UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4424
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAY LEE CASON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-03-5)
Submitted: June 30, 2005 Decided: July 26, 2005
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jennifer W. Moore, THE MOORE LAW FIRM, Asheville, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Donald D. Gast, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ray Lee Cason appeals his jury conviction and 444-month
sentence for bank robbery by use of a dangerous weapon, in
violation of 18 U.S.C. § 2113(d) (2000); possession of a firearm in
relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii)
(2000); and being a felon in possession of a firearm, 18 U.S.C.
§ 922(g) (2000). Counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that, in her
view, there are no meritorious grounds for appeal. Counsel and
Cason have filed supplemental briefs raising additional issues. We
affirm Cason’s convictions and sentence.
Counsel raises as a potential issue that Cason’s trial
counsel rendered ineffective assistance. To succeed in a claim of
ineffective assistance on direct appeal, a defendant must show
conclusively from the face of the record that counsel provided
ineffective representation. See United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999). Because the record does not
conclusively establish counsel’s ineffectiveness, we conclude that
Cason’s claims must be brought, if at all, in a proceeding under 28
U.S.C. § 2255 (2000).
In his pro se supplemental brief, Cason maintains that
the district court violated his Sixth Amendment rights by imposing
a sentence enhanced by a designation of career offender status on
facts not alleged in the indictment, not admitted by him, and not
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found by a jury beyond a reasonable doubt. Specifically, Cason
claims that the district court’s finding that his prior convictions
qualified as crimes of violence for determining his career offender
status, under U.S. Sentencing Guidelines Manual § 4B1.2 (2003),
constituted impermissible judicial fact-finding under United
States v. Booker, 125 S. Ct. 738 (2005). However, we conclude from
the record that Cason has “no legitimate defense to the career
offender designation.” United States v. Harp, 406 F.3d 242, 247
(4th Cir. 2005).
Cason also claims that even if the district court did not
err in designating him a career offender, it erred in failing to
treat the guidelines as advisory. Because this objection was not
raised in the district court, we review for plain error. See Fed.
R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993).
Although the district court committed error that was
plain in treating the guidelines as mandatory, see United States v.
Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005), Cason cannot
demonstrate that the error in imposing his sentence under a
mandatory guidelines scheme affected his substantial rights.
Therefore, the sentence is not plainly erroneous in light of
Booker. Neither is there any indication that Cason’s sentence was
unreasonable; thus, we conclude from the record that Cason’s
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sentencing challenge lacks merit. See United States v. White, 405
F.3d 208, 224 (4th Cir. 2005).
As required by Anders, we have examined the entire record
in this case and found no error. Accordingly, we affirm Cason’s
convictions and sentence and deny his motion to relieve and
substitute counsel. This court requires that counsel inform Cason,
in writing, of his right to petition the Supreme Court of the
United States for further review. If Cason requests that a
petition be filed, but counsel believes that such a petition would
be frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the Cason. 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.
AFFIRMED
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