UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4783
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHY ORLANDO NICHOLS, a/k/a Ricky O. Nichols,
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-04-424)
Submitted: March 7, 2007 Decided: April 6, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Randall Stuart Galyon, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richy Orlando Nichols pled guilty pursuant to a plea
agreement to one count of distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2000). The district
court sentenced Nichols to 210 months’ imprisonment. We find no
error and affirm Nichols’s conviction and sentence.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there were no
meritorious grounds for appeal. Nichols filed a pro se
supplemental brief in which he contends the district court erred in
its determination that he satisfied the criteria for enhancement as
a career offender. Additionally, Nichols contends his counsel
provided ineffective assistance. The Government elected not to
file a responsive brief.
Initially, Nichols contends the district court erred in
its application of U.S. Sentencing Guidelines Manual (USSG) § 4B1.1
(2004). Nichols argues that he does not have the requisite number
of qualifying offenses as his prior convictions were consolidated
for sentencing purposes. When reviewing the district court’s
application of the Sentencing Guidelines, we review findings of
fact for clear error and questions of law de novo. United
States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006). Because Nichols’s offenses occurred on different
dates, involved different crimes, were separated by an intervening
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arrest, and charged separately, we conclude the district court
appropriately characterized them as separate offenses for career
offender purposes. See United States v. Williams, 187 F.3d 429,
431 (4th Cir. 1999).
Nichols also contends that his counsel provided
ineffective assistance by failing to object to the court’s
application of USSG § 4B1.1. An ineffective assistance of counsel
claim is generally not cognizable on direct appeal, but should
instead be asserted in a post-conviction motion under 28 U.S.C.
§ 2255 (2000). See United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999). However, we have recognized an exception to the
general rule when “it ‘conclusively appears’ from the record that
defense counsel did not provide effective representation.” Id.
(quoting United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir.
1994)). Because the record does not conclusively establish that
counsel was ineffective for failing to object to an enhancement
that was properly applied, Nichols’s claim is not cognizable on
appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Nichols’s conviction and sentence.
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,
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but counsel believes that such a petition would be frivolous, then
counsel may move 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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