UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4036
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER HENRY HAYNES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-04-43)
Submitted: September 20, 2006 Decided: October 3, 2006
Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
M. Victoria Jayne, Hickory, North Carolina, for Appellant. Amy E.
Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Christopher Henry Haynes appeals his 188-month prison
sentence resulting from his conviction for conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) (2000).
Haynes’ attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), acknowledging the absence of any
meritorious issues on appeal but raising the issue of whether the
Government breached the plea agreement by submitting objections.
Haynes filed a pro se supplemental brief raising claims regarding
the reasonableness of the sentence enhancements and ineffective
assistance of counsel. Finding no reversible error, we affirm.
Haynes contends that the Government breached the plea
agreement when it sought a six level enhancement for the
manufacture of methamphetamine creating a substantial risk of harm
to a minor under U.S. Sentencing Guidelines Manual § 2D1.1(b)(6)(C)
(2005). The written terms of the plea agreement did not prevent
the Government from seeking sentencing enhancements not stated
within the plea agreement. Haynes attempted to add such a clause,
but the Government did not agree and crossed it out of the plea
agreement. At the plea hearing, Haynes did not object and agreed
to the Government’s description of the plea agreement. The
Government did not breach the plea agreement when it sought the
enhancement.
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Haynes contends that the district court was unreasonable
in applying the enhancement. After United States v. Booker, 543
U.S. 220 (2005), a sentencing court is no longer bound by the range
prescribed by the sentencing guidelines, but still must calculate
and consider the guideline range as well as the factors set forth
in 18 U.S.C. § 3553(a) (2000). See United States v. Hughes, 401
F.3d 540, 546 (4th Cir. 2005). We will affirm a post-Booker
sentence if it is both reasonable and within the statutorily
prescribed range. Id.
Haynes’ two-year old son tested positive for
methamphetamine and injured himself with lye. Haynes contends that
other medications caused the positive test, but the laboratory
tested for other medications, such as amphetamine, and those tests
were negative. Haynes also contends that the test is inaccurate,
but has no evidence to the contrary. Based on the positive
methamphetamine test and the child’s lye injuries, the district
court reasonably found by a preponderance of the evidence that
Haynes created a substantial risk to a minor. The district court
reasonably applied the six offense level increase.
The district court properly calculated the sentencing
guideline range of 188-235 months’ imprisonment. As Haynes’ 188-
month prison sentence is within the properly calculated guideline
range, it is presumptively reasonable. United States v. Green, 436
F.3d 449, 457 (4th Cir. 2006). Haynes has not rebutted that
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presumption as the district court appropriately treated the
guidelines as advisory, considered the guideline range, and weighed
the relevant factors under 18 U.S.C. § 3553(a) (2000).
Haynes finally contends that his two trial attorneys were
ineffective in negotiating the plea agreement, not withdrawing his
guilty plea, and acting unprofessionally. 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 Haynes has failed to meet the
high burden necessary to raise ineffective assistance of counsel on
direct appeal.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
the judgment of the district court. This court requires that
counsel inform her 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.
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AFFIRMED
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