these two alleged errors,

and that he actually knew of them.             Therefore, these claims fall

within the scope of the appeal waiver and they are barred.

                                         2.

     Lemay’s ineffective assistance of counsel claim is expressly

excepted from the appeal waiver contained in his plea agreement.

Lemay’s appeal in this respect is therefore properly before us.

Nevertheless, because it does not conclusively appear from the

record that his counsel was ineffective, we need not reach and

assess the merits of his ineffective assistance claim.

     We have consistently recognized that, because a claim of

constitutionally      ineffective     assistance         of   counsel   is    more

appropriately reviewed on a full record, the proper proceeding in

which   to   pursue   such   a   claim    is   not   a   direct   appeal     but   a

collateral proceeding under 18 U.S.C. § 2255. See United States v.

DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).               As a result, we will


                                         12
entertain a claim of ineffective assistance on direct appeal only

if it “conclusively appears” from the record that the defendant’s

counsel was ineffective.       See United States v. Russell, 221 F.3d

615, 619 n.5 (4th Cir. 2000). Although Lemay’s trial counsel could

perhaps have mounted a more protracted defense on Lemay’s behalf,

there is evidence that Lemay was dissatisfied with his attorney

simply because he disliked the advice being provided.           Given this

conflict, it does not conclusively appear from the record that

Lemay’s trial lawyer was ineffective.            We therefore decline to

address the merits of his ineffective assistance claim in this

appeal.2

                                      3.

     Finally, Lemay contends that he is entitled to a new trial

because a transcript of the hearing on his attorney’s motion to

withdraw   is   unavailable.     He    asserts   that   he   needs   such   a

transcript to support both his claim that the district court erred

in denying his request for the appointment of a new lawyer and his

claim that his counsel was constitutionally ineffective.               Even

assuming that Lemay could not have “reasonably contemplated” the

absence of a transcript of the proceeding on his lawyer’s motion to

withdraw, see Blick, 408 F.3d at 172, he is unable to demonstrate


     2
      Our conclusion that we may not review Lemay’s ineffective
assistance claim, of course, is not “intended to prejudice, or
prejudge, in any way [his] right to apply for relief in a Section
2255 proceeding, should he choose to invoke such remedy.” United
States v. Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970).

                                      13
that the unavailability of the transcript “specifically prejudices

his appeal,” see United States v. Huggins, 191 F.3d 532, 536 (4th

Cir. 1999) (explaining that unavailability of transcript does not

entitle defendant to new trial unless he can demonstrate specific

prejudice).

       As explained above, Lemay’s claim that the district court

erroneously failed to appoint him a new lawyer is barred by the

appeal waiver in the plea agreement. Thus, the transcript would be

of no help to Lemay on this point.           Furthermore, because he does

not assert that his attorney was ineffective at the hearing, but

only   contends   his   lawyer   was   ineffective    “leading    up    to   the

hearing” and “after the hearing,” Lemay is unable to demonstrate

that    the   unavailability     of    the    transcript    prejudices       his

ineffective    assistance    claim.         Appellant’s    Br.   at    47,   48.

Accordingly, Lemay cannot demonstrate that the unavailability of

the transcript specifically prejudices his appeal, and we must deny

this claim as well.



                                       B.

       Randolph makes two contentions on appeal:             (1) that he is

entitled to a dismissal of the indictment against him because the

statutory object of the conspiracy, 21 U.S.C. § 841, is facially

unconstitutional; and (2) that he is entitled to resentencing

because the district court improperly enhanced his sentence beyond


                                       14
that   which    the    facts     admitted     in    his    plea    proceedings      would

support.     Because we reject Randolph’s first contention, we are

obliged to affirm his conviction.                    However, because the court

plainly erred in enhancing Randolph’s sentence, we vacate his

sentence and remand for resentencing.

       Randolph first asserts that, because the sentencing scheme of

21 U.S.C. § 841 depends solely on the quantity of controlled

substances      determined       by     the    sentencing         judge,    §   841   is

unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004),

and Apprendi v. New Jersey, 530 U.S. 466 (2000).                    As the Government

points     out,       however,     we     have      heretofore          sustained     the

constitutionality of § 841 in the face of an Apprendi challenge.

See United States v. McAllister, 272 F.3d 228, 233 (4th Cir. 2001)

(upholding § 841 because statute is silent on process by which drug

quantity is to be determined).            We do not (and cannot) deviate from

that precedent here.

       Finally,       Randolph     maintains        that     he    is      entitled   to

resentencing because the district court plainly erred in imposing

a sentence greater than that which the facts admitted by him in his

plea proceedings would support.                    As explained above, Randolph

admitted in his plea proceedings only to conspiring to possess with

intent to distribute at least fifty grams of cocaine base, which

yields   a     sentencing      range    of    151    to    188    months     under    the

Guidelines. The sentencing court, however, attributed at least 1.5


                                          15
kilograms of cocaine base to Randolph, yielding a sentencing range

of 210 to 262 months.      The court then sentenced Randolph to 210

months of imprisonment.     Because the sentence imposed on Randolph

was greater than that which the admitted facts would support, its

imposition contravened Randolph’s Sixth Amendment right to a jury

trial.    See United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005).    Pursuant to our decision in Hughes, such a Sixth Amendment

error in sentencing is plainly erroneous. See id. (concluding that

sentence imposed in contravention of defendant’s Sixth Amendment

right to jury trial constitutes plain error).3



                                   IV.

      Pursuant to the foregoing, we dismiss Lemay’s appeal in part

but   otherwise   affirm   his   conviction.   We   affirm   Randolph’s

conviction, but vacate his sentence and remand for resentencing.



                                 DISMISSED IN PART, AFFIRMED IN PART,
                                        VACATED IN PART, AND REMANDED




      3
      As in Hughes, “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time of [Randolph’s] sentencing.” 401 F.3d at 545 n.4.

                                    16
