UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4925
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BARRY RAY MILES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (CR-05-10)
Submitted: April 24, 2006 Decided: May 16, 2006
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Barry Ray Miles appeals his conviction for conspiracy to
distribute cocaine base in violation of 21 U.S.C. § 846 (2000), and
the resulting 235-month sentence of imprisonment. Miles’s attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), certifying that there are no meritorious issues for
appeal, but identifying eleven possible issues. Miles, informed of
his right to file a pro se supplemental brief, has not done so. We
affirm.
In the first two issues, counsel generally challenges the
district court’s compliance with Fed. R. Crim. P. 11 in accepting
Miles’s guilty plea. Our review of the transcript of the Rule 11
hearing leads us to conclude that the district court fully complied
with the requirements of Rule 11. We therefore find no plain error
in the court’s acceptance of Miles’s guilty plea.
Miles next asserts four issues challenging the sentence
imposed by the district court. He first contends that the district
court should not have included a firearms enhancement in
calculating the guideline range. We find that this claim lacks
merit, as counsel for Miles stipulated to imposition of the
firearms enhancement. The other three sentencing issues are
conclusory challenges to the sentence that we find without merit.
Based on the presentence report and stipulations by the parties,
the district court calculated a guideline range of 235 to 293
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months. The court then imposed the lowest sentence in the range,
235 months of imprisonment, to be followed by five years of
supervised release.
After United States v. Booker, 543 U.S. 220 (2005),
courts must calculate the appropriate guideline range, consider the
range in conjunction with other relevant factors under the
guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
impose a sentence. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” United States v. Hughes,
401 F.3d 540, 546-47 (4th Cir. 2005) (citations omitted). “[A]
sentence imposed within the properly calculated Guidelines range
. . . is presumptively reasonable.” United States v. Green, 436
F.3d 449, 457 (4th Cir. 2006) (internal quotation marks and
citation omitted). We find the district court properly calculated
the guideline range. The district court’s sentence is the lowest
sentence available under the guideline range, and the court treated
the guidelines as advisory and considered the § 3553(a) factors.
Accordingly, we find Miles’s sentence to be reasonable under
Booker.
Miles’s challenge to the district court’s denial of his
motion to withdraw the guilty plea and vacate the sentence is
without merit. A defendant may withdraw a guilty plea prior to
sentencing under certain circumstances. Fed. R. Crim. P.
11(d)(2)(B). Miles’s motion to withdraw, filed after sentence was
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imposed, was not timely filed. Under Rule 11(e), a defendant
cannot withdraw a plea after sentence is imposed, and the plea can
only be attacked on direct appeal or collateral attack. Thus, the
district court did not err in denying Miles’s motion.
Miles asserts that his counsel below was constitutionally
ineffective, complaining that counsel stipulated to a drug quantity
of between 150 and 500 grams of crack for sentencing despite the
fact that the plea agreement provided for a guilty plea to “more
than fifty grams” of crack. “Ineffective assistance claims are not
cognizable on direct appeal unless counsel’s ineffectiveness
conclusively appears on the record.” United States v. James, 337
F.3d 387, 391 (4th Cir. 2003). Instead, to allow for adequate
development of the record, a defendant generally must bring his
ineffective assistance claims in a motion under 28 U.S.C. § 2255
(2000). United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Because the record does not conclusively show that counsel was
ineffective, we will not review this claim.
We reject Miles’s claim that his sentencing for 150 to
500 grams of cocaine base breached the plea agreement, because
Miles stipulated to that amount. His general claim of cumulative
error fails, as well, as we perceive no error in the district
court’s proceedings.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
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Accordingly, we affirm. 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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