UNITED STATES of America, Plaintiff-Appellee, v. Willie Pernell BURTON, Defendant-Appellant, 26 F. App'x 351

OPINION PER CURIAM. Willie Pernell Burton seeks to appeal the district court’s order denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.2001). We have reviewed the record and the district court’s opinion and find no reversible error. As to Burton’s claim that the indictment was so defective as to render his guilty plea invalid, we find that the indictment adequately stated the elements of the offense (prior to the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2001)), and Burton’s co-conspirators did not need to be named in the indictment.

United States v. Burgos, 94 F.3d 849, 857 (4th Cir.1996) (en banc); United States v. American Waste Fibers Co., 809 F.2d 1044, 1046 (4th Cir.1987). Further, as the district court correctly concluded, Burton’s Apprendi challenges are not cognizable in the collateral review proceeding. United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir.), cert. denied, — U.S. —, 122 S.Ct. 573, — L.Ed.2d — (2001). Burton failed to establish that counsel’s performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Additionally, as the district court noted, the Government is not required to file a notice pursuant to 21 U.S.C. § 851 (1994) where, as here, any increase in sentence was due to the calculations under the Sentencing Guidelines. United States v. Foster, 68 F.3d 86, 89 (4th Cir.1995). Finally, the district court did not err in declining to conduct an evidentiary hearing. United States v. Yearwood, 863 F.2d 6, 7 (4th Cir.1988). Accordingly, we deny a certificate of appealability and dismiss the appeal substantially on the reasoning of the district court. See United States v. Burton, Nos.

CR-00-16-HO; CA-01-299-5-H (E.D.N.C. Aug. 7, 2001). We dispense 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. DISMISSED.