UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROGER D. BURRESS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-03-24)
Submitted: March 27, 2006 Decided: April 18, 2006
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Herbert L. Hively, II, Hurricane, West Virginia, for Appellant.
Charles T. Miller, Acting United States Attorney, Joshua C. Hanks,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Roger Burress pled guilty, pursuant to a plea agreement,
to being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (2000). The district court sentenced Burress to
210 months’ imprisonment. This sentence was within the statutorily
prescribed range, see 18 U.S.C. § 924(e)(1) (2000) (prescribing
range of fifteen years’ to life imprisonment), and represented the
bottom of the range provided for by the advisory sentencing
guidelines. Burress appeals, asserting in his counseled brief that
the sentence was unreasonable. Further, Burress has filed a pro se
motion for leave to file a supplemental brief and to remove his
counsel from representation.
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. United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). In
determining a sentence post-Booker, however, 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.A.
§ 3553(a) (West 2000 & Supp. 2005). Id. We will affirm a
post-Booker sentence if it is both reasonable and within the
statutorily prescribed range. Id. at 546-47. Further, we have
stated that “while we believe that the appropriate circumstances
for imposing a sentence outside the guideline range will depend on
- 2 -
the facts of individual cases, we have no reason to doubt that most
sentences will continue to fall within the applicable guideline
range.” United States v. White, 405 F.3d 208, 219 (4th Cir.),
cert. denied, 126 S. Ct. 668 (2005); see also United States v.
Green, 436 F.3d 449, 455-56 (4th Cir. 2006).
Here, the record indicates that the district court
properly calculated the guideline range, applied the guidelines as
advisory, and considered the § 3553(a) factors. Furthermore, we
conclude the sentence was reasonable. See Green, 436 F.3d at 455-
56 (stating that a sentence imposed within the properly-calculated
sentencing guidelines range is presumptively reasonable).
We grant Burress’ motion for leave to file a pro se
supplemental brief. Upon review, we reject his claim that the
Government breached the plea agreement because the record belies
this assertion. Moreover, his challenge to his sentence under the
armed career criminal provision of the guidelines, and his
constitutional challenge to 18 U.S.C. § 924(e), are without legal
foundation. See, e.g., United States v. Thompson, 421 F.3d 278
(4th Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006); United
States v. Cheek, 415 F.3d 349, 351-54 (4th Cir.), cert. denied, 126
S. Ct. 640 (2005). We decline to consider his ineffective
assistance of counsel claim. Such claims are generally not
cognizable on direct appeal. See United States v. King, 119 F.3d
290, 295 (4th Cir. 1997). Rather, to allow for adequate
- 3 -
development of the record, a defendant must bring his claim in a
motion under 28 U.S.C. § 2255 (2000). See id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists when
the record conclusively establishes ineffective assistance. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We find
no basis here for an exception to the general rule.
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
- 4 -