                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4767


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

HOWARD LAMONT BLUE,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:10-cr-00208-F-1)


Submitted:   July 15, 2012                 Decided:   July 30, 2013


Before NIEMEYER, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Assistant United States Attorney, Yvonne V.
Watford-McKinney, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Howard Lamont Blue pleaded guilty in the Eastern District

of North Carolina to one count of conspiring to distribute fifty

grams or more of cocaine base (“crack”), in violation of 21

U.S.C. § 846; three counts of distributing fifty grams or more

of crack, in violation of 21 U.S.C. § 841(a)(1); and one count

of possessing fifty grams or more of crack with the intent to

distribute the same, in violation of 21 U.S.C. § 841(a)(1).                          On

September 11, 2012, the district court sentenced Blue to 188

months in prison.            In this appeal, Blue contends that (1) his

court-appointed counsel was ineffective; (2) the drug quantities

used   in    calculating      his   advisory      Sentencing    Guidelines         range

were unsupported by reliable evidence; (3) the Guidelines’ 18:1

ratio of crack to powder cocaine violates the Constitution; and

(4) the court violated his constitutional rights by warning him

that     false    denials     of    relevant      conduct   identified        in    the

presentence investigation report (the “PSR”) would cause him to

lose credit for acceptance of responsibility.                     We reject each

contention and affirm.

       An    ineffective       assistance      of     counsel     claim       is    not

cognizable on direct appeal of a criminal judgment unless “the

record conclusively establishes ineffective assistance.”                       United

States      v.   Baptiste,    596   F.3d   214,     216   n.1   (4th   Cir.    2010).

Where ineffective assistance is not conclusively established by

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the record, “the proper avenue for such claims is a 28 U.S.C.

§ 2255 motion filed with the district court.”           Id.       Because the

record in this case does not conclusively establish that the

performance of Blue’s counsel “fell below an objective standard

of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688

(1984), we decline to consider this issue on direct appeal.               See

United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). *

     We     must   also   reject   Blue’s   assertion      that    the   drug

quantities identified in the PSR and adopted by the district

court    were   unsupported   by   competent   evidence.      The     court’s

calculation of the quantity of drugs attributable to Blue for

sentencing purposes is a factual determination that we review

only for clear error.         See United States v. Randall, 171 F.3d

195, 211 (4th Cir. 1999).          At sentencing, the government was

obliged to prove those drug quantities by a preponderance of the

evidence.       See United States v. Bell, 667 F.3d 431, 441 (4th

Cir. 2011).        When drug quantities cannot be proven by actual

seizures or other direct evidence, the government must present

evidence from which the sentencing court may “approximate the

     *
       Blue has requested, alternatively, that we appoint counsel
to assist in the preparation of a petition under 28 U.S.C.
§ 2255. Like Blue’s claim of ineffective assistance of counsel,
this request is premature. Pursuant to 18 U.S.C. § 3006A(a)(2),
a United States magistrate judge or district court may appoint
counsel to financially eligible persons seeking relief under
§ 2255, if the interests of justice so require.



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quantity.”      Id.     (internal    quotation           marks    omitted).       In   so

doing,   the   court    is   permitted        to   rely     on    direct   or    hearsay

testimony of lay witnesses as to the quantities attributable to

the defendant.     See id.     Here, the drug quantities attributed to

Blue were derived from a post-arrest statement that he made to

the    arresting   officer     and    from         a     statement       made    to    law

enforcement by a co-conspirator who regularly purchased drugs

from   Blue.     The    district    court      credited      those       statements    at

sentencing, and did not clearly err in so doing.

       Blue’s constitutional challenge to the 18:1 ratio of crack

to powder cocaine likewise must fail.                  Because the issue was not

raised below, it is reviewed only for plain error.                          See United

Stats v. Olano, 507 U.S. 725, 732 (1993); Fed. R. Crim. P.

52(b).    Even before Congress passed the Fair Sentencing Act,

which reduced the crack to powder ratio from 100:1 to 18:1, see

Dorsey   v.    United    States,    132   S.       Ct.    2321,    2329    (2012),     we

repeatedly      affirmed     the     constitutionality              of     the    higher

sentencing ratio against both equal protection and due process

challenges.      See United States v. Perkins, 108 F.3d 512, 518

(4th Cir. 1997); United States v. Jones, 18 F.3d 1145, 1151 (4th

Cir. 1994); United States v. Bynum, 3 F.3d 769, 774-75 (4th Cir.

1993).    To the extent that Blue seeks reconsideration of those

decisions, a panel of this court cannot overrule the decision of



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a prior panel.              See United States v. Simms, 441 F.3d 313, 318

(4th Cir. 2006).

     Finally,          we    reject    Blue’s       contention     that    the    district

court violated his Fifth Amendment rights when it informed him

that false denials of relevant conduct identified in the PSR

would cause him to lose credit for acceptance of responsibility.

Section     3E1.1       of    the     Guidelines       provides     for     a    two-level

decrease    to     a    defendant’s        offense     level     “[i]f     the   defendant

clearly     demonstrates            acceptance        of    responsibility       for    his

offense.”        USSG § 3E1.1(a).           At sentencing, Blue objected to the

drug quantities attributed to him in the PSR by (1) denying

having    made     any      statement      to   the    arresting    officer,      and   (2)

seeking     to     discredit        the     statement       of   his     co-conspirator.

Before hearing evidence on those objections, the court informed

Blue that, in the event his factual denials were found to be

false and his objections thereby overruled, he would lose the

two-level reduction for acceptance of responsibility.                            The court

left Blue with the choice of pursuing his objections, which Blue

then elected to withdraw.

     The district court applied the acceptance of responsibility

provision    in        accordance      with     the    application       notes    thereto,

which     provide        that    “a       defendant        who   falsely     denies,    or

frivolously contests, relevant conduct that the court determines

to be true has acted in a manner inconsistent with acceptance of

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responsibility.”          USSG § 3E1.1 cmt. n.1.           Blue’s constitutional

challenge     to   that    provision      must    fail   as   contrary   to   United

States v. Frazier, 971 F.2d 1076, 1082 (4th Cir. 1992), in which

we concluded that “the Fifth Amendment is not offended” by the

choice imposed upon defendants by USSG § 3E1.1.

     Pursuant to the foregoing, we affirm the judgment of the

district    court.        We     dispense    with   oral   argument   because      the

facts   and   legal    contentions          are   adequately   presented      in   the

materials     before      this    court     and   argument    would   not   aid    the

decisional process.



                                                                            AFFIRMED




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