UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5132
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY EUGENE PARKER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-05-158)
Submitted: March 29, 2006 Decided: April 14, 2006
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Kearns Davis, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jimmy Eugene Parker, Jr. appeals his conviction for
conspiracy to distribute cocaine base in violation of 21 U.S.C.
§§ 841(b)(1)(B) and 846 (2000), discharge of a firearm during a
drug conspiracy in violation of 18 U.S.C. § 924(c)(1)(A)(iii)
(2000), and felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1) (2000). He received a 324 month prison
sentence. Parker’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying there are no
meritorious issues for appeal. Parker has filed a pro se
supplemental brief claiming actual innocence, ineffective
assistance of counsel, and improper calculation of the sentencing
guidelines. Finding no reversible error, we affirm.
Parker claims that he is actually innocent of discharging
a firearm, despite his guilty plea pursuant to a plea agreement.
Because Parker did not raise this issue below, we review it for
plain error. United States v. Olano, 507 U.S. 725, 732-34 (1993).
Parker admitted to police that he used a pistol to fire two bullets
into the car of an associate who held drugs and money for him. The
district court properly found a factual basis for the guilty plea
and that he pled guilty knowingly and intelligently. As Parker’s
guilty plea was valid, he waived all antecedent nonjurisdictional
defects, including claims of actual innocence. Tollett v.
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Henderson, 411 U.S. 258, 266-67 (1973); United States v. Willis,
992 F.2d 489, 490 (4th Cir. 1993).
Parker claims his counsel was ineffective in negotiating
the plea agreement and advising him to accept the plea agreement.
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). Our review of the record reveals that Parker
has failed to meet the high burden necessary to raise ineffective
assistance of counsel on direct appeal.
Parker claims the district court did not properly
calculate his sentencing guideline range by using two prior
felonies to enhance his sentence as a career offender. Parker met
the requirements of a career offender under U.S. Sentencing
Guidelines Manual § 4B1.1 (2005), because he had a prior conviction
for conspiracy to commit armed robbery and a prior conviction for
assault inflicting serious bodily injury, both punishable by a term
of imprisonment of over a year. The district court properly
calculated Parker’s sentence.
Parker finally claims that his sentence was unreasonable.
After the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), a sentencing court is no longer bound by the range
prescribed by the sentencing guidelines. See United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in determining
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a sentence post-Booker, sentencing courts are still required to
calculate and consider the guideline range prescribed thereby as
well as the factors set forth in 18 U.S.C. § 3553(a) (2000). Id.
We will affirm a post-Booker sentence if it is both reasonable and
within the statutorily prescribed range. Hughes, 401 F.3d at 546-
47.
As Parker’s 324 month prison sentence was within the
properly calculated sentencing guideline range of 308 to 355
months’ imprisonment, it is presumptively reasonable. United
States v. Green, 436 F.3d 449 (4th Cir. 2006). Parker has not
rebutted that presumption as the district court appropriately
treated the guidelines as advisory, calculated and considered the
guideline range, and weighed the relevant § 3553(a) factors.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Parker’s conviction 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
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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