UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4461
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARIUS LATRON CHANEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. H. Brent McKnight,
District Judge. (CR-03-40)
Submitted: November 2, 2005 Decided: December 20, 2005
Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott H. Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North
Carolina, for Appellant. Robert John Gleason, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darius Latron Chaney appeals his convictions and 272-
month sentence imposed following his guilty plea to robbery of a
motor vehicle by force or violence, in violation of 18 U.S.C.
§ 2119 (2000); possession of a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c)(1),(2)
(2000); and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000). Chaney’s counsel filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there were no meritorious grounds for appeal but
questioning whether the district court erred when it sentenced
Chaney as a career offender and as an armed career offender.
Chaney filed a pro se supplemental brief, raising additional
claims.
The Anders brief and Chaney’s pro se supplemental brief
were filed after Blakely v. Washington, 542 U.S. 296 (2004), and
prior to United States v. Booker, 125 S. Ct. 738 (2005). While
Chaney’s counsel makes general arguments as to the propriety of the
district court’s sentence, he does not reference either Blakely or
Booker. Because this is an Anders appeal, we nonetheless consider
the impact of those cases.
As Chaney did not assert a Blakely or Booker-type issue
in the district court, we review for plain error. See United
States v. Evans, 416 F.3d 298, 300 (4th Cir. 2005). To establish
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a Sixth Amendment error occurred during sentencing, a defendant who
entered a guilty plea must show that the district court imposed a
sentence exceeding the maximum allowed based only on the facts to
which he admitted. Id. However, this court has recognized an
exception to the general rule in that a district court may enhance
a sentence based on the “fact of a prior conviction” regardless of
whether or not it was admitted to by the defendant or found by a
jury. See United States v. Thompson, 421 F.3d 278, 282, 283-86
(4th Cir. 2005). Such enhancement will not constitute Sixth
Amendment error if the facts necessary to support the enhancement
“inhere in the fact of conviction” rather than being “extraneous to
it.” Id. at 283.
We find Chaney’s arguments regarding his sentence are
foreclosed by Thompson. Chaney does not dispute he has at least
three prior convictions qualifying as “violent felonies” and that
they were “committed on occasions different from one another.” See
18 U.S.C. § 924(e) (2000). Because the facts necessary to support
the enhancement under U.S. Sentencing Guidelines Manual
§ 4B1.4(b)(3)(B) (2002) “inhere in the fact of conviction,” there
is no error under Blakely, Booker, or their progeny. See Thompson,
421 F.3d at 283, 287 & n.5; see also United States v. Cheek, 415
F.3d 349 (4th Cir. 2005) (holding that the armed career criminal
designation based on prior convictions does not violate Booker),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 3, 2005) (No.
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05-6904); United States v. Collins, 412 F.3d 515, 521-23 (4th Cir.
2005) (holding that, when the facts are undisputed, the application
of the career offender enhancement falls within the exception for
prior convictions). As required by Anders, we have throughly
reviewed the record for any potential sentencing claims and
conclude that Chaney is not entitled to relief under Booker.
With regard to the remaining issues raised in Chaney’s
pro se supplemental brief, claims of ineffective assistance of
counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). To allow for
adequate development of the record, claims of ineffective
assistance generally should be raised in a proceeding commenced
pursuant to 28 U.S.C. § 2255 (2000). United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). After comprehensive inquiry, the
district court properly concluded that Chaney’s plea was knowing
and voluntary. Moreover, there is no reference to Chaney’s other
claim that his right to self-incrimination was violated. In fact,
Chaney offers nothing but his bare allegations in support of this
contention. Because the record does not conclusively establish
counsel was ineffective in this regard, we decline to review this
claim on direct appeal since the claim should be brought in a
§ 2255 action.
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In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we affirm Chaney’s
convictions and sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client 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 client.
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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