                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4704



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TERRY MCCRAY, a/k/a Harry J. Chick,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (CR-03-162)


Submitted:   June 28, 2006                 Decided:   July 21, 2006


Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Daphne A. Burns, DAPHNE A. BURNS, L.L.C., Mount Pleasant, South
Carolina, for Appellant. Jonathan S. Gasser, Jr., United States
Attorney, Robert H. Bickerton, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Terry McCray pled guilty pursuant to a plea agreement to

conspiracy to distribute five kilograms or more of cocaine and a

quantity of marijuana, in violation of 21 U.S.C. § 846 (2000).                  He

now appeals his 120-month sentence, arguing that it violates United

States v. Booker, 543 U.S. 220 (2005), and that his attorney was

ineffective.      We affirm.

             Although McCray admitted responsibility for only 3.5

kilograms of cocaine, his probation officer prepared a presentence

report (PSR) that assigned McCray a base offense level of 32, based

on the conclusion that he was responsible for at least five

kilograms of the drug.           See U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(4) (2003).        Three levels were subtracted for acceptance

of responsibility, see USSG § 3E1.1(a), (b).               With a total offense

level   of   29   and   a   criminal    history    category    of    I,   McCray’s

guideline range was 87-108 months.             He was, however, subject to a

mandatory statutory minimum of ten years in prison.                 See 21 U.S.C.

§ 841(b)(1)(A) (West 1999 & Supp. 2006).                   The district court

sentenced McCray to 120 months in prison.

             McCray     first   contends   on     appeal    that    his   sentence

violates the Sixth Amendment under Booker, Blakely v. Washington,

542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466

(2000), because it was based on a fact--that he was responsible for

five kilograms or more of cocaine--found by the district court,


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rather than found by a jury or admitted by him.        Because he did not

raise this claim below, our review is for plain error.           See United

States v. Olano, 507 U.S. 725, 732 (1993).

            We discern no error in this case because the district

court did not “impose a sentence exceeding the maximum allowed

based only on facts [McCray] admitted.”             See United States v.

Evans, 416 F.3d 298, 300 (4th Cir. 2005).            Based on the fact--

responsibility for no more than 3.5 kilograms of cocaine-- McCray

admitted before adjusting the guideline range for acceptance of

responsibility, see id. at 300 n.4, McCray’s total offense level

would have been 30, and his guideline range would have been 97-121

months.     Because his sentence of 120 months does not exceed the

maximum authorized by the facts he admitted, there was no Sixth

Amendment violation.     See id. at 300.

            McCray also contends that defense counsel was ineffective

for not raising the Sixth Amendment issue. Ordinarily, a defendant

must raise a claim of ineffective assistance in a 28 U.S.C. § 2255

(2000) motion, rather than on direct appeal, unless it conclusively

appears from the record that counsel was ineffective.               United

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

has   not   made   the   required   showing   and    may   not   raise   his

ineffectiveness claim on appeal.

            We accordingly affirm. We dispense with oral argument

because the facts and legal contentions are adequately presented in


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the materials before the court and argument would not aid the

decisional process.

                                                     AFFIRMED




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