UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4920
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD RAY WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-117)
Submitted: October 31, 2005 Decided: February 1, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter H. Paramore, III, LAW OFFICES OF WALTER H. PARAMORE, III
P.C., Jacksonville, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Angela H. Miller, Assistant United
States Attorney, Greensboro, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Ray White challenges his conviction and the 228-
month sentence imposed under the Sentencing Guidelines after he
pleaded guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e).* White’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), raising as a potential issue the constitutionality of
White’s Armed Career Criminal Act (“ACCA”) sentencing enhancement,
as well as a supplemental brief challenging the propriety of his
sentence under United States v. Booker, 543 U.S. 220 (2005). White
has also filed a pro se supplemental brief making various other
contentions.
First, White’s counsel questions whether the district
court’s imposition of the ACCA enhancement, under 18 U.S.C.
§ 924(e) and USSG § 4B1.4 (2002), contravened White’s Sixth
Amendment rights. The Sixth Amendment, however, does not always
“demand that the mere fact of a prior conviction used as a basis
for a sentencing enhancement be pleaded in an indictment and
submitted to a jury for proof beyond a reasonable doubt.” United
States v. Cheek, 415 F.3d 349, 352 (4th Cir. 2005). Rather, a
Sixth Amendment violation occurs where, for example, a sentencing
*
White entered his guilty plea in the Middle District of North
Carolina on June 9, 2003; his sentencing hearing was conducted on
November 24, 2003; and the district court entered its judgment on
December 10, 2003.
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court resolves a disputed fact about a prior conviction by looking
outside the judicial record of that conviction. See United States
v. Washington, 404 F.3d 834, 843 (4th Cir. 2005). Significantly,
White acknowledged at sentencing that he had at least four prior
convictions qualifying him for the ACCA enhancement. Accordingly,
the district court was not called upon to resolve any disputed
issues of fact regarding those convictions, and no Sixth Amendment
error occurred. See United States v. Collins, 412 F.3d 515, 523
(4th Cir. 2005) (holding that sentencing court did not commit
constitutional error in applying career offender enhancement where
defendant did not dispute qualifying prior convictions).
Counsel also challenges the propriety of White’s sentence
on the ground that the district court committed statutory Booker
error in sentencing White under the then-mandatory Guidelines
regime. Because White did not raise this issue in the district
court, our review is for plain error. See United States v. White,
405 F.3d 208, 215 (4th Cir. 2005). In White, we recognized that
imposing a sentence under the Guidelines as mandatory constitutes
error that was plain. Id. at 216-17. We further determined,
however, that a defendant cannot satisfy his burden of demonstrating
actual prejudice without showing “that the error of sentencing him
under a mandatory guidelines regime ‘affected the outcome of the
district court proceedings.’” Id. at 223 (quoting United States v.
Olano, 507 U.S. 725, 734 (1993)). Here, there is no non-speculative
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basis for concluding that the treatment of the Guidelines as
mandatory affected the selection of the sentence imposed on White.
The district court did not make any statements indicating that it
wished to impose a sentence below the Guidelines range. In fact,
it imposed a sentence at the high-end of the Guidelines range and
specifically noted that White had an extensive criminal history and
“recidivism is certainly a great potential in this case.” White
therefore is not entitled to resentencing on the ground that the
court committed statutory Booker error.
Finally, White filed a pro se supplemental brief raising
several issues. After examining the entire record, we conclude that
his issues of improper calculation of criminal history score,
improper enhancement for possession of a firearm in connection with
another felony, breach of plea agreement, and insufficient evidence
of possession of a firearm are without merit. He also raises
several issues of ineffective assistance of counsel related to
failure to inform him he could object to the presentence report,
failure to provide him with a transcript of the sentencing hearing,
and failure to investigate and properly challenge defense witnesses
on cross-examination. Claims of ineffective assistance of counsel
are not cognizable on direct appeal unless the record conclusively
establishes ineffective assistance. See United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). To allow for
adequate development of the record, claims of ineffective assistance
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generally should be brought in a 28 U.S.C. § 2255 motion. United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). We have examined
the record and find no conclusive evidence of ineffective
assistance. Thus, we will not consider this issue on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm White’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 adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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