UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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