UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
*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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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
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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